Woycik v. Woycik

537 A.2d 541, 13 Conn. App. 518, 1988 Conn. App. LEXIS 155
CourtConnecticut Appellate Court
DecidedFebruary 23, 1988
Docket4342
StatusPublished
Cited by31 cases

This text of 537 A.2d 541 (Woycik v. Woycik) is published on Counsel Stack Legal Research, covering Connecticut Appellate Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Woycik v. Woycik, 537 A.2d 541, 13 Conn. App. 518, 1988 Conn. App. LEXIS 155 (Colo. Ct. App. 1988).

Opinion

Borden, J.

This is an action to quiet title. The trial court concluded that the plaintiffs had acquired title by adverse possession to an area of land occupied by [519]*519a metal shed. The defendants appeal,1 contending that the findings of the trial court are clearly erroneous. The principal issue on this appeal is whether the trier of fact can rely upon inferences in concluding that adverse possession has been proven. We conclude that it can, and we find no error.

The trial court found the following facts. The plaintiffs own a tract of land adjacent to one owned by the defendants. The properties were each conveyed to the parties from a common grantor in 1965. Eventually, a dispute over the common boundary of their properties developed.

Within the disputed area there is a metal shed which is located entirely on what was the defendants’ land. The metal shed was erected in 1976 on the site of an older, larger shed, using part of the footings of the former shed. The plaintiffs had used the former shed since 1965. The present shed was erected under the direction of the named plaintiff and was thereafter used by him and his tenants. The defendants looked on as the present shed was built.

The court concluded that the plaintiffs had failed to prove adverse possession of the disputed area, with the exception of the area occupied by the shed, because the land had been used in common by the parties. The court did find by “clear and positive proof,”2 however, that [520]*520the area occupied by the present shed and its predecessor were under the sole use and control of the plaintiffs, to a degree that the plaintiffs maintained exclusive and uninterrupted possession of that limited area and ousted the defendants from possession uninterruptedly for a period of more than fifteen years. Accordingly, the court found for the plaintiffs on their claim of adverse possession to that limited portion of the disputed area.

“In order to establish adverse possession, the claimant must oust an owner of possession and keep such owner out uninterruptedly for fifteen years by an open, visible, and exclusive possession under a claim of right with intent to use the property as his own and without the consent of the owner.” Clark v. Drska, 1 Conn. App. 481, 485, 473 A.2d 325 (1984). “The use is not exclusive if the adverse user merely shares dominion over the property with other users. . . . Such a possession is not to be made out by inference, but by clear and positive proof. ... In the final analysis, whether possession is adverse is a question of fact for the trier.” (Citation omitted.) Whitney v. Turmel, 180 Conn. 147, 148, 429 A.2d 826 (1980).

I

The defendants first argue that the evidence does not support the court’s conclusion that the shed was under the exclusive possession of the plaintiffs. The only evidence probative of exclusive possession of the area occupied by the metal shed was that the shed was erected at the direction of the named plaintiff and used to store his lawnmower, rakes and snow shovel. While the defendants acknowledge that it may have been reasonable to infer from those facts that the defendants did not make use of the shed and that the plaintiffs’ use was to the exclusion of the defendants, they argue that proof of that essential element of a claim of adverse [521]*521possession by such an inference does not constitute clear and positive proof of exclusive possession. We disagree.

The defendants’ argument rests upon language found in Whitney v. Turmel, supra, that exclusive possession “is not to be made out by inference.” Id. In support of this proposition, Whitney relies on dictum in Robinson v. Myers, 156 Conn. 510, 517, 244 A.2d 385 (1968), which in turn quotes identical language in Hurlburt v. Bussemey, 101 Conn. 406, 412, 126 A. 273 (1924), which quotes Huntington v. Whaley, 29 Conn. 391, 398 (1860). This concept that adverse possession “is not to be made out by inference,” however, can be properly understood only by a thorough examination of Huntington v. Whaley, supra, where the principle appears to have originated in Connecticut jurisprudence.

In Huntington v. Whaley, supra, a stone wall, three feet wide, was the subject of a boundary dispute. The wall was set wholly on the plaintiffs’ land. For more than fifteen years, the defendant held exclusive possession of his own land up to the wall. On the basis of this fact and his belief that the center of the wall divided the parties’ property, the defendant claimed to have ownership of the wall to its center by adverse possession. After the jury returned a verdict for the defendant, the plaintiffs challenged the court’s instruction to the jury to the effect “that if they should find that the defendant, and those under whom he claimed title, had occupied the land on the west side of the wall up to the wall, supposing and believing the wall to be the dividing line between the lands in question, and had always treated the centre of the wall as the dividing line without objection, such occupancy would be presumptive evidence of the place of the true line . . . . ” (Emphasis added.) Id., 393. In argument before our Supreme Court, the defendant sought to justify this jury instruction on the basis of the well settled proposition that [522]*522“[wjhere a person occupies land to the side of a stone wall, ditch, unnavigable river, or other divisional fence between him and the adjoining proprietor, the presumption of law is that the centre of such divisional fence is the true dividing line, and such presumption and inference of law can only be rebutted by proof of an express limitation or restriction of such occupancy.” Id., 394.

The Huntington court rejected this argument. It concluded that “[t]he suggestion in the charge therefore, that the defendant’s occupancy of his own land in the manner claimed would be presumptive evidence of the place of the true line between the lands, seems to have had no application to the issue, and we think it was calculated to mislead the jury. The only legitimate inquiry for the jury was, whether the defendant, and those under whom he claimed, had, for the period of fifteen years, had the actual, open, adverse occupancy and possession of the controverted property, claiming it as their own, and actually excluding all other persons from its possession; and there was no presumption, either of law or of fact, that the property was out of the possession of its real owner, or in the adverse occupancy of the defendant or any other person.” Id., 398. From this analysis, the court set forth the following, oft-quoted, principles: “The doctrine of adverse possession is to be taken strictly. An adverse possession is not to be made out by inference, but by clear and positive proof. Every presumption is in favor of possession in subordination to the title of the true owner.” Id.

Despite its unfortunate reference to proof “by inference,” we read Huntington v. Whaley, supra, to condemn only the use of presumptions to aid the proof of essential elements of a claim of adverse possession, not inferences. At issue in Huntington

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Bluebook (online)
537 A.2d 541, 13 Conn. App. 518, 1988 Conn. App. LEXIS 155, Counsel Stack Legal Research, https://law.counselstack.com/opinion/woycik-v-woycik-connappct-1988.