Mulvey v. Palo

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Mulvey v. Palo

MONA S. MULVEY, TRUSTEE v.
STEFAN PALO ET AL.
(AC 46383)
Elgo, Seeley and Westbrook, Js.

Syllabus

The plaintiff sought a declaratory judgment of adverse possession with
respect to a portion of certain real property owned by the defendants.
The defendants filed a counterclaim in which they sought to quiet title
to the disputed portion of their property. At trial, the plaintiff submitted
into evidence a general location survey prepared by R, a licensed land
surveyor, which identified a wooded area and a lawn area on the disputed
property. Other evidence at trial established that there was a third area
on the disputed property, generally referred to as the muddy area, which
straddled the wooded area and the lawn area. The trial court rendered
judgment for the defendants. On the plaintiff’s appeal to this court, held:
1. The plaintiff could not prevail on her claim that the trial court erroneously
concluded that she failed to establish her claim of adverse possession
with respect to all areas of the disputed property: although the court
found that the plaintiff’s late husband, S, had previously demonstrated
possession of some areas on the disputed property, the court expressly
found that no activities of any consequence occurred in the muddy area,
and that finding was supported by the evidence in the record; moreover,
there was no evidence that any member of the plaintiff’s family posted
signs or installed fencing on the disputed property generally or the
muddy area specifically, the plaintiff’s son, J, testified that S had not
maintained the existing stone walls that abutted and intersected the
disputed property, and the general survey prepared by R identified only
two of the three areas of the disputed property; furthermore, although
the court found that S created an access path on the disputed property,
it did not find that that path traversed the muddy area, J did not identify
the location of that path with any precision in his testimony, and he
admitted that the path no longer existed, that he never took any measure-
ments to determine its location, and that he could only provide an
estimate of where it previously was located.
2. The plaintiff could not prevail on her claim that the trial court erroneously
concluded that she failed to establish the boundaries of the areas of
the disputed property with reasonable certainty: the survey prepared
by R and admitted into evidence was of general character, was predi-
cated on information furnished by J rather than R’s own observations
of the disputed property, did not identify all three areas of the disputed
property, and did not delineate the boundaries of either of the two areas
that were labeled as having been maintained by the plaintiff’s family;
moreover, R testified that he did not measure the wooded or lawn areas
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Mulvey v. Palo
and did not know the square footage of either area, that he did not
stake any of the areas in the disputed property, and that he would not
advise a property owner to rely on the general survey to transfer title
to the disputed property without further work; furthermore, J was unable
to provide any specifics regarding the precise boundaries of the wooded
area, the lawn area, or the muddy area.
Argued March 11—officially released July 2, 2024

Procedural History

Action seeking a declaratory judgment of adverse
possession over certain real property owned by the
named defendant et al., and for other relief, brought to
the Superior Court in the judicial district of Stamford-
Norwalk, where Bank of America, N.A., was cited in as
a defendant; thereafter, the named defendant et al. filed
a counterclaim; subsequently, the case was tried to the
court, Hon. John F. Kavanewsky, Jr., judge trial ref-
eree; judgment for the defendants on the complaint and
for the named defendant et al. on the counterclaim, from
which the plaintiff appealed to this court. Affirmed.
Joseph DaSilva, Jr., with whom, on the brief, was
Marc J. Grenier, for the appellant (plaintiff).
Jason A. Buchsbaum, with whom were David A. Ball
and, on the brief, Marc J. Herman, for the appellees
(defendants).
Opinion

ELGO, J. The plaintiff, Mona S. Mulvey, trustee of
the Mona S. Mulvey Trust (trust), appeals from the
judgment of the trial court rendered in favor of the
defendants, Stefan Palo, Ema Palo, and Bank of
America, N.A.,1 on both her adverse possession claim
1
Stefan Palo and Ema Palo were named as defendants in the plaintiff’s
original complaint. The plaintiff thereafter filed a motion to cite in Bank of
America, N.A., as a necessary party due to its interest in the property in
question as a mortgage holder, which the court granted. The plaintiff then
filed an amended complaint to include Bank of America, N.A., as a defendant.
For purposes of clarity, we refer to Stefan Palo and Ema Palo collectively
as the defendants in this opinion.
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and the defendants’ quiet title counterclaim. On appeal,
the plaintiff claims that the court improperly concluded
that she failed to establish (1) her claim of adverse
possession with respect to all areas of the property in
question and (2) the boundaries of those areas with
reasonable certainty.2 We disagree and, accordingly,
affirm the judgment of the trial court.
As the court found in its memorandum of decision,
the plaintiff has owned real property in Norwalk known
as 7 Grey Hollow Road in some manner since 1966.3
The defendants own an abutting property to the south
known as 1 Grey Hollow Road (defendants’ property).
