Supronowicz v. Eaton ( 2024 )

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JACEK SUPRONOWICZ ET AL. v.
MICHAEL EATON ET AL.
(AC 45508)
Elgo, Cradle and Westbrook, Js.
Syllabus
The plaintiffs sought to quiet title by adverse possession to certain of the
defendants’ property that was adjacent to their own. The plaintiffs
acquired title to their property in 2011 and claimed that they had used
a portion of the defendants’ property, which was located between the
plaintiffs’ home and a creek set inside of a shallow ravine, in various
ways since that time. The plaintiffs also asserted that their predecessors
in title had used the disputed area continuously from 1961 to 2011. The
disputed area consisted predominantly of a grassy side yard, which the
plaintiffs maintained, and included a small corner of the plaintiffs’ paved
driveway. Shortly after purchasing their property, the plaintiffs sought
and received permission from the defendants’ predecessor in title to
install drains in the disputed area to divert water from the roof and
foundation of their residence into the creek. The defendants purchased
their property in 2017. Approximately one year later, they had the prop-
erty surveyed and determined that they were the record title holders
of the disputed area. Thereafter, the defendants began to use and main-
tain the disputed area and asked the plaintiffs to stop entering it. The
plaintiffs ignored the defendants’ request and continued to use the dis-
puted area until 2019, when the defendants erected a plastic fence along
the border of their property as it was reflected in the survey. The
plaintiffs commenced the underlying action, alleging that they and their
predecessors in title had been in open, exclusive, hostile, adverse and
actual possession under a claim of right of the disputed area for more
than fifteen years, as required by the applicable statute (§ 52-575 (a)).
The defendants filed a counterclaim seeking a declaratory judgment
affirming their ownership of the disputed area and to quiet title. There-
after, the defendants filed a motion for summary judgment, arguing
that the plaintiffs could not demonstrate that the essential elements of
adverse possession had been met. The trial court granted the defendants’
motion, and the plaintiffs appealed to this court. Held:
1. The trial court improperly rendered summary judgment for the defendants
because there was a genuine issue of material fact as to whether privity
existed between the plaintiffs and their predecessors in title: the plain-
tiffs were required to demonstrate privity between themselves and their
predecessors in title in order to tack the adverse use of their predeces-
sors to their own use to satisfy the fifteen year period set forth in § 52-
575 (a) and to acquire title to the disputed area because they purchased
their property and began using the disputed area only eight years prior
to the commencement of the action; moreover, although the plaintiffs’
predecessors in title never expressly conveyed the disputed area to the
plaintiffs, there was a genuine issue of material fact as to whether privity
existed between the plaintiffs and their predecessors in title under the
theory of implied conveyance; furthermore, several courts in other juris-
dictions have found an implied transfer of a disputed area on the basis
of the existence of a natural boundary that appeared to enclose the
property, and the disputed area in the present case was bounded by a
ravine and a creek, and the plaintiffs’ predecessors in title believed that
the creek was the boundary line of their property and that they owned the
disputed area until they sold their property to the plaintiffs; accordingly,
whether an implied transfer could be inferred from the evidence raised
a question of fact that could not properly be resolved by the trial court
on a motion for summary judgment.
2. The trial court improperly rendered summary judgment for the defendants
because there was a genuine issue of material fact as to whether the
plaintiffs recognized the defendants’ superior title to the disputed area:
although it was undisputed that the plaintiffs asked the defendants’
predecessor in title for permission to install drains in the disputed
area shortly after the plaintiffs had purchased their property, there was
conflicting evidence regarding whether the permission sought was for
the use of the disputed area or for the resulting increase in water into
the creek, which the plaintiffs believed was owned by the defendant’s
predecessors in title and which marked the then supposed boundary
line, and that factual dispute was required to be resolved by the fact
finder, not by the trial court at summary judgment.
3. The trial court improperly rendered summary judgment for the defendants
because there was a genuine issue of material fact regarding the exclusiv-
ity of the plaintiffs’ use of the disputed area: there was a genuine issue
of material fact as to whether adverse possession had been established
prior to the defendants’ entry into the disputed area in 2018, as the
plaintiffs presented evidence that they and/or their predecessors in title
had used the disputed area continuously from 1961 until the defendants
erected a fence around it in 2019; moreover, to the extent that the
plaintiffs did not establish adverse possession prior to 2018, it was the
role of the fact finder to determine whether the plaintiffs’ use was
sufficient to satisfy the exclusivity requirement needed to establish
adverse possession despite the defendants’ use of the disputed area
beginning in 2018.
Argued November 9, 2023—officially released March 5, 2024
Procedural History
Action seeking to quiet title to certain real property,
and for other relief, brought to the Superior Court in the
judicial district of Ansonia-Milford, where the named
defendant et al. filed a counterclaim; thereafter, the
court, Hon. Irene P. Jacobs, judge trial referee, granted
the motion for summary judgment filed by the named
defendant et al. and rendered judgment thereon, from
which the plaintiffs appealed to this court. Reversed;
further proceedings.
Ian A. Cole, for the appellants (plaintiffs).
Arthur C. Zinn, for the appellees (named defendant
et al.).
Opinion
WESTBROOK, J. In this action to quiet title alleging
ownership by adverse possession, the plaintiffs, Jacek
Supronowicz and Iwona Supronowicz, appeal from the
summary judgment rendered by the trial court in favor
of the defendants Michael Eaton and Stephanie
Hawker.1 The plaintiffs claim that the court improperly
concluded that they could not establish their claim of
adverse possession as a matter of law because they
(1) failed to demonstrate that privity existed between
themselves and their predecessors in title for purposes
of tacking periods of possession, (2) acknowledged the
defendants’ superior title to the disputed area, and (3)
failed to show that their use of the disputed area was
exclusive. The plaintiffs assert that genuine issues of
material fact remain as to each of these issues and that
the court therefore improperly granted the defendants’
motion for summary judgment. We agree with the plain-
tiffs as to each of their claims and, for the reasons that
follow, reverse the judgment of the trial court.
