Leavenworth v. Sturges

Frederick R. LEAVENWORTH et al. v. Curtiss G. STURGES, Jr.

No. UWYCV176036806S

Superior Court of Connecticut, Judicial District of Waterbury, Waterbury

December 31, 2018

UNPUBLISHED OPINION

OPINION

AGATI J.

The parties tried this matter before the court on October 23 2018.

The plaintiffs Frederick R. Leavenworth and Barbara B Leavenworth commenced this matter against the defendant Curtiss G. Sturges, Jr., in one-count complaint consisting of three claims. In these three claims, the plaintiffs bring: (1) an action to quiet title as to the common boundary line that the parties’ abutting properties share; (2) an action to quiet title regarding the plaintiffs’ right of first refusal to purchase the defendant’s property; and (3) an action seeking termination of the defendant’s reserved right of way over the plaintiffs’ property.

The plaintiff, Frederick R. Leavenworth, died prior to the hearing of this case. The remaining plaintiff, Barbara B. Leavenworth, now owns the property in survivorship and continues to prosecute the action.

The salient facts in this matter are as follows:

The defendant’s father, George C. Sturges, was the owner of a parcel property located in Woodbury, Connecticut, which consisted of approximately thirty-five and half acres and abutted White Dear Rocks Road prior to 1967.

By contract executed in March 1967, George C. Sturges agreed to sell a portion of that property to the plaintiffs. The portion of the property that Sturges sold consisted of a home and approximately fifteen acres of property. Sturges in effect subdivided his property to effectuate the sale. Nevertheless, a survey was not done at the time of the sale to plot out the boundary line between the property conveyed to the plaintiffs and the property retained by Sturges. Instead, the plaintiff, Mr. Leavenworth and Mr. Sturges walked the property together and placed wooden stakes along the boundary line agreed to by the parties prior to the sale.

The boundary between the properties is referenced in the warranty deed dated April 29, 1967 in the following manner:

The boundary line between the above premises and the remaining land of George C. Sturges is marked by stakes which will be replaced by permanent boundary markers at the expense of the grantor.

Although wooden stakes had been placed by the time of the sale of the property, the permanent markers, which were to be placed at the expense of the grantor, were never installed. In the meantime, over the course of over 50 years, the wooden stakes deteriorated and no longer exist to mark the agreed to boundary line between the properties.

The plaintiffs have owned the property known as 365 White Deer Rocks Road continuously since 1967. The plaintiffs began to contemplate selling their property, as well as making a conveyance of a portion of the property under a conservation easement to the local land trust. Prior to taking any action, the plaintiffs hired Curtiss B. Smith, a local surveyor, to prepare a survey of their property.

Sturges passed away in 2011 as testified to by the defendant. The defendant is now the owner of the abutting property. When the plaintiffs advised the defendant of the result of the survey, the defendant challenged the boundary line as determined by Mr. Smith.

Accordingly, the issue presented to this court is: Where is the boundary line between the properties?

The testimony at trial was provided by Mr. Smith on behalf of the plaintiffs, and the defendant.

Smith testified that Mr. Leavenworth walked along a portion of the eastern boundary of the property with him to show him where the boundary line had been agreed to between himself and Sturges. In walking along the boundary line one partial remaining wooden stake was found by Smith. Smith noted the stake in the survey he prepared, which is dated June 20, 2017. Based on the location of the stake and Mr. Leavenworth’s assistance in walking along the portion of the boundary line, Smith was able to extrapolate the length and location of the boundary line between the abutting properties.

As a result of his conclusion of where the boundary line lay, Smith estimated that the size of the plaintiffs’ parcel would total 19.9971 acres. While the deed states that the parcel would be fifteen acres more or less, Smith testified that many times acreage amounts are not precise particularly in older deeds. In this case in particular, because a survey had not been done at the time of the conveyance, the grantor had estimated that conveyance of the portion of the property to the plaintiffs in 1967 was approximately fifteen acres.