This dispute concerns a 0.22 acre portion of the defen-
dants’ property (disputed portion) located on its north-
ern boundary with the plaintiff’s property.4
2
The plaintiff also claims that the court misapplied the fifteen year require-
ment for a claim of adverse possession. See General Statutes § 52-575;
Caminis v. Troy, 300 Conn. 297, 311, 12 A.3d 984 (2011). In light of our
resolution of the principal claim in this appeal, we need not address that
alternative contention. See Durkin Village Plainville, LLC v. Cunningham,
97 Conn. App. 640, 651, 905 A.2d 1256 (2006) (‘‘insofar as proof of all elements
is necessary, a determination that the court’s decision was proper as to any
given element is fatal to the [adverse possession] claim’’).
3
The plaintiff and her late husband, David Mulvey, Sr. (David Sr.), pur-
chased 7 Grey Hollow Road in 1966 as joint tenants with rights of survivor-
ship. When David Sr. died in 1996, the plaintiff became sole owner of that
property. In 2015, she transferred the property to herself, as trustee of the
trust, by quitclaim deed.
In this regard, we note that, ‘‘[i]f 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). Although the plaintiff brought
the present action in her capacity as trustee of the trust, there is no dispute
that she can tack on the period of time in which she allegedly possessed
the property in question in an individual capacity.
4
The plaintiff concedes that the disputed portion is not within the descrip-
tion of the 7 Grey Hollow Road property in her deed. As the court noted
in its memorandum of decision, ‘‘[t]he deed by which [the plaintiff and her
late husband, David Mulvey, Sr.] acquired title [to 7 Grey Hollow Road] in
1966 references a survey done in 1965. That survey defines the [7 Grey
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The defendants purchased their property on June
29, 2020. Approximately three months later, they were
served with the plaintiff’s complaint, which alleged one
count of adverse possession. In response, the defen-
dants filed an answer, a special defense of ‘‘waiver and/
or estoppel,’’ and a counterclaim, in which they sought
to quiet title to the disputed portion of their property
pursuant to General Statutes § 47-31. In answering that
counterclaim, the plaintiff alleged, as a special defense,
that she had ousted the defendants and their predeces-
sors in interest from the disputed portion.
A two day trial followed, at which the plaintiff submit-
ted into evidence a document titled ‘‘General Location
Survey’’ (general survey) prepared by Zachary Rapp, a
licensed land surveyor, that depicts the disputed por-
tion of the defendants’ property. On its top left corner
are ‘‘Survey Notes,’’ which state in relevant part that
‘‘[t]he sole intention of this map is to depict [the dis-
puted portion]’’ and that the disputed portion ‘‘depicted
hereon [was] physically identified in [the] field’’ by the
plaintiff’s son, David Mulvey, Jr. (David Jr.). The general
survey identifies a ‘‘wooded area’’ on the westerly side
of the disputed portion and a ‘‘lawn area’’ on its easterly
side. The general survey also identifies various stone
walls, including one that runs along the southerly side
of the disputed portion.
As the court found, ‘‘[t]he topography of the [disputed
portion] can best be characterized as partly lawn, partly
as lightly wooded and a muddy area [of] an indetermi-
nate size straddling the lawn and wooded areas.’’ That
finding is supported by photographs admitted into evi-
dence at trial and various witnesses who offered testi-
mony as to ‘‘the lawn area,’’ ‘‘the wooded area,’’ and
‘‘the muddy area’’ of the disputed portion. David Jr.
Hollow Road] property as a matter of record, and it does not include the
disputed [portion] within that description.’’
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testified that the muddy area was located ‘‘between’’
the lawn area and the wooded area shown on the gen-
eral survey and ‘‘to . . . the east’’ of a vertical stone
wall.
In its memorandum of decision, the court found that,
during a nineteen year period from 1966 to 1985, the
plaintiff’s late husband, David Mulvey, Sr. (David Sr.),
‘‘demonstrated possession of some areas on the dis-
puted [portion] as would an owner thereof. His children
played within it. [David Sr.], with the help of [David Jr.],
mowed, raked, planted flowerbeds, created an access
path, removed fallen tree limbs and chopped wood on
much of the disputed [portion]. All of these acts were
certainly consistent with displaying a right of exclusive
possession over the property. . . . It was done in an
open and visible manner on a regular basis.’’5 (Citation
omitted; emphasis added.) Significantly, the court did
not find that the plaintiff had demonstrated possession
of all areas of the disputed portion of the defendants’
property.
The court further found that the precise boundary
lines of those areas over which David Sr. had demon-
strated exclusive possession were uncertain and inde-
terminate. As the court stated, ‘‘[i]n resolving the pres-
ent dispute, the court cannot identify the boundary lines
of property supposedly acquired by adverse possession
with any confidence.’’ The court thus concluded that
the plaintiff had not satisfied her burden of proof.