The following facts, viewed in the light most favor-
able to the plaintiffs, and procedural history are relevant
to our resolution of this appeal. The parties are the
owners of adjoining parcels of land on Fair Oaks Drive
in Shelton. The plaintiffs are the record owners of the
parcel at 16 Fair Oaks Drive. Jacek Supronowicz
acquired title to this property by warranty deed from
John Nangle and Melissa Nangle (collectively, Nangles)
in 2011.2 The plaintiffs claim that they have used a
portion of the property located between their home and
a creek set inside of a shallow ravine—the disputed
area—in various ways since they purchased their prop-
erty. Following the natural path of the creek, the dis-
puted area extends perpendicular to Fair Oaks Drive
for more than two hundred feet.3 It is widest along Fair
Oaks Drive, extending, at its greatest width, about fifty
feet into the defendants’ titled property. Although a
small corner of the plaintiffs’ paved driveway lies on
the disputed area, it is predominately a grassy side yard
populated with trees, shrubs, and a utility pole. The
plaintiffs ‘‘have used a portion of the [disputed] area
as their driveway and have maintain[ed] a lawn, trees,
shrubs and a utility pole on the other portions of the
[disputed] area.’’ On June 1, 2011, shortly after purchas-
ing their property, the plaintiffs sought permission from
the town of Shelton to install drains to divert water
from the roof and foundation of their residence to the
creek. In connection with the permit application, the
plaintiffs sought and received permission from the
defendants’ predecessor in title to install the drains in
the disputed area.4 The plaintiffs’ predecessors in title
also used the disputed area in various ways from 1961
to 2011.5
The defendants are the record owners of the parcel
at 12 Fair Oaks Drive, which is adjacent to the plaintiffs’
property. They acquired title to this property by war-
ranty deed on May 15, 2017. Approximately one year
after the conveyance, the defendants had the property
surveyed, which revealed that the defendants are the
record title holders of the disputed area. In the months
following the survey, the defendants spoke with one or
more of the plaintiffs to request that the plaintiffs not
enter the disputed area and to inform the plaintiffs
that the defendants were the record title holder of the
disputed area. The plaintiffs, however, continued to
enter the disputed area until, in August, 2019, the defen-
dants erected an orange plastic fence along the border
of the plaintiffs’ property line as reflected in the defen-
dants’ survey.
The plaintiffs filed the underlying action in Novem-
ber, 2019, seeking to quiet title by adverse possession to
the disputed area. The plaintiffs allege in their operative
complaint6 that they and their predecessors in title have
been in ‘‘open, exclusive, hostile, adverse, and actual
possession under a claim of right’’ of the disputed area
for more than fifteen years, as required by General
Statutes § 52-575 (a).7 The plaintiffs allege that they and
their predecessors in title had used a portion of the
disputed area continuously as their driveway and had
maintained the lawn, trees, shrubs, and a utility pole
in the disputed area for more than fifteen years before
the defendants put up the fence. The defendants filed
an answer denying the essential allegations of the com-
plaint and a counterclaim seeking a declaratory judg-
ment affirming their ownership of the disputed area
and quieting title in them.
The defendants subsequently filed a motion seeking
summary judgment on the complaint and on their coun-
terclaim and a memorandum of law in support thereof
in which they argued that the plaintiffs could not dem-
onstrate that the essential elements of adverse posses-
sion were met. The plaintiffs filed an objection to the
defendants’ motion for summary judgment, arguing that
they and their predecessors in title had continuously
and openly possessed the disputed area for more than
the requisite fifteen year period.
The trial court, Hon. Irene P. Jacobs, judge trial ref-
eree, issued a memorandum of decision on the motion
for summary judgment on April 6, 2022. The court held
that, although the evidence suggests that both the plain-
tiffs and their predecessors in title had used the dis-
puted area, the plaintiffs were not in privity with their
predecessors in title because the plaintiffs’ predeces-
sors did not expressly convey to them the disputed area
either orally or by deed and, thus, the plaintiffs could
not tack their successive periods of adverse possession
for purposes of satisfying the fifteen year statutory
period. The court additionally held that ‘‘[t]he plaintiffs
previously offered to purchase the disputed property
from the defendants and therefore have acknowledged
the defendants’ superior title.’’8 The court further held
that ‘‘the evidence shows that the plaintiffs did not
exclusively possess the disputed area. Rather, both par-
ties testified to using and maintaining the area.’’ Regard-
ing the defendants’ counterclaim, the court held that
the defendants had shown that ‘‘they solely possess the
disputed area. Accordingly, no genuine issue of material
fact exists with respect [to] the defendants’ counter-
claim.’’ The court granted the defendants’ motion for
summary judgment.9
The plaintiffs subsequently filed a motion for reargu-
ment and reconsideration. The plaintiffs argued that
the court had ‘‘erred in concluding that, as a matter of
law, the [plaintiffs] could not tack the adverse use by
their predecessor[s] in title to their own adverse use
to meet the fifteen year limitations period.’’ In support
of their argument, the plaintiffs asserted that the intent
of their predecessor in title to convey the disputed area
‘‘may be implied from the circumstances and need not
be express . . . .’’ (Internal quotation marks omitted.)
The court denied the plaintiffs’ motion on May 9, 2022.
This appeal followed.
On appeal, the plaintiffs argue that the court improp-
erly concluded as a matter of law that (1) there was
no privity between the plaintiffs and their predecessors
in title for purposes of tacking periods of possession,
(2) no genuine issue of material fact remained regarding
whether the plaintiffs admitted superior title in the
defendants, and (3) no genuine issue of material fact
remained regarding whether the defendants’ repeated
entry into the disputed area beginning in July, 2018,
defeated the exclusivity of the plaintiffs’ use. The defen-
dants respond that the court properly determined that
there were no genuine issues of material fact and that
they were entitled to summary judgment as a matter
of law. For the reasons that follow, we agree with the
plaintiffs that the evidence, construed in the manner
most favorable to them, supports that there is a genuine
issue of material fact as to each of the three claims
raised by the plaintiffs.
As a preliminary matter, we set forth our standard
of review and other relevant legal principles. ‘‘Practice
Book § 17-49 provides that summary judgment shall be
rendered forthwith if the pleadings, affidavits and any
other proof submitted show that there is no genuine
issue as to any material fact and that the moving party
is entitled to judgment as a matter of law. In deciding
a motion for summary judgment, the trial court must
view the evidence in the light most favorable to the
nonmoving party. . . . The party moving for summary
judgment has the burden of showing the absence of
any genuine issue of material fact and that the party
is, therefore, entitled to judgment as a matter of law.
. . . On appeal, we must determine whether the legal
conclusions reached by the trial court are legally and
logically correct and whether they find support in the
facts set out in the memorandum of decision of the
trial court. . . . Our review of the trial court’s decision
to grant the defendant’s motion for summary judgment
is plenary.’’ (Internal quotation marks omitted.)
Bellemare v. Wachovia Mortgage Corp., 284 Conn. 193,
198–99, 931 A.2d 916 (2007).
