Pascual v. Perry (Dissent)

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Pascual v. Perry

ALVORD, J., dissenting. I agree with the majority
opinion’s recitation of the factual and procedural his-
tory of this appeal. I respectfully disagree with the
majority’s rejection of the third claim raised by the
plaintiffs, Alexa Pascual and Freiny Francisco, challeng-
ing the trial court’s conclusion that the defendant,
Tammy K. Perry, could tack her predecessor in title’s
period of adverse possession onto her own. I, therefore,
would reverse the judgment of the trial court and
remand the matter for a new trial.1
At the outset, I briefly reiterate the substantial rights
at stake in an adverse possession action and the com-
mensurate, demanding standard applied to such a disfa-
vored claim. ‘‘The doctrine of adverse possession is to
be taken strictly. . . . Clear and convincing proof of
the elements of an adverse possession claim is an exact-
ing standard . . . . In evaluating a claim of adverse
possession under that demanding standard, [e]very pre-
sumption is in favor of possession in subordination to
the title of the true owner. . . . 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. . . .
‘‘The demanding burden placed on a party claiming
adverse possession of the property of another reflects
the fact that such actions are disfavored. . . . 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
1
Because I agree with the plaintiffs’ third claim, I need not reach the
other claims of error advanced by the plaintiffs.
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landowners with seisin. . . . Accordingly, we have rec-
ognized that adverse possession is disfavored. . . .
Moreover, [a] successful adverse possession action
results in a legal titleholder forfeiting ownership to an
adverse holder without compensation. . . . [T]hat is
why the elements of adverse possession are stringent.’’
(Citations omitted; footnote omitted; internal quotation
marks omitted.) Mulvey v. Palo, 226 Conn. App. 495,
500–503, 319 A.3d 211, cert. denied, 350 Conn. 902, 322
A.3d 1059 (2024).
I also note the well settled law regarding tacking
successive possessions to establish an adverse posses-
sion claim. ‘‘The authoritative rule of tacking successive
possessions for the acquisition of title after fifteen years
is found in Smith v. Chapin, 31 Conn. 530 (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]. Doubt-
less the possession must be connected and continuous,
so that the possession of the true owner shall not con-
structively intervene between them; but such continuity
and connection may be effected by any conveyance
agreement or understanding which has for its object a
transfer of the rights of the possessor, or of his posses-
sion, and is accompanied by a transfer of possession
in fact. . . . Smith v. Chapin, supra, 531–32. Privity of
possession is defined as a continuity of actual posses-
sion, as between prior and present occupant, the pos-
session of the latter succeeding the possession of the
former under deed, grant, or other transfer or by opera-
tion of law.’’ (Citation omitted; emphasis in original;
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
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area, either orally or by deed, destroys the connection
between successive adverse claimants which is neces-
sary to the successful acquisition of title by tacking
successive adverse possessions . . . .’’ (Internal quota-
tion marks omitted.) Supronowicz v. Eaton, 224 Conn.
App. 66, 76, 312 A.3d 100, cert. denied, 349 Conn. 904,
312 A.3d 1057 (2024).
As the majority opinion recognizes, the record in the
present case does not support a determination that the
defendant’s predecessor in title, Veta Pipa, expressly
conveyed the disputed area to the defendant. This court
previously has suggested, however, that a theory of
implied conveyance may be available to a party
attempting to establish privity of possession. Because
that is the only possible theory on which the trial court
in the present case could have permitted tacking, we
reiterate that concept. ‘‘[T]he 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 con-
tract, 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.’’ (Internal quotation
marks omitted.) Id., 82, quoting annot., 17 A.L.R.2d 1160,
§ 8 (1951).
The plaintiffs’ claim in the present case challenges
the trial court’s conclusion that the defendant, who had
used the disputed area for five years, could tack on her
predecessor in interest’s thirty years of use. Specifically,
the plaintiffs argue that the court erred in concluding
that tacking applies in this case because there was ‘‘no
showing or evidence of Pipa’s specific intent to transfer
the disputed area to the defendant.’’
After the trial court issued its decision in the present
case, this court, in reviewing a pretrial decision on a
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summary judgment motion in Supronowicz v. Eaton,
supra, 224 Conn. App. 80, considered whether, for the
purpose of tacking, a ‘‘grantor’s intent to convey a dis-
puted area may be established by implication.’’ After
reviewing case law from other jurisdictions, this court
stated that ‘‘[i]mplication of a transfer of possession
of the disputed area is most commonly found in two
circumstances: (1) when the disputed area is enclosed
within the deed described property or (2) when a build-
ing or other structure stands in part on the disputed
area.’’ (Footnote omitted.) Id., 83. The court next stated
that ‘‘a few cases . . . find that the disputed area was
impliedly conveyed because a natural boundary
appeared to enclose the property.’’ Id., 84. Because the
appeal in Supronowicz was from the trial court’s ren-
dering of summary judgment, this court’s consideration
was confined to whether the trial court improperly had
determined that there was no genuine issue of material
fact as to whether privity existed. In reversing the grant-
ing of the summary judgment motion, this court con-
cluded that ‘‘[w]hether an implied transfer of the dis-
puted area may be inferred from the evidence in the
present case raises a question of fact that cannot prop-
erly be resolved by the court at summary judgment.’’