Accordingly, the court rendered judgment in favor of
the defendants on the adverse possession claim and
the quiet title counterclaim, and this appeal followed.
As a preliminary matter, we note that, ‘‘[w]hen title
is claimed by adverse possession, the burden of proof is
on the claimant. . . . The essential elements of adverse
5
The court also found that evidence of exclusive possession ‘‘was notably
lacking’’ after ‘‘1985 or 1990.’’
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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 possession is
not to be made out by inference, but by clear and posi-
tive proof. . . . In the final analysis, whether posses-
sion is adverse is a question of fact for the trier. . . .
The doctrine of adverse possession is to be taken
strictly.’’6 (Internal quotation marks omitted.) Dowling
6
Like Connecticut, a multitude of jurisdictions throughout the United
States recognize that a claim of adverse possession, and the evidence submit-
ted in support thereof, must be strictly construed against the party asserting
that claim. See, e.g., Mercer v. Wayman, 9 Ill. 2d 441, 445–46, 137 N.E.2d
815 (1956) (‘‘A party claiming title by adverse possession always claims in
derogation of the right of the real owner. He admits that the legal title is
in another. He rests his claim, not upon a title in himself, as the true owner,
but upon holding adversely to the true owner for the period prescribed by
the statute of limitations. Claiming a benefit from his own wrong, his acts
are to be construed strictly.’’ (Internal quotation marks omitted.)); Garrett
v. Huster, 684 N.W.2d 250, 253 (Iowa 2004) (doctrine of adverse possession
is construed strictly); Rozmarek v. Plamondon, 419 Mich. 287, 292, 351
N.W.2d 558 (1984) (‘‘[t]he evidence offered in support of adverse possession
must be strictly construed with every presumption being exercised in favor
of the record owner of the land’’ (internal quotation marks omitted)); Ganje
v. Schuler, 659 N.W.2d 261, 266 (Minn. App. 2003) (‘‘[t]he evidence presented
in support of adverse possession must be strictly construed’’ with every
presumption against party claiming adverse possession); Maddock v. Hig-
gins, 176 N.H. 182, 191, 307 A.3d 1104 (2023) (‘‘[w]hen evaluating the merits
of an adverse possession claim, courts must strictly construe the evidence
of adverse possession’’); Crown Credit Co., Ltd. v. Bushman, 170 Ohio App.
3d 807, 818, 869 N.E.2d 83 (2007) (‘‘adverse possession is disfavored’’ and
must be strictly construed); Harris v. Southeast Portland Lumber Co., 123
Or. 549, 557, 262 P. 243 (1927) (‘‘[e]vidence of adverse possession is always
to be construed strictly’’ (internal quotation marks omitted)); King v.
Hawkins, 282 S.C. 508, 511, 319 S.E.2d 361 (App. 1984) (‘‘[t]he doctrine of
adverse possession must be strictly construed in favor of the owner of the
title to land’’); Gangle v. Spiry, 916 N.W.2d 119, 125 (S.D. 2018) (evidence
is strictly construed against party claiming adverse possession); Foust v.
Metcalf, 338 S.W.3d 457, 466 (Tenn. App. 2010) (‘‘[e]vidence of adverse
possession is strictly construed and any presumption is in favor of the holder
of the legal title’’); Hollingsworth v. Williamson, 300 S.W.2d 194, 198 (Tex.
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v. Heirs of Bond, 345 Conn. 119, 143, 282 A.3d 1201
(2022).
Clear and convincing proof of the elements of an
adverse possession claim is an ‘‘exacting standard’’; Top
of the Town, LLC v. Somers Sportsmen’s Assn., Inc.,
69 Conn. App. 839, 844, 797 A.2d 18, cert. denied, 261
Conn. 916, 806 A.2d 1058 (2002); that ‘‘lies between the
belief that is required to find the truth or existence of
the [fact in issue] in an ordinary civil action and the
belief that is required to find guilt in a criminal prosecu-
tion. . . . [The burden] is sustained if evidence induces
in the mind of the trier a reasonable belief that the
facts asserted are highly probably true . . . .’’ (Internal
quotation marks omitted.) Wildwood Associates, Ltd.
v. Esposito, 211 Conn. 36, 42, 557 A.2d 1241 (1989); see
also Esposito v. Stackler, 160 App. Div. 2d 1154, 1155,
554 N.Y.S.2d 361 (1990) (clear and convincing proof is
‘‘stringent and demanding standard’’). In evaluating a
claim of adverse possession under that demanding stan-
dard, ‘‘[e]very presumption is in favor of possession in
subordination to the title of the true owner.’’ (Internal
quotation marks omitted.) Woycik v. Woycik, 13 Conn.