‘‘When title is claimed by adverse possession, the
burden of proof is on the claimant. . . . The essential
elements of adverse possession are that the owner shall
be ousted from possession and kept out uninterruptedly
for fifteen years under a claim of right by an open,
visible and exclusive possession of the claimant without
license or consent of the owner. . . . The use is not
exclusive if the adverse user merely shares dominion
over the property with other users. . . . Such a posses-
sion is not to be made out by inference, but by clear
and positive proof.’’ (Internal quotation marks omitted.)
Dowling v. Heirs of Bond, 345 Conn. 119, 143, 282 A.3d
1201 (2022).
‘‘It is sufficient if there is an adverse possession con-
tinued uninterruptedly for fifteen years whether by one
or more persons. . . . [T]he possession [however]
must be connected and continuous . . . .’’ (Internal
quotation marks omitted.) Har v. Boreiko, 118 Conn.
App. 787, 799, 986 A.2d 1072 (2010). ‘‘If one party’s
period of use or possession is insufficient to satisfy the
fifteen year requirement, that party may tack on the
period of use or possession of someone who is in privity
with the party, a relationship that may be established
by showing a transfer of possession rights.’’ (Internal
quotation marks omitted.) Caminis v. Troy, 300 Conn.
297, 310 n.14, 12 A.3d 984 (2011).
‘‘The authoritative rule of tacking successive posses-
sions for the acquisition of title after fifteen years is
found in Smith v. Chapin, 31 Conn. 530 [531–32] (1863).
. . . Privity of estate is not necessary, but rather, privity
of possession. It is sufficient if there is an adverse pos-
session continued uninterruptedly for fifteen years
whether by one or more persons. This was settled in
Fanning v. Willcox, 3 Day [Conn.] 258 [1808]. Doubtless
the possession must be connected and continuous, so
that the possession of the true owner shall not construc-
tively intervene between them; but such continuity and
connection may be effected by any conveyance agree-
ment or understanding which has for its object a trans-
fer of the rights of the possessor, or of his possession,
and is accompanied by a transfer of possession in fact.
. . . Privity of possession is defined as a continuity of
actual possession, as between prior and present occu-
pant, the possession of the latter succeeding the posses-
sion of the former under deed, grant, or other transfer
or by operation of law.’’ (Citations omitted; emphasis
omitted; internal quotation marks omitted.) Matto v.
Dan Beard, Inc., 15 Conn. App. 458, 479–80, 546 A.2d
854, cert. denied, 209 Conn. 812, 550 A.2d 1082 (1988).
‘‘[T]he failure of a predecessor in title to convey the
disputed area, either orally or by deed, destroys the
connection between successive adverse claimants
which is necessary to the successful acquisition of title
by tacking successive adverse possessions . . . . See
also 16 R. Powell, Real Property (2005) § 91.10 [2] (tack-
ing not permitted when it is shown that the claimant’s
predecessor in title did not intend to convey the dis-
puted [area]).’’ (Internal quotation marks omitted.) Dur-
kin Village Plainville, LLC v. Cunningham, 97 Conn.
App. 640, 652, 905 A.2d 1256 (2006).
To reverse the court’s grant of summary judgment,
there must be a genuine issue of material fact as to
each of the issues raised, as ‘‘[a] defendant’s motion
for summary judgment is properly granted if it raises
at least one legally sufficient defense that would bar
the plaintiff’s claim . . . .’’ (Internal quotation marks
omitted.) Costello & McCormack, P.C. v. Manero, 194
Conn. App. 417, 430, 221 A.3d 471 (2019). We accord-
ingly address each issue in turn, first addressing the
issue of privity, then turning to the issue of recognition
of superior title, and, last, addressing the issue of exclu-
sivity. We conclude that there is a genuine issue of
material fact as to each issue.
I
The plaintiffs first argue that the court improperly
concluded that, for purposes of satisfying the fifteen
year statutory period by tacking on their predecessors
in title’s period of adverse possession of the disputed
area, there was no genuine issue of material fact that
the plaintiffs lacked the requisite privity with their pre-
decessors in title because the predecessors never
expressly conveyed the disputed area to the plaintiffs.
The plaintiffs argue that the evidence, construed in the
manner most favorable to them, supports that their
predecessors impliedly conveyed to them the disputed
area and that, therefore, there is a genuine issue of
material fact as to whether privity exists. We agree that
there is a genuine issue of material fact as to whether
privity exists in this case.
It is undisputed that the plaintiffs have not themselves
adversely held the disputed area for the fifteen years
required under § 52-575 (a) to acquire title by adverse
possession. They therefore must tack the adverse use
of their predecessors in title to their own use to satisfy
the statutory period and acquire title to the disputed
area. To do so, they are required to show that there
was privity between themselves and their predecessors
in title. ‘‘It is sufficient if there is an adverse possession
continued uninterruptedly for fifteen years whether by
one or more persons. . . . [T]he possession [however]
must be connected and continuous . . . .’’ (Internal
quotation marks omitted.) Har v. Boreiko, supra, 118
Conn. App. 799. ‘‘If one party’s period of use or posses-
sion is insufficient to satisfy the fifteen year require-
ment, that party may tack on the period of use or posses-
sion of someone who is in privity with the party, a
relationship that may be established by showing a trans-
fer of possession rights.’’ (Internal quotation marks
omitted.) Caminis v. Troy, supra, 300 Conn. 310 n.14.
In their brief in response to the defendants’ motion
for summary judgment, the plaintiffs argued that ‘‘the
intent of the grantor to transfer possession of an area
not specifically referenced in the deed of conveyance,
but contiguous with it, may be [inferred] from all the
surrounding circumstances and an express written or
oral statement of intent is not necessary.’’ Specifically,
the plaintiffs argued that ‘‘the intent of the Nangles [the
plaintiffs’ predecessors in title] to transfer any interest
that they may have had in the disputed parcel may
be inferred from the surrounding circumstances. Their
testimony shows that they absolutely believed that the
disputed parcel was part of 16 Fair Oaks Drive, which
they conveyed by deed to the plaintiffs.’’
The trial court granted the defendants’ motion for
summary judgment without addressing this argument in
its memorandum of decision. Relying on Har v. Boreiko,
supra, 118 Conn. App. 787, it held that there could be
no privity as a matter of law because the plaintiffs’
predecessors in title did not convey the disputed area
either orally or by deed.10 In reaching this conclusion,
the court relied on the following passage from Har:
‘‘[T]he failure of a predecessor in title to convey the
disputed area, either orally or by deed, destroys the
connection between successive adverse claimants
which is necessary to the successful acquisition of title
by tacking successive adverse possessions . . . . See
also 16 R. Powell, [supra] § 91.10 [2] (tacking not permit-
ted when it is shown that the claimant’s predecessor
in title did not intend to convey the disputed parcel).’’
