Briarwood of Silvermine, LLC v. Yew Street Partners, LLC

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BRIARWOOD OF SILVERMINE, LLC, ET AL. v.
YEW STREET PARTNERS, LLC, ET AL.
(AC 43487)
Prescott, Cradle and DiPentima, Js.

Syllabus

The plaintiffs, B Co., the owner of certain real property in Norwalk, and D,
the former owner of that property and the sole member of B Co., brought
claims, inter alia, of adverse possession with respect to a contested area
abutting property owned by the defendant, Y Co., and formerly owned
by the defendant A. Following a bench trial, the trial court granted the
defendants’ oral motion to dismiss pursuant to the applicable rule of
practice (§ 15-8). In concluding that the plaintiffs failed to establish a
prima facie case of adverse possession, the court relied on its finding
that D thought, erroneously, that the contested area belonged to her.
Thereafter, the court, relying on its erroneous reasoning underlying its
dismissal of the complaint, also rendered judgment for the defendants
on their counterclaims seeking to quiet title and for trespass. On appeal,
the plaintiffs claimed that the trial court erred by dismissing their com-
plaint pursuant to Practice Book § 15-8, and by rendering judgment in
favor of Y Co. on its counterclaim to quiet title, and in favor of A on
her counterclaim for trespass. Held that the trial court erred in dismissing
the plaintiffs’ adverse possession claim because, when determining
whether the plaintiffs had established a prima facie case, the court
misapplied the law of adverse possession: the court operated under the
mistaken understanding that a claimant’s possession cannot be hostile
if he or she believes that the contested property belongs to him or
her, which represented a misunderstanding of the essential element
of hostility; moreover, the court misunderstood and misapplied two
additional elements of the law of adverse possession, namely, that a
claimant’s possession of contested property must last for an uninter-
rupted period of fifteen years and that a claimant’s possession must be
open and visible, the court having erroneously stated that the require-
ment that a claimant possess the contested property notoriously or
hostilely is intended to allow the record owner to toll the fifteen year
period of possession, the requisite fifteen year period begins when a
claimant possesses the property at issue in such a way that puts the
record owner on constructive notice, not when the record owner has
actual knowledge of the possession, and, thus, the court’s rejection of
the plaintiff’s claim of adverse possession was based on a misapplication
of the law as to the elements of adverse possession relating to how long,
and in what manner, the plaintiffs possessed the contested property;
accordingly, the case was remanded for a new trial on the complaint
and on the counterclaims.
Argued September 13—officially released December 14, 2021

Procedural History

Action, inter alia, seeking to quiet title to certain real
property, and for other relief, brought to the Superior
Court in the judicial district of Stamford-Norwalk,
where the defendants filed counterclaims; thereafter,
the matter was tried to the court, Kavanewsky, J.; sub-
sequently, the court granted the defendants’ motion to
dismiss the complaint and rendered judgment for the
defendants on the complaint and in part for the defen-
dants on their counterclaims, from which the plaintiffs
appealed to this court. Reversed in part; new trial.
Igor G. Kuperman, for the appellants (plaintiffs).
Richard J. Meehan, with whom, on the brief, were
Richard T. Meehan, Jr., and Caitlin R. Pfeiffer, for the
appellees (defendants).