App. 518, 522, 537 A.2d 541 (1988); see also 2 C.J.S. 783,
Adverse Possession § 274 (2023) (‘‘[E]very presumption
is in favor of the holder of legal title . . . . Every pre-
sumption is against the [party claiming adverse posses-
sion] and none is in their favor.’’ (Footnotes omitted.)).
That presumption is rooted in the recognition that
‘‘there are no equities in favor of a person seeking to
acquire property of another by adverse holding.’’ (Inter-
nal quotation marks omitted.) Top of the Town, LLC v.
Somers Sportsmen’s Assn., Inc., supra, 848 n.4.
Civ. App. 1957) (‘‘the evidence of adverse possession must be clear and
positive, and should be strictly construed’’); Lindokken v. Paulson, 224 Wis.
470, 475, 272 N.W. 453 (1937) (‘‘[t]he rule is that the evidence of adverse
possession must be positive, must be strictly construed against the person
claiming a prescriptive right, and that every reasonable intendment should
be made in favor of the true owner’’).
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The demanding burden placed on a party claiming
adverse possession of the property of another reflects
the fact that such actions are disfavored. See, e.g., Strie-
fel v. Charles-Keyt-Leaman Partnership, 733 A.2d 984,
988 (Me. 1999) (‘‘the law disfavors the transfer of land
by adverse possession’’); Rote v. Gibbs, 195 App. Div.
3d 1521, 1523, 151 N.Y.S.3d 280 (‘‘the law disfavors
the acquisition of title by adverse possession’’), appeal
dismissed, 37 N.Y.3d 1106, 178 N.E.3d 1281, 157 N.Y.S.3d
402 (2021); Amoorpour v. Kirkham, 543 P.3d 677, 682
(Okla. 2023) (‘‘[a]dverse possession claims are disfa-
vored and are not to be made by inference’’); Woodward
v. Valvoda, 478 P.3d 1189, 1197 (Wyo. 2021) (‘‘[a]dverse
possession claims are disfavored in the law’’). As the
Supreme Court of Ohio explained, ‘‘[a]dverse [p]osses-
sion represents the forced infringement of a landown-
er’s rights, a decrease in value of the servient estate,
the encouraged exploitation and development of land,
the generation of animosity between neighbors, a
source of damages to land or loss of land ownership,
the creation of forced, involuntary legal battles, and
uncertainty and perhaps the loss of property rights to
landowners with seisin. . . . Accordingly, we have rec-
ognized that adverse possession is disfavored.’’ (Cita-
tion omitted; internal quotation marks omitted.) Houck
v. Board of Park Commissioners, 116 Ohio St. 3d 148,
155, 876 N.E.2d 1210 (2007). Moreover, ‘‘[a] successful
adverse possession action results in a legal titleholder
forfeiting ownership to an adverse holder without com-
pensation. . . . [T]hat is why the elements of adverse
possession are stringent.’’ Grace v. Koch, 81 Ohio St.
3d 577, 580, 692 N.E.2d 1009 (App. 1998).
‘‘[T]he question of whether the elements of an adverse
possession claim have been established by clear and
convincing evidence is a factual one subject to the
clearly erroneous standard of review.’’ Rudder v.
Mamanasco Lake Park Assn., Inc., 93 Conn. App. 759,
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785, 890 A.2d 645 (2006). ‘‘A finding of fact is clearly
erroneous when there is no evidence in the record to
support it . . . or when although there is evidence to
support it, the reviewing court on the entire evidence
is left with the definite and firm conviction that a mis-
take has been committed. . . . A trial court’s findings
in an adverse possession case, if supported by sufficient
evidence, are binding on a reviewing court . . . .’’
(Internal quotation marks omitted.) Skelly v. Brucher,
134 Conn. App. 337, 341, 38 A.3d 261 (2012); see also
Pagano v. Ippoliti, 245 Conn. 640, 654, 716 A.2d 848
(1998) (‘‘[t]he trial court, having heard the testimony
and observed the witnesses, was in a position far supe-
rior to ours to judge the evidentiary record as a whole’’);
Katz v. Martin, 143 Conn. 215, 217, 120 A.2d 826 (1956)
(‘‘To interfere with the [trial court’s] conclusions would
be to substitute different findings of facts. This cannot
be done where there is evidence upon which reasoning
minds might disagree. . . . It is not given to us to retry
a case. . . . The case presented controversial issues
of fact which were solely within the province of the trial
court to decide.’’ (Citations omitted.)); Federal Deposit
Ins. Corp. v. Mutual Communications Associates, Inc.,
66 Conn. App. 397, 403 n.3, 784 A.2d 970 (2001) (‘‘[w]e
cannot substitute our view of the evidence for the trial
court’s finding’’), appeal dismissed, 262 Conn. 358, 814
A.2d 377 (2003).