(Internal quotation marks omitted.) Har v. Boreiko,
supra, 800, quoting Durkin Village Plainville, LLC v.
Cunningham, supra, 97 Conn. App. 652.
The court’s reliance on Har and related case law,
however, is misplaced. The passage from Har quoted
in the preceding paragraph comes from Durkin Village
Plainville, LLC; see Har v. Boreiko, supra, 118 Conn.
App. 800; which in turn quoted Marquis v. Drost, 155
Conn. 327, 332, 231 A.2d 527 (1967). See Durkin Village
Plainville, LLC v. Cunningham, supra, 97 Conn. App.
652. These cases all involve different factual circum-
stances than those present here. In Marquis, the prede-
cessor in title had expressly excluded the disputed area
from the deed. Marquis v. Drost, supra, 329 (‘‘[i]t is
undisputed that each deed in the plaintiffs’ chain of
title to lot 16 expressly excluded and excepted [the
disputed area] from the conveyance of the lot’’). Our
Supreme Court additionally noted that the predecessor
in title in that case had not adversely used the disputed
area, making the issue of tacking moot, because there
was no prior period of adverse use onto which the
claimant could tack their own use. Id., 331–32. Our
Supreme Court nevertheless went on to say in dicta
that a ‘‘connection between successive adverse claim-
ants . . . is necessary to the successful acquisition of
title by tacking successive adverse possessions under
the rule noted in such cases as Smith v. Chapin, [supra]31 Conn. 530.’’ Marquis v. Drost, supra, 332. Although
our Supreme Court did state in Marquis that there was
no oral conveyance of the disputed area and that the
deed had expressly excluded the disputed area, it did
not, as paraphrased by Durkin Village Plainville, LLC,
expressly limit the required connectivity between suc-
cessive adverse claimants to an oral or written convey-
ance of the disputed area. Id.; see also Durkin Village
Plainville, LLC v. Cunningham, supra, 652.
The question, therefore, is what evidence is sufficient
to find that a grantor intended to convey the disputed
area to the grantee, thereby establishing the continuous
connection between successive adverse claimants
required to find privity and tack the successive adverse
uses. It is clear from our case law; see Marquis v. Drost,
supra, 155 Conn. 332; Har v. Boreiko, supra, 118 Conn.
App. 800; Durkin Village Plainville, LLC v. Cunning-
ham, supra, 97 Conn. App. 652; that an express convey-
ance of the disputed area either orally or by deed is
sufficient to establish that the grantor intended to con-
vey the disputed area. Neither this court nor our
Supreme Court, however, has addressed whether a
grantor’s intent to convey a disputed area may be estab-
lished by implication.
This issue was, however, addressed by the Superior
Court in Zhang v. 56 Locust Road, LLC, Docket No. CV-
XX-XXXXXXX-S, 2016 WL 624045 (Conn. Super. January
13, 2016), aff’d, 177 Conn. App. 420, 172 A.3d 317, cert.
denied, 327 Conn. 986, 175 A.3d 44 (2017). Although
not binding on this court, Zhang is persuasive, particu-
larly in light of the majority rule in other jurisdictions
discussed subsequently in this opinion. See annot., 17
A.L.R.2d 1160, § 8 (1951).
In Zhang, the adverse claimants argued that they may
tack their adverse use of the disputed area to that of
their predecessors in title. Zhang v. 56 Locust Road,
LLC, supra, 2016 WL 624045, *8. Although there was
no express conveyance of the disputed area, either
orally or by deed, the court found that the facts and
circumstances of the use of the disputed area leaves
‘‘no doubt that the [predecessors in title] intended to
convey the disputed area along with the deed-described
property, in the transactions leading to ownership of
40 Locust Road by the plaintiffs.’’ Id., *12.
The property at issue in Zhang included a horse riding
ring with ancillary structures that were partially on the
claimant’s property and partially on the disputed area.
Id., *4. The court reasoned that ‘‘the discussions, mar-
keting materials, etc., as well as the layout of the prop-
erty with the riding ring and fencing all facially
appearing to be part of the conveyed property, leave
the court with the firm impression that there was an
intent to convey the entirety of 40 Locust Road, includ-
ing all ancillary or appurtenant interests . . . .’’ Id.,
*10. The court emphasized that it ‘‘believe[d] that the
physical layout virtually mandates such a conclusion.
The riding ring . . . is essentially indivisible in a struc-
tural sense and a usage sense. The same can be said
(albeit to a lesser extent) about the fence that . . .
almost completely surrounds that entire end of the
property including the riding ring, providing an enclo-
sure for horses . . . . Quite simply, it would be irratio-
nal to convey part of a riding ring or paddock to a
buyer of the property, leaving the remainder of the
enclosed oval area out of the transaction.’’ (Citation
omitted; emphasis in original; footnote omitted.) Id.,
*11. The court therefore found an implied intent to
convey the disputed area along with the property
described in the deed and found that the claimant could
therefore tack their predecessor’s adverse use of the
disputed area to their own. Id., *11–12, 16. For the
following reasons, we conclude that the approach
employed in Zhang is best suited to resolving the issue
of privity and that, applying that approach, there is a
genuine issue of material fact as to whether privity
exists in this case under a theory of implied conveyance.
As outlined by the American Law Reports, which
attempts to compile the decisional law of other jurisdic-
tions, ‘‘the doctrine which appears generally to prevail
is that a transfer in fact of adverse possession, or of
the adverse possession and claim of an area not within
the description of the deed or contract, will be effective
for tacking purposes though the same appears to have
occurred by implication only, by force of the circum-
stances and acts of the parties, and is not shown to
have been evidenced by any declaration of transfer or
other direct words. . . . A requirement of express
delivery of possession would be not only illogical but
exceedingly burdensome in view of the numerous cases
in which the parties though claiming all of the land in
question, and in a manner characterizing their holdings
as adverse to the whole world, were not aware that
any of it was not within the deed or contract. The
circumstances generally are to be considered in
determining whether possession of the disputed area
was transferred to the grantee.’’ Annot., 17 A.L.R.2d,
supra, § 8, pp. 1160–61.