Id., 85–86.
In the present case, the trial court held a trial on the
merits of the adverse possession count of the defen-
dant’s counterclaim and failed to resolve the factual
issue of whether an implied transfer of the disputed
area may be inferred from the evidence. The trial court
instead identified the successive use of the disputed
area by the defendant and her predecessor in interest
and concluded that ‘‘[t]he defendant is able to ‘tack’
. . . Pipa’s thirty years of exclusive use of the disputed
piece onto five more years of her own use. This creates
an uninterrupted period of thirty-five years of exclusive
use . . . .’’ The characterization of the defendant and
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Pipa’s use as uninterrupted, however, does not repre-
sent a finding of privity. The trial court made no findings
of fact as to Pipa’s intent to transfer possession of the
disputed area. As this court has recognized, ‘‘[w]hether
privity exists in cases of implied transference is inher-
ently a fact dependent inquiry.’’ Supronowicz v. Eaton,
supra, 224 Conn. App. 85.
Moreover, the findings made by the trial court in
connection with other elements of the defendant’s claim
of adverse possession are inconsistent with a conclu-
sion that the defendant could avail herself of the tacking
doctrine. Specifically, the trial court’s findings call into
question its conclusion that tacking was available under
the considerations outlined in Supronowicz. See
Padula v. Arborio, 219 Conn. App. 432, 459, 296 A.3d
276 (reversing in part judgment of adverse possession
with respect to delineation of property where award
contradicted court’s own factual findings), cert. denied,
348 Conn. 903, 301 A.3d 528 (2023).
First, the trial court’s findings as to the existence and
placement of partial stockade fencing are inconsistent
with a conclusion that the disputed area was enclosed
within the deed described property. Specifically, the
trial court found that, although the fence previously
had extended farther south, nearly to the southerly
boundary of both properties, ‘‘[t]he fence does not
extend all the way to Albany Street,’’ but rather only
to the rear wall of the plaintiffs’ house. Moreover, the
trial court found that the ‘‘location at the top of [a small
rise in elevation] helps to provide the rear yard of the
plaintiffs’ house with privacy from anyone looking east
from the defendant’s property.’’ Courts have distin-
guished fences of convenience from those appearing
to mark a boundary line, with the partial fence at issue
here serving as the former rather than the latter. See
Rutar Farms & Livestock, Inc. v. Fuss, 651 P.2d 1129,
1134 (Wyo. 1982) (‘‘[a]n irregular fence, following the
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general course of a river and obviously not following
what any reasonable person would consider a boundary
line, appears to be a fence of convenience or a control
fence rather than a boundary fence’’). Accordingly, the
trial court’s findings regarding the partial stockade
fence are inconsistent with a determination that the
disputed area was enclosed within the deed described
property.
Second, the court’s findings are correspondingly
unsupportive of an intent to convey the disputed area
on the basis that a building or other structure stands
in part on the disputed area. The court’s only finding
with respect to an improvement in the disputed area
was the yard drain. The court found that the defendant’s
predecessor in title had a contractor install the yard
drain ‘‘at the southerly end of the ditch,’’ following the
intrusion of water into the basement of the defendant’s
home. The court found that ‘‘the evidence is not clear
about the workings of the ‘yard drain’ but the evidence
is that there is no underground piping involved with
the gravel ditch.’’ It would be unreasonable to conclude
that the yard drain constituted a ‘‘structure stand[ing]’’
on the disputed area for purposes of proving the intent
to convey the disputed area, given the limited findings
associated with it.
Finally, the court’s finding that a ‘‘small rise in eleva-
tion’’ existed is not supportive of a determination that
a ‘‘natural boundary appear[s] to enclose the property.’’
Neither Supronowicz nor the authorities cited therein
involve a small rise in elevation, but rather more sub-
stantial natural boundaries. Cf. Supronowicz v. Eaton,
supra, 224 Conn. App. 85 (genuine issue of material
fact existed with respect to whether implied transfer
occurred on basis of existence of ravine and creek
bordering disputed area); Freed v. Cloverlea Citizens
Assn., Inc., 246 Md. 288, 292, 228 A.2d 421 (1967) (tack-
ing permitted where drainage ditch, which was
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described as ‘‘a natural fence,’’ supported finding of
implied conveyance (internal quotation marks omit-
ted)); Clithero v. Fenner, 122 Wis. 356, 359, 99 N.W.
1027 (1904) (predecessor in title had ‘‘[e]nclosed [the
disputed area] with a fence on all sides, except along
the creek, where the bank and water formed a natural
barrier’’). Accordingly, the trial court’s finding of a small
rise in elevation is not equal to a finding of a natural
boundary supporting an inference of an implied transfer
of the disputed area.
I am persuaded, reading the trial court’s memoran-
dum of decision as a whole, that the court’s conclusion
that the defendant could avail herself of the tacking
doctrine amounts to reversible error. That conclusion
is unsupported by any factual findings of an intention
by Pipa to convey the disputed area to the defendant,
and those factual findings that the court made are incon-
sistent with its conclusion that tacking was available
to the defendant.
Accordingly, I respectfully dissent.