In the defendant’s testimony, he disputes the location of the boundary line proposed by Smith. The defendant testified that he had walked the property with his father over the years and claimed that the boundary line is in fact closer to the plaintiffs’ home. The defendant also references, and admitted into evidence, a map, known as the Jacob map dated October 1, 1956. (See defendant’s Exhibit A2.) This map references the property acquired by Sturges from the Jacobs in 1957. It further indicates that the property in total had an area of approximately thirty-five and half acres more or less.

The defendant in his testimony also references a second version of the Jacob map, which is the defendant’s Exhibit A2. This second version of the map appears to have a hand-drawn pencil line that allegedly marks where the boundary line should be between the two properties. Nevertheless, the defendant did not provide any testimony regarding the circumstances of how or who drew this line on the map. There is no corroboration or substantiation that this was the line that had been agreed to by Sturges and Mr. Leavenworth. Moreover, this hand-drawn line between the properties has the boundary line passing over the septic system and through the driveway entrance to the plaintiffs’ residence. The defendant’s reliance upon this map is further at issue because the Jacobs map is not referenced anywhere in either the sale agreement and/or the deed conveying the property to the plaintiffs in 1967. Since the map presumably existed at the time of the sale in 1967, it begs the question as to why it was not referenced anywhere in the deed to indicate the location of the boundary line agreed to by the parties, if in fact that was the intention of the parties. The language of the deed expresses otherwise. It also appears that the Jacob map was not prepared by a surveyor.

In making its decision, the court references the entire property description in the deed of April 29, 1967. The description is as follows:

A certain tract of land situated in the Town of Woodbury, Connecticut containing fifteen (15) acres, more or less, with a dwelling house, guest cottage and all other improvements thereon and bounded and described as follows:

NORTHERLY by land formerly of W. J. Clark;

EASTERLY by land being retained by George G. Sturges;

SOUTHERLY by highway known as White Dear Rocks Road;

WESTERLY by land now or formerly of Edith L. Tanner.

The boundary line between the above premises and remaining land of George C. Sturges is marked by stakes which will be replaced by permanent boundary markers at the expense of the Grantor.

The above premises consist of a portion of the First Piece and all of the Second Piece (which is a three-acre piece) described in a deed from Ernest O. and Sarah C. Jacobs to George C. Sturges dated April 26, 1957 recorded in Vo. 85, page 375 of Woodbury Land Records.

Reference is made to an agreement between Edith L. Tanner and Ernest O. and Sarah C. Jacobs dated August 26, 1955 and recorded in Vol. 84, page 482 of said land records which establishes the location of the boundary line between the above premises and land of Edith L. Tanner.

Said premises are subject to the Planning Ordinances and regulations of the Town of Woodbury.

The Grantor reserves a right of way over and across the existing road on the above described premises running from White Deer Rocks Road in a general Northerly direction approximately 200 feet to a point where a fork in said road enters the remaining land of the Grantor. This right of way shall terminate in the event that said Grantor sells said adjoining premises.

"In the event that the Grantor is willing to sell his remaining land adjoining the above premises, the Grantees shall have the first right to purchase the same at the same price and on the same terms as the Grantor is willing to sell to a bona fide purchaser. The Grantees shall have a period of one week following notice from the Grantor within which to decide whether or not to exercise said option, and if they do not elect to exercise said option within said period this option shall cease and terminate. If they elect to exercise the option then the sale of said premises shall be closed and the purchase price paid within 60 days thereafter.

The court will comment further on the facts found by the court in its discussion and application of the law.

The case of Koennicke v. Maiorano, 43 Conn.App. 1, 682 A.2d 1046 (1996) is instructive for the court’s analysis on the boundary dispute claim. The Koennicke court held as follows:

All actions to determine record title of any interest in real property are governed by General Statutes § 47-31 The statute requires that the complaint in such an action describe the property in question, state the plaintiff’s claim, interest or title and the manner in which the plaintiff acquired the interest, title or claim, and it must also name the person or persons who may

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