‘‘[W]here title by adverse possession is claimed to an
area contiguous to that described in the deed or con-
tract, and the whole property, described and not
described, was in use by the vendor as a unit, and the
fact thereof was apparent by reason of the position of
fences, hedges, buildings, etc., the instrument instead
of operating to negative the element of privity, seems
to possess, as conjoined with such circumstances, an
evidentiary value in support of privity, and this is most
noticeable in instances in which the description used
was such that it might reasonably have been supposed
to include the whole property.’’ (Footnote omitted.) Id.,
§ 1, p. 1131.
From our review of the law of other jurisdictions, it
is apparent that the majority rule is that privity can be
established by an implied conveyance of the disputed
area.11 Implication of a transfer of possession of the
disputed area is most commonly found in two circum-
stances: (1) when the disputed area is enclosed within
the deed described property12 or (2) when a building
or other structure stands in part on the disputed area.13
There are, additionally, a few cases that find that the
disputed area was impliedly conveyed because a natural
boundary appeared to enclose the property. In Freed
v. Cloverlea Citizens Assn., Inc., 246 Md. 288, 291–92,
228 A.2d 421 (1967), the adverse claimants and their
predecessors in title maintained an area to the south
of their property that abutted a naturally formed ditch.
The claimants were told by their predecessors in title
that the property line went to the ditch, although the
real property line was several feet to the north of it.
Id., 291, 294. The claimants and their predecessors main-
tained the disputed area by cultivating a garden, as
well as planting trees, cleaning the ditch of debris, and
mowing the lawn. Id., 292–94. One of the claimants’
predecessors in title said that he never erected a fence
to enclose the property because the ditch acted as a
natural boundary. Id., 292. After reviewing persuasive
law from other jurisdictions, the court in Freed analo-
gized the circumstances of the case to cases in which
the disputed area had been enclosed by a fence and
concluded that the claimants could tack the adverse
use of their predecessors to their own use.14 Id., 301–304.
In Clithero v. Fenner, 122 Wis. 356, 360, 99 N.W. 1027(1904), the Supreme Court of Wisconsin similarly found
privity sufficient to tack successive adverse uses when
a creek enclosed the disputed area with the property
transferred by deed. The court stated: ‘‘It is . . . appar-
ent from the evidence that [the] respondent took pos-
session of the whole, by occupying it, [enclosing] it,
and using the part specified in the deed and this adjoin-
ing strip as an entirety. In the light of these circum-
stances, the presumption that the conveyance must be
limited to the calls of the deed is overcome by the
established facts that [the] respondent obtained posses-
sion of the tract outside of the description as a part of
the premises purchased under the deed. Such a transfer
establishes a successive relationship to the tract in con-
troversy, making the parties to the transfer privies in
possession; thus conferring all the legal rights of the
father, as vendor, on [the] respondent, as his vendee.’’
Id., 361.
Whether privity exists in cases of implied transfer-
ence is inherently a fact dependent inquiry. In the pres-
ent case, there is a genuine issue of material fact as to
whether privity exists. This is based on whether the
plaintiffs’ predecessors in title impliedly transferred the
disputed area to the plaintiffs. Although there is no
fence or building on the disputed area in this case, the
disputed area is bound by a ravine and a creek. Several
cases have analogized natural boundaries to cases
involving fences and have found an implied transfer on
the basis of the existence of a natural boundary. The
plaintiffs’ predecessors in title, additionally, believed
that the creek was the boundary line and that they
owned the disputed area up until the time they sold the
property to the plaintiffs.15 Whether an implied transfer
of the disputed area may be inferred from the evidence
in the present case raises a question of fact that cannot
properly be resolved by the court at summary judgment.
II
The plaintiffs next claim that the court improperly
rendered summary judgment because there is a genuine
issue of material fact as to whether the plaintiffs recog-
nized the defendants’ superior title16 to the disputed
area by asking the defendants’ predecessor in title for
permission to install drains on the disputed area three
months after the plaintiffs purchased their property.17
We agree.
Although summary judgment is certainly not pre-
cluded in adverse possession cases, adverse possession
raises predominantly fact intensive issues that generally
must be resolved at trial. Our Supreme Court has stated
that ‘‘[i]t is the province of the jury, or court sitting
as a jury, to determine from conflicting or doubtful
evidence the existence of facts necessary to constitute
adverse possession . . . . If there is at least some evi-
dence, although slight, which is sufficient to be submit-
ted to the jury, and which tends to show the existence
of the essential facts alleged to constitute adverse pos-
session, and such evidence is disputed, or, if undis-
puted, is of a doubtful character, the question as to the
existence of such facts is one of fact for the jury and
should be submitted to [it] for determination, under
proper instructions from the court; or in case of a trial
by the court alone, the question is one of fact for the
court sitting as a jury.’’ (Citation omitted; internal quota-
tion marks omitted.) O’Connor v. Larocque, 302 Conn.
562, 573, 31 A.3d 1 (2011).
Here, the defendants submitted undisputed evidence
that the plaintiffs had asked the defendants’ predeces-
sor in title for permission to install drains on the dis-
puted area shortly after the plaintiffs purchased their
property. According to the defendants, this evidence is
an acknowledgement by the plaintiffs that the defen-
dants hold superior title to the disputed area. The signed
document provides in relevant part that the defendants’
predecessors ‘‘hereby give permission to the present
owners of 16 Fair Oaks Drive, Shelton, Connecticut, to
install one (1) curtain drain and one (1) footing drain,
both of which will drain into the water course channel
that runs parallel to the boundary of our properties.
The present owners of 16 Fairs Oaks Drive shall be
responsible for all costs related to the installation and
maintenance of both drains. This agreement is limited
to the installation of these two drains and nothing addi-
tional.’’
The defendants argue that, by seeking this permis-
sion, the plaintiffs unequivocally have recognized the
defendants’ superior title to the disputed area.
According to the defendants, the language of the docu-
ment was unambiguous and clearly shows that permis-
sion was sought to enter the disputed property, as the
document specifically refers to the construction and
maintenance of the drains. They claim that ‘‘[t]he letters
specifically limited permission to the installation of the
drains and imposed an affirmative obligation on the
plaintiffs to maintain them at the plaintiffs’ own cost,
neither of which permissions would have been neces-
sary if the plaintiffs’ actions were limited to improve-
ments conducted on their own property. This evidence
alone decisively demonstrates [that] the plaintiffs were
aware of the need for, and actively sought, the defen-
dants’ predecessors’ consent to enter the disputed area
and is fatal to the plaintiffs’ claim.’’ In so arguing, the
defendants characterize the permission granted as per-
mission to use the disputed area.