Opinion

DiPENTIMA, J. In this adverse possession action, the
plaintiffs, Briarwood of Silvermine, LLC (Briarwood),
and Ganga Duleep, appeal from the judgment in favor
of the defendants, Yew Street Partners, LLC (Yew
Street), and Juliann Altieri, rendered by the trial court
after it granted the defendants’ motion to dismiss, which
was made orally pursuant to Practice Book § 15-8,1 after
the plaintiffs had rested their case-in-chief, and on the
counts of the defendants’ counterclaims seeking to
quiet title and for trespass. On appeal, the plaintiffs
claim that the court erred by (1) dismissing their claims
pursuant to § 15-8, (2) rendering judgment in favor of
Yew Street on its counterclaim seeking to quiet title,
and (3) rendering judgment in favor of Altieri on the
count of her counterclaim for trespass. Because we
conclude that the trial court incorrectly applied the law
of adverse possession when determining whether the
plaintiffs established a prima facie case of adverse pos-
session, we reverse the judgment of the court.2
The properties at issue in this case are located at
3 Briarwood Road (Briarwood property)3 and 14 Yew
Street (Yew Street property)4 in Norwalk. The proper-
ties share a common property line. As described by
the trial court in its oral decision on the defendants’
counterclaims, ‘‘the northern border of [the Briarwood
property] is the southern border of [the Yew Street
property]. That border is approximately 290 feet in
length. The property over which the plaintiff[s] [have]
asserted a claim of adverse possession is immediately
north of the . . . southern border [of the Yew Street
property]. More specifically, the [contested area] begins
in the southeastern most corner of the [Yew Street]
property, extending inward to a point approximately
forty feet north of the [Yew Street property’s] southern
boundary, and then extending westerly for approxi-
mately 160 feet.’’ In their complaint, the plaintiffs, as
to both Altieri and Yew Street and with regard to the
contested area, asserted claims of adverse possession,
adverse prescription, trespass, obstruction of right to
way, nuisance, absolute nuisance, and destruction of
personal property, and sought to permanently enjoin
Yew Street ‘‘from performing any excavation work
. . . .’’ In response, Altieri filed a counterclaim alleging
counts of trespass and intentional infliction of emo-
tional distress, and Yew Street filed a counterclaim
seeking to quiet title to the Yew Street property.
The plaintiffs presented evidence in support of their
case-in-chief, that, if believed, established the following
facts. See Moutinho v. 500 North Avenue, LLC, 191
Conn. App. 608, 620, 216 A.3d 667 (under Practice Book
§ 15-8, standard is whether plaintiff presented sufficient
evidence that, if believed, would establish prima facie
case), cert. denied, 333 Conn. 928, 218 A.3d 68 (2019). In
or around 1973, Duleep and her now deceased husband
purchased and began to reside at the Briarwood prop-
erty. Duleep has continuously resided there since that
time. At the time Duleep began to reside at the Briar-
wood property, a stone wall already had been erected.
This wall ran along the right side of the Briarwood
property, adjacent to Briarwood Road, and it bordered
the contested area on the east side. Duleep continuously
maintained and repaired the wall, installed a white
stockade fence on top of it, and installed a gate. In
1973, Duleep constructed a barbecue area in the con-
tested area. The barbecue area at that time consisted of
a cement floor, chairs, and a table. Duleep continuously
maintained the barbecue area.
In 1974, Duleep installed a silver wire fence on the
property, which began where the stone wall ended and
also bordered the contested area. Duleep continuously
maintained and repaired the fence. In 1975 or 1976,
Duleep installed a shed on the property, which she
routinely used for gardening and welding work.
Although the shed was not located in the contested
area, there was a walkway affixed to it that did extend
onto the contested area. In 1978, Duleep planted five
fig trees—three of them in the contested area—that
she cared for continuously. Duleep also had a metal
structure erected to protect the fig trees, one-half of
which extended into the contested area.
In approximately 1989, Duleep established a covered,
open area in the contested area, which she continuously
used to store metal for welding projects. In approxi-
mately that same year, Duleep replaced the silver wire
fence with a taller, green wire fence. The purpose of
both fences was to keep Duleep’s children within the
boundaries of the Briarwood property, and to keep oth-
ers out. Duleep continued to maintain and to repair the
fence. At some point in the 1990s, Duleep planted a
vegetable garden in the contested area, which she con-
sistently and continuously maintained.
In 1993, Duleep erected an arbor in the contested
area and placed six pots in the contested area near the
barbecue. She consistently and continuously used and
maintained these pots. In 1993 or 1994, Duleep estab-
lished a memorial garden in memory of her late husband
in the contested area. The garden contained various
plants, including Japanese maple trees, as well as a
pergola and an ornamental bridge. The memorial garden
was continuously cared for by Duleep, and was consis-
tently used by Duleep and her family. In 1998, Duleep
upgraded the barbecue station by installing a deck, an
awning, stainless steel tables, a three bay sink, and
three barbecue grills. In the 1990s, Duleep planted a
‘‘moon garden’’ on the property that partially extended
into the contested area. Duleep consistently and regu-
larly cared for the plants in this garden.