In her principal appellate brief, the plaintiff raises
two related, yet distinct, challenges to the facts found
by the trial court. The plaintiff first asserts that she had
proven her adverse possession claim with respect to
‘‘the entirety of the claim area,’’ which claim is in con-
flict with, and presents a challenge to, the court’s finding
that she had done so only as to ‘‘some areas.’’ The
plaintiff also argues that the court’s finding that the
boundaries of any adversely possessed property were
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‘‘uncertain and indeterminate’’ is clearly erroneous. We
address each argument in turn.
I
The plaintiff contends that the court erroneously con-
cluded that she failed to establish her claim of adverse
possession with respect to all areas of the disputed
portion. We disagree.
When a party seeks to acquire by adverse possession
a portion of real property belonging to another, that
party bears the burden of establishing exclusive posses-
sion over all areas of that portion. As this court has
explained, ‘‘[w]hen not claimed under color of title,
adverse possession is limited to the area of land actually
possessed. . . . It can only extend as far as [the] claim-
ant has actually occupied and possessed the land in
dispute . . . and the adverse possession of one area
may not be inferred from that of a separate area absent
independent proof of occupation.’’ (Citations omitted;
internal quotation marks omitted.) Durkin Village
Plainville, LLC v. Cunningham, 97 Conn. App. 640,
654, 905 A.2d 1256 (2006); see also Skelly v. Brucher,
supra, 134 Conn. App. 343 (‘‘the court determined that
the defendants did not meet their burden of proving
what specific areas of the plaintiffs’ property the defen-
dants and [their predecessors] had actually occupied’’
(emphasis added; footnote omitted)); Lisiewski v. Sei-
del, 95 Conn. App. 696, 707–12, 899 A.2d 59 (2006) (not-
ing that ‘‘the plaintiff is entitled only to the portion of
the disputed area that he actually occupied during the
course of his adverse possession’’ and concluding that
plaintiff had not established adverse possession over
all areas of disputed portion of defendants’ property).
In its memorandum of decision, the court found that
the disputed portion of the defendant’s property con-
tained three different areas: the lawn area, the wooded
area, and the muddy area. The court found that, from
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1966 to 1985, David Sr. ‘‘demonstrated possession of
some areas on the disputed [portion] as would an owner
thereof. His children played within it. [David Sr.], with
the help of [David Jr.], mowed, raked, planted flow-
erbeds, created an access path, removed fallen tree
limbs and chopped wood on much of the disputed [por-
tion]. All of these acts were certainly consistent with
displaying a right of exclusive possession over the prop-
erty. . . . It was done in an open and visible manner
on a regular basis.’’ (Citation omitted; emphasis added.)
At the same time, the court expressly found that, in
contrast to the activities conducted on other areas of
the disputed portion, ‘‘[n]o activities of any conse-
quence . . . occurred in [the] muddy area.’’
That finding is supported by the evidence in the
record. At trial, David Jr. was asked what he had done
‘‘to maintain [the] muddy area’’; he replied, ‘‘Nothing.’’
David Jr. further confirmed that neither he nor any
member of his family had made ‘‘any improvements’’
in that area. See, e.g., Porter v. Schaffer, 126 Md. App.
237, 277, 728 A.2d 755 (1999) (‘‘something more than
‘mere occasional use of land’ is needed’’ to demonstrate
adverse possession), cert. denied, 355 Md. 613, 735 A.2d
1107 (1999).
There also was no evidence that any member of the
Mulvey family posted signs or installed fencing on the
disputed portion generally or the muddy area specifi-
cally, which would have apprised the title owner of
their purportedly hostile possession of that property.7
7
As other courts have noted, an adverse possessor must ‘‘fly the flag over
the [disputed portion] and put the true owner upon notice that his land is held
under an adverse claim of ownership.’’ (Internal quotation marks omitted.)
Snowden & McSweeny Co. v. Hanley, 195 Miss. 682, 687, 16 So. 2d 24 (1943);
see also Barrell v. Renehan, 114 Vt. 23, 29, 39 A.2d 330 (1944) (adverse
possessor ‘‘must unfurl his flag on the land, and keep it flying so that the
owner may see, if he will, that an enemy has invaded his dominions and
planted his standard of conquest’’).