The plaintiffs, in their depositions, counter that they
sought permission from their neighbors because the
proposed drains would increase the flow of water into
the creek they believed to be owned by the defendants’
predecessor in title and which marked the boundary
between their properties.18 They believed that the city
of Shelton required this document because the installa-
tion of the drains would increase the water draining
into the creek owned by the defendants’ predecessors.19
There is therefore conflicting evidence regarding
whether the permission sought was for the use of the
disputed area or for the increase in water to the creek
along the then supposed boundary line. Consequently,
we conclude that there is a genuine issue of material
fact as to whether the plaintiffs ever recognized a claim
of superior title to the disputed area that would defeat
their adverse possession claim. This factual dispute
must be resolved by the fact finder, not by the court
at summary judgment.
III
Last, the plaintiffs claim that the court improperly
concluded that the defendants’ entry into the disputed
area defeated the exclusivity of the plaintiffs’ use. We
conclude for the following reasons that there is a genu-
ine issue of material fact regarding the exclusivity of
the plaintiffs’ use of the disputed area.
The defendants submitted evidence to the court that
they began to use and maintain the disputed area in
2018 and, thus, the plaintiffs’ use of the disputed area
was not exclusive as required to establish adverse pos-
session. Specifically, the defendants rely on the deposi-
tion of Jacek Supronowicz in making this argument. In
his deposition, Jacek Supronowicz said that he had
observed the defendants mowing the lawn and weed
whacking the disputed area.20 Although he believed this
use happened more than ten times, he could not recall
how frequent this use was.21 The defendants did not
themselves testify as to this use.
There is, under the issue of privity discussed in part
I of this opinion, a genuine issue of material fact as to
whether adverse possession was established prior to
the defendants’ entry into the disputed area in 2018.
The plaintiffs presented evidence that the Nangles, their
predecessors in title, had used the disputed area since
2007 and that the Nangles’ parents had used the dis-
puted area since they purchased the property in 1961.
In Roche v. Fairfield, 186 Conn. 490, 503, 442 A.2d 911(1982), our Supreme Court held that, even if the title
owner of a disputed area acts in a manner to try to toll
the period of adverse use, if the statutory period of
adverse use and all of the other elements of adverse
possession had previously been established by the
claimant, then the claimant nevertheless has obtained
title by adverse possession. Similarly, in Boccanfuso v.
Green, 91 Conn. App. 296, 303–304, 880 A.2d 889 (2005),
the plaintiffs had used the disputed area for more than
fifteen years before the defendants purchased their
property. This court held that ‘‘any claim of ownership
that the defendants asserted on the basis of their use
of the property was too late to affect the exclusivity of
the plaintiffs’ use during the period within which
adverse possession was established initially.’’ Id., 308.
If privity exists between the plaintiffs and their prede-
cessors in title, then it is possible that, if the fact finder
determines that all of the requisite elements of adverse
possession have been met, title by adverse possession
had already been established before the alleged shared
use of the disputed area.
There is additionally a factual question as to whether
the plaintiffs’ use of the disputed area could neverthe-
less be considered exclusive, even if the defendants
began entering the disputed area in 2018. ‘‘In general,
exclusive possession can be established by acts, which
at the time, considering the state of the land, comport
with ownership; viz., such acts as would ordinarily be
exercised by an owner in appropriating land to his own
use and the exclusion of others. . . . Thus, the claim-
ant’s possession need not be absolutely exclusive; it
need only be a type of possession which would charac-
terize an owner’s use. . . . It is sufficient if the acts of
ownership are of such a character as to openly and
publicly indicate an assumed control or use such as is
consistent with the character of the premises in ques-
tion.’’ (Citations omitted; footnote omitted; internal
quotation marks omitted.) Roche v. Fairfield, supra,186 Conn. 502–503. ‘‘In adverse-possession doctrine, the
exclusivity requirement describes the behavior of an
ordinary possessor and serves to give notice to the
owner.’’ (Internal quotation marks omitted.) Boccan-
fuso v. Conner, 89 Conn. App. 260, 289 n.23, 873 A.2d
208, cert. denied, 275 Conn. 905, 882 A.2d 668 (2005),
and cert. denied, 275 Conn. 905, 882 A.2d 668 (2005).
Whether the plaintiffs’ activities in the disputed area
are consistent with open acts of ownership is a factual
determination. To the extent the defendants’ activities
beginning in 2018 are relevant, we acknowledge that
the defendants’ repeated entry into the disputed area
to mow and weed whack brings into doubt whether the
plaintiffs’ actions were acts of ownership sufficient to
establish the exclusivity element of adverse possession.
However, ‘‘[e]ven assuming that the plaintiff faces a
difficult challenge in ultimately proving its case at trial,
that assumption cannot form the basis for granting a
motion for summary judgment. So extreme a remedy
as summary judgment should not be used as a substitute
for trial or as a device intended to impose a difficult
burden on the non-moving party to save his [or her]
day in court unless it is clear that no genuine issue of
fact remains to be tried. . . . A judge’s function when
considering a summary judgment motion is not to cull
out the weak cases from the herd of lawsuits waiting
to be tried; rather, only if the case is dead on arrival,
should the court take the drastic step of administering
the last rites by granting summary judgment.’’ (Internal
quotation marks omitted.) Mott v. Wal-Mart Stores East,
LP, 139 Conn. App. 618, 631, 57 A.3d 391 (2012).
Because a ‘‘claimant’s possession need not be abso-
lutely exclusive’’ but, rather, needs to be only the ‘‘type
of possession [that] would characterize an owner’s
use’’; (internal quotation marks omitted) Roche v. Fair-
field, supra, 186 Conn. 502; it is the role of the fact
finder to determine whether the claimant’s use, even if
not absolutely exclusive, is nevertheless the type of
ownership sufficient to find the exclusivity required
to establish adverse possession. There is, therefore,
a genuine issue as to whether the plaintiffs’ use was
nevertheless sufficiently exclusive, despite the defen-
dants also entering the area after 2018.
In summary, we conclude that the court improperly
granted the defendants’ motion for summary judgment.
As outlined previously in this opinion, contrary to each
of the defendants’ three arguments, there remain genu-
ine issues of material fact.
The judgment is reversed and the case is remanded
for further proceedings consistent with this opinion.
In this opinion the other judges concurred.
1
The complaint also named Village Mortgage Company as an additional
defendant, but it failed to appear. Accordingly, we refer to Michael Eaton
and Stephanie Hawker as the defendants.
2
Jacek Supronowicz subsequently quitclaimed his interest in the property
with right of survivorship to himself and his wife, Iwona Supronowicz.