In approximately 2000, Duleep converted the cov-
ered, open area that she had used for storing metal into
a second shed, which she continuously and consistently
used for potting plants and composting. Also, in approx-
imately that same year, Duleep planted six cherry trees
at the property, three of which were located in the
contested area. Duleep regularly and consistently cared
for the cherry trees, fertilizing, weeding, and pruning
them, and harvesting their fruit. In 2008, Duleep
installed motion lights in the contested area, as well as
a memorial garden for a family dog that consisted of
annual and perennial plants. Duleep consistently and
continuously maintained the garden. In 2015 or 2016,
Duleep installed an additional shed and three roofed
benches in the contested area.
On August 2, 2018, Altieri removed from the contested
area the potting shed, one half of the walkway, the two
arbors, and one half of the metal structure above the
fig trees, as well as the white stockade fence, gate and
sink. Altieri also installed an orange mesh barrier on
the property line between the Briarwood property and
Yew Street property that prevented Duleep from access-
ingone half of her fig trees, the remaining one half of
the metal structure above the fig trees, three of her
cherry trees, part of the moon garden, the bridge, and
the memorial garden.
At the conclusion of the plaintiffs’ case-in-chief, and
after introducing one of their own witnesses out of
order, the defendants moved to dismiss the case pursu-
ant to Practice Book § 15-8. In an oral ruling, the court
granted the defendants’ motion and found that the plain-
tiffs had failed to make out a prima facie case of adverse
possession.5 Thereafter, the trial continued and the
court heard evidence on the defendants’ counterclaims.
After the defendants had rested their case, the court,
relying on the findings that it made when it dismissed
the plaintiffs’ complaint, granted Yew Street’s counter-
claim seeking to quiet title and reserved decision as to
Altieri’s counterclaim that alleged counts of trespass
and intentional infliction of emotional distress. In its
memorandum of decision, the court addressed Altieri’s
counterclaim, rendering judgment in favor of Altieri on
her count of trespass and in favor of the plaintiffs on
her count of intentional infliction of emotional distress.
In rendering judgment on the count of Altieri’s counter-
claim alleging trespass, the court relied on the determi-
nation it had made in its dismissal of the plaintiffs’
complaint that ‘‘[the plaintiffs] had no lawful ownership
or possessory interest in the [contested area of the Yew
Street property].’’ This appeal followed.
On appeal, the plaintiffs claim that the court erred
in dismissing their claim of adverse possession because
the evidence that they had produced at trial established
a prima facie case of adverse possession.6 ‘‘The standard
for determining whether the plaintiff has made out a
prima facie case, under Practice Book § 15-8, is whether
the plaintiff put forth sufficient evidence that, if
believed, would establish a prima facie case, not
whether the trier of fact believes it. . . . For the court
to grant the motion [for a judgment of dismissal pursu-
ant to § 15-8], it must be of the opinion that the plaintiff
has failed to make out a prima facie case. In testing
the sufficiency of the evidence, the court compares the
evidence with the allegations of the complaint. . . . In
order to establish a prima facie case, the proponent
must submit evidence, which, if credited, is sufficient
to establish the fact or facts which it is adduced to
prove. . . . [T]he evidence offered by the plaintiff is
to be taken as true and interpreted in the light most
favorable to [the plaintiff], and every reasonable infer-
ence is to be drawn in [the plaintiff’s] favor.’’ (Internal
quotation marks omitted.) Moutinho v. 500 North Ave-
nue, LLC, supra, 191 Conn. App. 620.
The plaintiffs claim that the court erred in dismissing
their claim of adverse possession, pursuant to Practice
Book § 15-8, because the court incorrectly recited and
applied the law of adverse possession, and because
they did, in fact, make out a prima facie case of adverse
possession. In response, the defendants argue that the
court properly found that ‘‘a prima facie case for
adverse possession had not been proven, and that [t]he
plaintiffs’ evidence simply would not permit the trier
of fact to reasonably conclude that the elements of
adverse . . . possession have been established . . . .’’
(Internal quotation marks omitted.)
‘‘[T]o establish title by adverse possession, the claim-
ant must oust an owner of possession and keep such
owner out without interruption for fifteen years by an
open, visible and exclusive possession under a claim
of right with the intent to use the property as his [or her]
own and without the consent of the owner.’’ (Internal
quotation marks omitted.) Schlichting v. Cotter, 109
Conn. App. 361, 364–65, 952 A.2d 73, cert. denied, 289
Conn. 944, 959 A.2d 1009 (2008). ‘‘The legal significance
of the open and visible element is not . . . an inquiry
into whether a record owner subjectively possessed an
understanding that a claimant was attempting to claim
the owner’s property as his [or her] own. Rather, the
open and visible element requires a fact finder to exam-
ine the extent and visibility of the claimant’s use of the
record owner’s property so as to determine whether a
reasonable owner would believe that the claimant was
using that property as his or her own.’’ Id., 368.