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See O’Connor v. Larocque, 302 Conn. 562, 598, 31 A.3d
1 (2011) (‘‘there is no evidence in the record that the
plaintiff’s possession and use of the lot was so openly
and notoriously hostile that the defendant had notice
of her adverse possession claim’’); Benjamin v. Nor-
walk, 170 Conn. App. 1, 23, 153 A.3d 669 (2016) (in case
where court found adverse possession had not been
established, defendant testified that ‘‘[h]e has never
seen a chain, fence, sign, name on the pillars, or other
circumstance that would suggest that the plaintiffs
claimed possession of the contested area’’); see also
Machado v. Southern Pacific Transportation Co., 233
Cal. App. 3d 347, 362–63, 284 Cal. Rptr. 560 (1991)
(defendant posted ‘‘multiple signs on the perimeter of
the property’’ stating ‘‘Private Property’’ and ‘‘No Tres-
passing’’ that ‘‘clearly [gave] notice that [the defendant]
considered itself in possession and control of the prop-
erty, and certainly raised the inference that [it] was
asserting an ownership interest’’); Boneno v. Lasseigne,
534 So. 2d 968, 973 (La. App. 1988) (‘‘some substantial
and readily observable physical signs [of adverse pos-
session] must be present in order to make the action
public; there must be some easily visible evidence
which could place a possessor ‘on notice’ ’’). To the
contrary, David Jr. testified at trial that neither he nor
any member of his family ever posted signage or
installed fencing on any part of the disputed portion.8
8
At trial, the following colloquy transpired between counsel for Bank of
America, N.A., and David Jr.:
‘‘Q. You never place[d] any signage indicative of ownership to say no
trespassing, keep out, private property, anything like that around the [dis-
puted portion], right?
‘‘A. No, sir.
‘‘Q. And no such signs ever existed throughout your experience with the
[plaintiff’s] property since 1966?
‘‘A. No, sir.
‘‘Q. Okay. And no fences or walls, or anything like that were ever built
by you or your parents to enclose the [disputed portion]?
‘‘A. No, sir.’’
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David Jr. further testified that David Sr. did not maintain
the existing stone walls that abut and intersect the
disputed portion. See Rayburn v. Coffelt, 153 Or. App.
76, 81, 957 P.2d 580 (1998) (concluding that ‘‘the contin-
uous existence of [a] fence alone is insufficient to put
defendants and their predecessors on notice of an
adverse possession claim’’ when plaintiff ‘‘did not main-
tain the fence, post no-trespassing signs or take any
other affirmative steps to put defendants on notice that
the fence marked the boundary of his property’’).
Moreover, the general survey prepared by Rapp iden-
tifies only two areas on the disputed portion—what was
labeled ‘‘wooded area maintained by Mulvey’’ on its
westerly side and a ‘‘lawn area maintained by Mulvey’’
on its easterly side. Rapp testified at trial that he pre-
pared that survey on the basis of information furnished
to him by David Jr., rather than his own observations
of the disputed portion. Yet the general survey does
not include any mention of the muddy area, nor does
it indicate where that area was located or whether it
was maintained by any member of the Mulvey family.
Rapp further testified that the muddy area was located
‘‘between the areas’’ that David Jr. had identified as
ones that had been ‘‘maintained’’ by the Mulvey family.
That evidence supports a finding that the plaintiff had
not established her claim of adverse possession with
respect to the muddy area by clear and convincing
proof.
The plaintiff argues that, in his testimony, David Jr.
offered evidence that David Sr. cleared leaves and main-
tained a path through the muddy area. Although the
court in its memorandum of decision found that David
Sr. ‘‘created an access path’’ on the disputed portion,
it did not find that said path traversed the muddy area.
Nor did David Jr. identify the location of that path with
any precision in his testimony, other than to say that it
was ‘‘between those [stone] walls’’ depicted in a central
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location on the general survey. David Jr. admitted that
the path no longer existed, that he never took any mea-
surements to determine its location, and that he could
only provide an estimate of where it previously was
located.
David Jr. also testified that David Sr. used a tractor
to access the wooded area. At the same time, David Jr.
testified that the muddy area was caused by a ‘‘natural
spring’’ that had ‘‘water bubble up from the ground.’’
As he stated: ‘‘You could see the water coming up, and
it has a flow to it.’’ His sister, Lee Viteretto, also testified
that the disputed portion, as depicted in photographs
admitted into evidence, had ‘‘always looked like that’’
since she was a child, the only changes being that ‘‘[t]he
trees are bigger’’ and that there was a ‘‘little bit’’ of
overgrowth. In light of that testimony, the court reason-
ably could conclude that the path created by David Sr.
to access the wooded area with a tractor did not tra-
verse the muddy area.
Furthermore, ‘‘[t]he mere existence of evidence tend-
ing to support a rejected claim of adverse possession
does not establish that the court’s finding that the claim
was not proven by clear and convincing proof is clearly
erroneous.’’ Skelly v. Brucher, supra, 134 Conn. App.
344; see also Shepard Group, LLC v. Arnold, 124 Conn.