3
The disputed area, according to the complaint, ‘‘[c]ommenc[es] at a point
where a creek crosses from land designated as Lot 4 to [l]and designated
as Lot 3 on a certain map entitled, ‘final Plan of Woodland Park, Section
1,’ dated April 1960, [r]evised January 1961, made by Richard J. Nowakowski
and on file in the Shelton Town Clerk’s office, then;
‘‘EASTERLY: along the northerly side of the creek a distance of 245 ±
feet then;
‘‘NORTHERLY by Fair Oaks Drive 50 . . . ± feet, then 90 degrees;
‘‘WESTERLY along the northerly boundary of land designated as Lot No.
3 on a map entitled ‘final Plan of Woodland Park, Section 1,’ dated April
1960, [r]evised January 1961, made by Richard J. Nowakowski and on file
in the Shelton Town Clerk’s office, a distance of 240 ± feet to the point of
beginning.’’
4
The permission read: ‘‘I hereby give permission to the present owners
of 16 Fair Oaks Drive, Shelton, Connecticut, to install one (1) curtain drain
and one (1) footing drain, both of which will drain into the water course
channel that runs parallel to the boundary of our properties. The present
owners of 16 Fair Oaks Drive shall be responsible for all costs related to
the installation and maintenance of both drains. This agreement is limited
to the installation of these two drains and nothing additional.’’
5
The plaintiffs’ predecessors in title maintained the disputed area by
mowing grass, plowing snow, raking leaves, and fertilizing the lawn, as well
as planting trees in the disputed area.
6
The defendants filed a request to revise on December 18, 2019. The
defendants requested that the plaintiffs, in relevant part, revise their com-
plaint to clarify what actions were taken by the plaintiffs and their predeces-
sors in title to evidence the ‘‘ ‘open, exclusive, hostile, adverse, and actual
possession’ ’’ of the disputed area. The court, Tyma, J., overruled the plain-
tiffs’ objection to the relevant requested revision, and the plaintiffs filed
their revised complaint on October 27, 2020. The revised complaint is the
operative complaint in this action.
7
‘‘[Section] 52-575 (a) establishes a fifteen year statute of repose on an action
to oust an adverse possessor.’’ (Footnote omitted.) O’Connor v. Larocque,
302 Conn. 562, 578–79, 31 A.3d 1 (2011). Specifically, General Statutes § 52-
575 (a) provides in relevant part that ‘‘[n]o person shall make entry into
any lands or tenements but within fifteen years next after his right or title
to the same first descends or accrues or within fifteen years next after
such person or persons have been ousted from possession of such land or
tenements; and every person, not entering as aforesaid, and his heirs, shall
be utterly disabled to make such entry afterwards; and no such entry shall
be sufficient, unless within such fifteen-year period, any person or persons
claiming ownership of such lands and tenements and the right of entry
and possession thereof against any person or persons who are in actual
possession of such lands or tenements, gives notice in writing to the person
or persons in possession of the land or tenements of the intention of the
person giving the notice to dispute the right of possession of the person or
persons to whom such notice is given and to prevent the other party or
parties from acquiring such right, and the notice being served and recorded
as provided in sections 47-39 and 47-40 shall be deemed an interruption of
the use and possession and shall prevent the acquiring of a right thereto by
the continuance of the use and possession for any length of time thereafter,
provided an action is commenced thereupon within one year next after the
recording of such notice. . . .’’
8
In so holding, the court relied on Allen v. Johnson, 79 Conn. App. 740,
746–47, 831 A.2d 282, cert. denied, 266 Conn. 929, 837 A.2d 802 (2003). The
defendants concede on appeal that the court’s reliance on Allen and ‘‘reliance
on [the plaintiffs’] offers to purchase an easement to the disputed area and/
or swap land as evidence of the plaintiffs’ acknowledgment of the defendants’
superior rights was misplaced,’’ but they argue that the court’s legal conclu-
sion was nevertheless correct. The defendants instead argue before this
court that the plaintiffs recognized the defendants’ superior title by obtaining
the permission of the defendants’ predecessor in title to install drains in the
disputed area and, therefore, that the court’s conclusion may nevertheless
be affirmed.
9
In its original memorandum of decision, the court stated that, ‘‘[f]or the
foregoing reasons, the defendants’ motion for summary judgment is denied.’’
The defendants thereafter filed a motion to reconsider, arguing that there
appeared to be a scrivener’s error as to the court’s ultimate conclusion
because the substance and weight of the court’s findings and legal conclu-
sions did not align with the court’s conclusion. The plaintiffs objected to
the motion to reconsider, arguing that ‘‘the court’s order denying the motion
for summary judgment is consistent with both the factual record as well as
the law.’’ The court agreed with the defendants that a scrivener’s error
had occurred and granted the defendants’ motion to reconsider. The court
corrected the last sentence of the decision to read, ‘‘For the foregoing
reasons, the defendants’ motion for summary judgment is granted.’’
10
Specifically, the court stated that, ‘‘[w]hile the evidence suggests that
the plaintiffs’ predecessor in title did use the dispute[d] area, the evidence
conclusively shows that the plaintiffs were not conveyed the disputed area,
either orally or by deed, and therefore cannot claim successive adverse
possession from their predecessors in title.’’
11
North Carolina is firmly in the minority in expressly limiting tacking to
cases of express conveyance. See N.C. Gen. Stat. Ann. § 1-40 (2021); Ramsey
v. Ramsey, 229 N.C. 270, 273, 49 S.E.2d 476 (1948) (‘‘[t]he privity necessary
to warrant the tacking of the possession of successive claimants by adverse
possession must be created by grant, devise, purchase, or descent’’).
A minority of other jurisdictions have similarly held that ‘‘a transfer sub
silentio is insufficient to permit the tacking of the possessions of the unde-
scribed area.’’ Annot., 17 A.L.R.2d, supra, § 8, p. 1160; see also id., § 10,
pp. 1171–74 (collecting cases from Michigan, New York, Tennessee, and
Wisconsin, but noting they are now of ‘‘doubtful authority’’ in light of more
recent case law in those states).
The American Law Reports concludes that, ‘‘[e]xcept for those few, some-
times uncertain, authorities . . . the doctrine which appears generally to
prevail is that a transfer in fact of adverse possession, or the adverse posses-
sion and claim of an area not within the description of the deed or contract,
will be effective for tacking purposes though the same appears to have
occurred by implication only, by force of the circumstances and acts of the
parties, and is not shown to have been evidenced by any declaration of
transfer or other direct words.’’ Id., § 8, p. 1160.