‘‘Our Supreme Court has explained that [i]n general,
exclusive possession can be established by acts, which
at the time, considering the state of the land, comport
with ownership . . . such acts as would ordinarily be
exercised by an owner in appropriating land to his [or
her] own use and the exclusion of others. . . . Thus,
the claimant’s possession need not be absolutely exclu-
sive; it need only be a type of possession which would
characterize 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
question.’’ (Internal quotation marks omitted.) Eberhart
v. Meadow Haven, Inc., 111 Conn. App. 636, 641–42,
960 A.2d 1083 (2008). ‘‘[A] claimant’s mistaken belief
that [s]he owned the property at issue is immaterial in
an action for title by adverse possession, as long as
the other elements of adverse possession have been
established.’’ (Internal quotation marks omitted.) Id.,
646. In other words, a ‘‘mistaken belief as to boundary
does not bar [a] claim of right or negate [the] essential
element of hostility’’ in a claim of adverse possession.
Id.
In the present case, the court, in applying the law of
adverse possession to the evidence presented by the
plaintiffs, stated: ‘‘The plaintiffs’ evidence simply would
not permit the trier of fact to reasonably conclude that
the elements of adverse possession have been estab-
lished by clear and convincing evidence. . . . [T]here
has been absolutely no showing that, prior to 2018,
[Duleep] was asserting a claim of ownership to the tract
in question, and that she was ousting the defendant[s].
The record clearly demonstrates the contrary. [Duleep]
thought, erroneously, that the subject tract belonged to
her. She did not engage in any activities with a hostile
or notorious intention to oust the owner. . . . More-
over, there has been no evidence that the defendant[s]
[were] even aware of these activities until very
recently. That is, prior to July, 2018. Likewise, there
[has] been no evidence from which a trier could find
that any reasonably prudent owner would have been
aware of these activities. The requirement that the pos-
session be done notoriously or hostilely is important.
That requirement is intended to allow the record owner
to effectively toll the required fifteen year period of
continuous adverse possession, and to protect her
interest. And, to this court’s way of thinking, and under
this record, a trier could not reasonably conclude that
. . . by clear and convincing evidence . . . the fifteen
year period even commenced until the defendant[s]
made [a] specific demand upon [Duleep] to remove the
encroachments and [Duleep] refused to do so.’’
(Emphasis added.)
The court’s conclusion that the plaintiffs failed to
establish a prima facie case of adverse possession is
premised on two distinct, fundamental misunderstand-
ings as to the elements of a claim of adverse possession.
First, the court operated under the mistaken under-
standing that a claimant’s possession cannot be hostile
if he or she believes that the contested property belongs
to him or her. Second, the court erroneously stated that
the requirement that a claimant possess the contested
property ‘‘notoriously or hostilely’’ is intended to allow
the record owner to toll the fifteen year period of pos-
session. We address each of these errors in turn.
First, in concluding that the plaintiffs failed to estab-
lish a prima facie case of adverse possession, the court
found that Duleep ‘‘thought, erroneously, that the sub-
ject tract belonged to her. She did not engage in any
activities with a hostile or notorious intention to oust
the owner. . . . Moreover, there has been no evidence
that the defendant[s] [were] even aware of these activi-
ties until very recently.’’ The court’s reliance on these
findings represents a fundamental misunderstanding of
an essential element of a claim of adverse possession,
namely, that a claimant’s possession of contested prop-
erty be hostile. See Eberhart v. Meadow Haven, Inc.,
supra, 111 Conn. App. 646. Under the court’s stated
understanding of this element, possession of contested
property cannot be hostile if the claimant has operated
under the belief that she owns the contested property.
This understanding is clearly at odds with the law, as
set forth previously in this opinion, that a ‘‘mistaken
belief as to boundary does not bar [a] claim of right or
negate [the] essential element of hostility’’ in a claim
of adverse possession. Id. Accordingly, the court’s judg-
ment dismissing the plaintiffs’ claim of adverse posses-
sion is based on a misapplication of the law, specifically
with regard to the element of hostility.