App. 41, 45, 3 A.3d 975 (2010) (‘‘[t]he fact that there
was evidence in support of the defendants’ claim of
adverse possession does not establish that the court’s
finding . . . is clearly erroneous’’). As the sole arbiter
of credibility, the court was free to accept or reject, in
whole or in part, the testimony offered by David Jr. at
trial.9 See Skelly v. Brucher, supra, 345; see also 2 C.J.S.,
9
We note that David Jr. admitted at trial that he was a beneficiary under
the trust laying claim to the disputed portion and that he was involved in
‘‘the commencement of this lawsuit . . . .’’ As this court has observed in
the adverse possession context, ‘‘[a] court properly may take into account
testimony from a witness with an interest in the outcome of the case’’ and
‘‘is at liberty to discredit any witness . . . .’’ (Internal quotation marks
omitted.) Benjamin v. Norwalk, supra, 170 Conn. App. 26.
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supra, § 295, p. 801 (‘‘[e]vidence of adverse possession
is strictly construed . . . against the person claiming
a prescriptive right . . . and the testimony of [the]
claimant or their witnesses need not be accepted at face
value’’ (footnotes omitted)). In light of the foregoing,
we conclude that the court’s finding that the plaintiff
failed to establish her claim of adverse possession with
respect to all areas of the disputed portion is not clearly
erroneous.
II
The plaintiff also claims that the court erroneously
concluded that she failed to establish the boundaries
of the areas of the disputed portion with reasonable
certainty. We do not agree.
In its memorandum of decision, the court found that
the plaintiff had demonstrated exclusive possession
over ‘‘some areas’’ of the disputed portion during a
nineteen year period from 1966 to 1985. The court also
found that the ‘‘precise boundary lines’’ of the areas over
which David Sr. had demonstrated exclusive possession
were ‘‘uncertain and indeterminate’’ and relatedly found
that the muddy area was ‘‘an indeterminate size.’’ The
court thus concluded that it could not ‘‘identify the
boundary lines of property supposedly acquired by
adverse possession with any confidence.’’
The court’s findings are supported by evidence in the
record before us. The survey prepared by Rapp and
admitted into evidence (1) was of general character,10
(2) was predicated on information furnished by David
Jr., rather than Rapp’s own observations of the disputed
portion, (3) did not identify all three areas of the dis-
puted portion, and (4) did not delineate the boundaries
of either of the two areas that are labeled ‘‘maintained
10
We reiterate that the general survey is titled ‘‘General Location Survey.’’
In its upper left corner, that survey specifically notes that ‘‘[t]he sole intention
of this map is to depict [the disputed portion]’’ as ‘‘identified’’ by David Jr.
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by Mulvey.’’ Rapp testified at trial that he did not mea-
sure the wooded or lawn areas and did not know the
square footage of either area. Rapp also testified that
he did not stake any of the areas in the disputed portion.
When asked if a property owner would be able to rely
on the general survey to transfer title to the disputed
portion, Rapp stated: ‘‘Without further work I would
advise against it.’’
In his testimony, David Jr. likewise was unable to
provide any specifics regarding the precise boundaries
of the wooded area, the lawn area, or the muddy area.
On cross-examination, David Jr. admitted that he was
providing an ‘‘educated guess’’ as to certain locations
in the disputed portion and stated: ‘‘I don’t know what
else to tell you, because I can’t give you any numbers.
And I can’t give you measurements.’’ In addition, both
David Jr. and his sister testified that the boundaries of
the wooded area were not readily discernable.11 Their
testimony, like the general survey, is not clear and con-
vincing proof of the boundaries of the areas contained
in the disputed portion.
When a party seeks to acquire by adverse possession
a portion of real property belonging to another, that
11
At trial, David Jr. testified that there were no markers or surveyor’s
stakes in the wooded area and that, as a child, he had ‘‘no idea’’ where the
property lines of the wooded area were located. He testified that he assumed
the westerly boundary was marked by a stone wall, which is shown on the
general survey as being located on property belonging to a third party that
is not included in the plaintiff’s claim of adverse possession. His sister
similarly testified that she did not know how far back the wooded area on
which she played as a child extended.
David Jr.’s testimony that ‘‘[w]e thought the stone walls were the property
lines’’ also is at odds with the demarcation of the disputed portion on Rapp’s
survey. On that survey, the westerly boundary of the disputed portion does
not extend to the stone wall at the rear of wooded area but, rather, ends
before that wall—most notably at its northwest and southwest corners. On
cross-examination, David Jr. conceded that the westerly boundary that he
identified to Rapp was based on a property line with a third party and not
the stone wall.
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party bears the burden of establishing exclusive posses-
sion over all areas to which it lays claim. See Skelly v.
Brucher, supra, 134 Conn. App. 343; Durkin Village
Plainville, LLC v. Cunningham, supra, 97 Conn. App.
654; Lisiewski v. Seidel, supra, 95 Conn. App. 707–12.