12
‘‘In most jurisdictions, and under the circumstances of most cases, the
successive adverse possessions of vendor and purchaser of an area not
within the description of the deed or contract but lying along and extending
up to a fence apparently marking the boundary line between the land sold
and neighboring land may be tacked upon the theory of an implied delivery
of possession of such area.’’ Annot., 17 A.L.R.2d, supra, § 10, p. 1168; see
Ringstad v. Grannis, 12 Alaska 190, 197, 171 F.2d 170 (1948); St. Louis
Southwestern Railway Co. v. Mulkey, 100 Ark. 71, 75, 139 S.W. 643 (1911);
Cooper v. Tarpley, 112 Ind. App. 1, 10, 41 N.E.2d 640 (1942); Howind v.
Scheben, 233 Ky. 139, 141, 25 S.W.2d 57 (1930); Wishart v. McKnight, 178
Mass. 356, 361–62, 59 N.E. 1028 (1901); Davock v. Nealon, 58 N.J.L. 21, 25,
32 A. 675 (1895).
13
‘‘Ordinarily, the fact that the vendor and purchaser were successively
in adverse possession of buildings or other structures encroaching on land
adjoining that described in the deed or contract is convincing evidence of
a transfer to the purchaser of possession of the area so appropriated.’’
Annot., supra, 17 A.L.R.2d § 12, p. 1176; see also Belotti v. Bickhardt, 228
N.Y. 296, 308–309, 127 N.E. 239 (1920); Peoples v. Hagaman, 31 Tenn. App.
398, 407, 215 S.W.2d 827 (1948).
14
The court in Freed cited to several cases, including the New Hampshire
case of Alukonis v. Kashulines, 96 N.H. 107, 109, 70 A.2d 202 (1950), which
held that ‘‘there was evidence [that] the plaintiff was shown the bounds,
which included the [disputed area], by her predecessor in title and that this
tract had been [enclosed] and cultivated for many years by the plaintiff and
her predecessors. This appears sufficient to support the plaintiff’s right to
tack.’’ See Freed v. Cloverlea Citizens Assn., Inc., supra, 246 Md. 302.
15
At a deposition, the plaintiffs’ attorney questioned Melissa Nangle, one
of the plaintiffs’ predecessors in title, as follows:
‘‘Q. You testified there’s a brook line between [the defendants’ predeces-
sors in title’s] house and 16 Fair Oaks Drive?
‘‘A. Yes.
‘‘Q. Okay. And can you tell me when—in the 1960s, do you know what—
where the boundary—or did you have any conception of where the boundary
lay between the [defendants’ predecessors in title’s] house and 16 Fair
Oaks Drive?
‘‘A. It was the brook; that one side was theirs and the other side was ours.
‘‘Q. So, as growing up, that was your understanding?
‘‘A. Absolutely.
‘‘Q. Where did you get that understanding?
‘‘A. I just—it was just a natural belief. It just looked—that’s how it was.
I was never told otherwise.
‘‘Q. Okay. And since 1961 to 2011, did you or your family use the area
between the brook and your house and driveway at 16 Fair Oaks Drive?
‘‘A. We always maintained all that property. My father may have used it
for things that I’m not aware of or don’t remember, but we always maintained
that property from the brook on.
***
‘‘Q. When [John Nangle] mowed the lawn—as far as the edge of the brook?
‘‘A. Oh, yes, the whole property. That was considered our property, to
my knowledge.’’
16
Recognition of superior title implicates the continuous element of
adverse possession. See Allen v. Johnson, 79 Conn. App. 740, 746, 831 A.2d
282, cert. denied, 266 Conn. 929, 837 A.2d 802 (2003). ‘‘An adverse possessor
may interrupt his or her continuous possession by acting in a way that
acknowledges the superiority of the real owner’s title. . . . [T]he possession
of one who recognizes or admits title in another, either by declaration or
conduct, is not adverse to the title of such other. . . . Occupation must
not only be hostile in its inception, but it must continue hostile, and at all
times during the required period of fifteen years challenge the right of the
true owner, in order to found title by adverse use upon it. . . . Such an
acknowledgment of the owner’s title terminates the running of the statutory
period, and any subsequent adverse use starts the clock anew.’’ (Citation
omitted; internal quotation marks omitted.) Id.17
See footnote 8 of this opinion.
18
The defendants’ attorney questioned Jacek Supronowicz as follows:
‘‘Q. Okay. Why do you think these [permissions] were required?
‘‘A. Because—I told you before [in] the beginning, we know that the brook
is on their side. That’s why we asking them if we can do it and dump the
water in the brook.
‘‘Q. Because presumably dumping water in the brook would have some
effect on the way the water flows in the brook?
‘‘A. Everything is possible.
‘‘Q. And all of the individuals who said that they were all co-owners of
12 Fair Oaks Drive all gave you consent to install the drains; that’s correct?
‘‘A. Yes.
‘‘Q. Which means they didn’t object to having additional water go into
the brook; is that right?
‘‘A. I think so.’’
19
The defendants’ attorney cross-examined Iwona Supronowicz as fol-
lows:
‘‘Q. Okay. Do you know who prepared the documents?
‘‘A. They were presented to me, and they’ve been already signed. And
they give it to me so I can give them to the city of Shelton because I need
to have that because Mr. John Cook [an individual with the city’s Inland/
Wetland Commission] said that I need to have a statement from 12 Fair
Oaks Drive about water coming in from our drains to the watercourse, to
the brook.
***
‘‘Q. . . . And you just mentioned that the reason that [Cook] told you
you needed these letters was because of water that was going to drain into
the watercourse.
‘‘A. Yes.
‘‘Q. Is that correct?
‘‘A. Yes. Because in the drain you have water, and you have to dump it
someplace. So, we decided to dump it to the brook.’’
20
The defendants’ attorney questioned Jacek Supronowicz as follows:
‘‘Q. In your interrogatory responses you mentioned that the defendants
had been observed by you or your wife in the disputed area mowing the
lawn and weed whacking.
‘‘A. Yes.’’
21
The defendants’ attorney questioned Jacek Supronowicz as follows:
‘‘Q. Okay. Could you give me a range of how many times you think
you might have observed [the defendants mowing and weed whacking the
disputed area]?
‘‘A. I don’t remember.
‘‘Q. Okay. Would it be more than ten times?
‘‘A. Yes.
***
‘‘Q. All right. Would you say that the number of times you observed either
of the defendants in the disputed area was more than fifty times?
‘‘A. Maybe.’’