Second, in concluding that the plaintiffs failed to
establish a prima facie case of adverse possession, the
court found that ‘‘there has been absolutely no showing
that, prior to 2018, [Duleep] was asserting a claim of
ownership to the tract in question, and that she was
ousting the defendant[s].’’ The court further held that
‘‘[t]he requirement that the possession be done notori-
ously or hostilely . . . is intended to allow the record
owner to effectively toll the required fifteen year period
of continuous adverse possession . . . .’’ These state-
ments represent a fundamental misunderstanding, and
misapplication, of two additional elements of the law
of adverse possession, namely, that a claimant’s posses-
sion of contested property must last for an uninter-
rupted period of fifteen years, and that a claimant’s
possession must be open and visible. See Schlichting
v. Cotter, supra, 109 Conn. App. 364–65.
It is well established that, for a claimant to establish
title by adverse possession, the claimant must possess
the contested property ‘‘without interruption for fifteen
years . . . .’’ (Internal quotation marks omitted.) Id.,
364. In the present case, the trial court was mistaken
in its understanding of when the fifteen year period
began. According to the court, the period does not begin
until the record owner has actual notice of the claim-
ant’s possession of the contested property, because
‘‘[t]he requirement that the possession be done notori-
ously or hostilely . . . is intended to allow the record
owner to effectively toll the required fifteen year period
of continuous adverse possession . . . .’’ This con-
struction is at odds with the law relative to the requisite
fifteen year period of possession in a claim of adverse
possession.
As we have previously established, ‘‘[t]he legal signifi-
cance of the open and visible element is not . . . an
inquiry into whether a record owner subjectively pos-
sessed an understanding that a claimant was attempting
to claim the owner’s property as his [or her] own.
Rather, the open and visible element requires a fact
finder to examine the extent and visibility of the claim-
ant’s use of the record owner’s property so as to deter-
mine whether a reasonable owner would believe that
the claimant was using that property as his or her
own.’’ (Emphasis added.) Schlichting v. Cotter, supra,
109 Conn. App. 368. Accordingly, the fifteen year period
begins when a claimant begins to possess the property
at issue in such a way that puts the record owner on
constructive notice, not when the record owner has
actual knowledge of the possession. See id. Therefore,
the court’s rejection of the plaintiffs’ claim of adverse
possession was based on a misapplication of the law
as to the elements of adverse possession relating to
how long, and in what manner, the plaintiffs possessed
the contested property.
The judgment is reversed with respect to the com-
plaint and with respect to the counts of the defendants’
counterclaims seeking to quiet title and for trespass,
and the case is remanded for a new trial on the com-
plaint and the quiet title and trespass counts of the
counterclaims; the judgment is affirmed with respect
to the count of the counterclaim alleging intentional
infliction of emotional distress.
In this opinion the other judges concurred.
1
Practice Book § 15-8 provides in relevant part: ‘‘If, on the trial of any
issue of fact in a civil matter tried to the court, the plaintiff has produced
evidence and rested, a defendant may move for judgment of dismissal, and
the judicial authority may grant such motion if the plaintiff has failed to
make out a prima facie case. . . .’’
2
Because we reverse the trial court’s judgment dismissing the plaintiffs’
complaint, we need not address in detail the two claims challenging the
court’s judgment on the defendants’ counterclaims. The court’s decision on
the counterclaims relied on its reasoning and conclusions underlying the
dismissal of the complaint. Accordingly, a new trial is required on the
challenged counts of the counterclaims as well.
3
Duleep initially held title to the Briarwood property but transferred title
to Briarwood in 1994. Duleep is the sole member of Briarwood.
4
In 2009, Altieri acquired title to the Yew Street property. In 2019, Altieri
transferred title to the Yew Street property to Yew Street. At all relevant
times, the Yew Street property was an ‘‘unimproved vacant parcel.’’
5
Although the defendants did call a witness before the plaintiffs concluded
their case-in-chief, the court explicitly stated that it would not consider the
testimony of that witness, or any full exhibits introduced by the defendants
through that witness, in addressing the defendants’ motion to dismiss.
6
Although the plaintiffs argue that the court applied an incorrect standard
in resolving the defendants’ motion to dismiss pursuant to Practice Book
§ 15-8, we do not address that argument in light of our determination that
the court’s judgment, regardless of the standard applied, was based on a
misapplication of the law of adverse possession.