As our Supreme Court has observed, ‘‘[w]here a person
claims land by adverse possession, his title is limited
to the boundaries of his actual, exclusive occupation,
and can not extend beyond those boundaries.’’ Hun-
tington v. Whaley, 29 Conn. 391, 394 (1860).
In the present case, the trial court found that the
plaintiff established that David Sr. had exercised exclu-
sive possession over ‘‘some areas’’ of the disputed por-
tion, but not all. To prevail on her adverse possession
claim, it therefore was incumbent on the plaintiff to
provide clear and convincing evidence as to the bound-
aries of those areas. See, e.g., Barrs v. Zukowski, 148
Conn. 158, 166, 169 A.2d 23 (1961) (adverse possession
claim failed due to plaintiffs’ ‘‘inability to locate the
proper boundary lines’’); Adametz v. Adametz, Docket
No. CV-XX-XXXXXXX-S, 2002 WL 31172465, *5 (Conn.
Super. August 27, 2002) (‘‘[The] defendants’ claim of
adverse possession must fail . . . because they have
not established the boundaries of the land claimed to
have been acquired by adverse possession. It was their
burden to do so.’’); Miller v. Onorato, Docket No. CV-
XX-XXXXXXX-S, 1996 WL 409226, *3 (Conn. Super. June
27, 1996) (rejecting defendants’ adverse possession
claim due to their ‘‘failure to depict an area which can
be found to have been adversely possessed and which
can be delineated by a trier’’), aff’d, 45 Conn. App. 908,
693 A.2d 309, cert. denied, 243 Conn. 911, 701 A.2d 332
(1997); Downing v. Bird, 100 So. 2d 57, 64 (Fla. 1958)
(‘‘the limits, location, and extent of [a claimant’s] occu-
pation must be definitely and clearly established by
affirmative proof’’ (internal quotation marks omitted));
McClellan v. King, 133 Ill. App. 2d 914, 916, 273 N.E.2d
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696 (1971) (‘‘clear and definite proof of the location of
the land . . . is a prerequisite to obtaining title’’ by
adverse possession); Pokorski v. McAdams, 204 Neb.
725, 731, 285 N.W.2d 824 (1979) (‘‘[a] claimant of title
by adverse possession must further show the extent of
his possession [and] the exact property which was the
subject of the claim’’ (internal quotation marks omit-
ted)); see also 2 C.J.S., supra, § 260, p. 769 (‘‘[a]dversely
possessed property must be of fixed and definite bound-
aries’’); id., § 271, p. 781 (burden on party claiming
adverse possession to establish ‘‘the exact property
which [is] the subject of the claim of ownership’’).
Requiring a plaintiff in an adverse possession action
to provide clear proof of the precise boundaries of the
real property in question is consistent with the precept
that ‘‘[a] landowner claiming more property than the
claimant’s title reflects bears the burden of proof in
[a] boundary dispute, while the neighboring adjacent
landowners, relying on the title, do not bear the burden
of proving the boundary.’’ 11 C.J.S. 218, Boundaries
§ 186 (2021); accord Steinman v. Maier, 179 Conn. 574,
575, 427 A.2d 828 (1980) (‘‘[t]he burden was on the
plaintiff to fix [the] location’’ of boundary in dispute);
Velsmid v. Nelson, 175 Conn. 221, 224, 397 A.2d 113
(1978) (‘‘[a] plaintiff’s claim may fail simply as a result of
his or her inability to establish adequately the disputed
boundary line’’); LaFreniere v. Gallinas, 148 Conn. 660,
665, 174 A.2d 46 (1961) (plaintiff alleging possession of
disputed area in boundary dispute ‘‘is obliged to locate
the boundary line’’); Simmons v. Addis, 141 Conn. 738,
741, 110 A.2d 457 (1954) (‘‘[t]he burden of establishing
the location of the boundary line where he claimed it
to be was upon the plaintiff’’). The court’s finding in
the present case that the plaintiff had not established
with any reasonable certitude the boundaries of any
areas over which she had claimed exclusive possession
comports with that bedrock real property principle.
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Requiring such proof is consonant with the maxim that
a claim of adverse possession, and the evidence submit-
ted in support thereof, must be strictly construed
against the party who is seeking to forever alter the
boundaries of the title owner’s property. See Dowling
v. Heirs of Bond, supra, 345 Conn. 143; Huntington v.
Whaley, supra, 29 Conn. 398; see also footnote 6 of this
opinion.
In the present case, the record substantiates the
court’s findings that the plaintiff failed to provide clear
and convincing evidence ‘‘of the precise boundary lines
of any property she may have otherwise by satisfying
the elements of adverse possession’’ and that said
boundary lines were uncertain and indeterminate.
Those findings, therefore, are not clearly erroneous.
The judgment is affirmed.
In this opinion the other judges concurred.