Boundary and Land Use Legal Toolkit: Adverse Possession, Quiet Title Actions and More

By: Mark S. Shipman, Esq.

  1. Adverse Possession vs. Prescriptive Easement vs. Acquisition.

            Acquiescence and Adverse Possession are really the opposites of each other.  A boundary acquiesced in for fifteen years cannot be restored.  Perry v. Pratt, 1863 WL 783, at *1.   “Acquiescence in the use and development of an area by a landowner is defined as a consent to the boundary as claimed by an adjoining owner and can estop the acquiescing landowner from pursuing a claim of ownership. The acquiescence must occur under circumstances that indicate an assent to such a use.”   Marshall v. Soffer, 58 Conn. App. 737, 744 (2000).  Assent may be reasonably inferred and is as irrevocable as if expressly stated in words.  DelBuono v. Brown Boat Works, Inc., 45 Conn. App. 524, 533 (1997), cert. denied; Lowendes v. Wicks, 36 A. 1072, 1079 (Conn. 1897).   “Assent is a necessary inference from acquiescence, and estoppel was the necessary consequence of assent.”  Id. at 1079.  

            There is a  “hostility” requirement for adverse possession.  As opposed to acquiescence, a claimant’s possession of the disputed land, from its inception, must be without consent or permission, and must continue to be so throughout a 15-year period. Bennett v. Bowditch 163 Conn.App. 750 (2016).  “[T]o establish title by adverse possession, the claimant 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 own and without the consent of the owner…. A finding of adverse possession is to be made out by clear and positive proof…. The burden of proof is on the party claiming adverse Possession…. ”.  Caminis v. Troy, 300 Conn. 297, 311 (2011); quoting Woodhouse v. McKee 90 Conn. App. 662, 669, (2005). However, title to realty held in fee by a state or any of its subdivisions for a public use cannot be acquired by adverse possession.  Matto v. Dan Beard, Inc., 15 Conn. App. 458, 476 (1988).

            There are circumstances where a use starts out as permissive and is later is alleged to have become hostile, for adverse possession purposes.  In those cases, it must be shown that the claimant, at some time, clearly repudiated the permission by some clear, positive, and unequivocal act; otherwise, such use will continue to be presumed permissive. Rudder v. Mamanasco Lake Park Association, Inc. 93 Conn.App. 759 (2006).  It is necessary to prove  open and notorious use to ensure that there is no secret or hidden use that is suddenly sprung on the record-title owner, by surprise, as a basis for a claim of adverse possession.  Zhang v. 56 Locust Rd., LLC, No. FSTCV126015791S, 2016 WL 624045, at *5, aff’d sub nom. Sanle Zhang v. 56 Locust Rd., LLC, 177 Conn. App. 420 (2017).  The claimant must establish all of the elements of the claim by clear and convincing evidence.

            Easement rights, just as ownership rights, may be acquired by hostile use.  The requirements are the same as for adverse possession.   There must be a use which is open, visible, continuous and uninterrupted for fifteen years and made under a claim of right.; Andrzejczyk v. Advo System, Inc., 146 Conn. 428, 431 ( 1959).

            .  The Marketable Title Act, C.G.S. § 47-33b et seq. can extinguish an interest or an easement. It requires a renewal of an encumbrance within forty years after a conveyance of the title to the subject property, the “Root of Title” C.G.S. § 47-33c.  This is most significant in the case of easements.  To continue or revive the interest, either a subsequent transfer must specifically identify the interest C.G.S. § 47-33d; or a notice, in proper form, is recorded during the forty year period. C.G.S. § 47-33f.  Among the exceptions to the erasure of an interest is where an easement which is evidenced by something physical or observable.  C.G.S. § 47-33h.  Interestingly, the physical evidence need not be observable.  C.G.S. § 47-33h.

            See an interesting case where it was held that the usual defenses could not be used by Indians trying to reclaim land.  Schaghticoke Tribe of Indians v. Kent School Corp., Inc., 423 F.Supp. 780, D.C.Conn.1976,

            The situations and cases that have arisen in this area are almost always fact determined.  The law is clear, the facts are not always so.  Suffice it to say, that in boundary disputes, adverse possession is frequently the defense used in the resultant litigation.


  1. Adverse Possession Claims: Establishing Key Elements.

            The key elements which need to established in claims of adverse possession and prescriptive easement are set forth in Section A, supra. The burden of proof is on the party claiming adverse possession.  Lisiewski v. Seidel,  95 Conn.App. 696 (2006).  Adverse possession claims typically present questions of fact and are proved in the same manner as other claims.  However, even where the facts with regard thereto are admitted, or undisputed and susceptible of but one reasonable conclusion, whether adverse possession has been proven becomes a question of law for the court.  Durkin Village Plainville, LLC v. Cunningham,  97 Conn.App. 640 (2006). Therefore, it is essential to put on, at least, a prima facie case to withstand an appeal.

            It is generally accepted that in order to establish the fifteen year holding period, a claimant may “tack” onto a predecessor in title’s use.  However, the person claiming the benefit of tacking must establish that the predecessor’s use was adverse.  Adverse claimants who assert  that their title by adverse possession accrued as a result of tacking their predecessors’ possession, have burden of proving predecessors’ adverse interest, Marquis v. Drost, 155 Conn. 327 (1967).

            Establishing the holding period requires more than an allegation.  In practice, it may require more than the testimony of the claimant.  It is appropriate to put on evidence from neighbors, “old timers’ surveyors (see infra) and prior owners.  It may sometimes be appropriate to obtain evidence from the one being disposessed.  However, I would do it first by deposition.

            Proving the claim is no different in adverse possession or prescriptive easement cases than it is in any other matter.  You know the elements and have the burden of proof as to all of them. 


  1. Applying Defenses To Adverse Possession Claims.

            Litigation Defenses to claims of adverse possession and prescriptive easements, usually include affirmative defenses of laches, limitations, adverse possession, Connecticut’s marketable title statute (easements), and waiver and estoppel. Zhang, supra at 4.  This paper will not go into detail as to proof of the various defenses.  They are common and in most cases need to be specially pleaded.  Suffice it to say that in addition to those defenses which must be separately pleaded, much of the defense to an adverse Possession or prescriptive easement is by general denial.

            Since the plaintiff in an Adverse Possession claim has the burden of proof as to each element of the claim, a defendant would be wise to concentrate the defenses where they are most likely to be effective.  For instance, where it seems clear that plaintiff’s possession was uninterrupted for 15 years, it might be more advantageous to attack whether it was, in fact open and notorious. Was the use so obvious that it couldn’t be missed?  Were there fences erected or other visual delineations of the claim?  Was the occupation so obvious as to charge the defendant with knowledge?

            Similarly, there may be ways to attack the allegation that the occupation was done as a claim of right.  How did the plaintiff come into possession?  Was the occupation exclusive or did the occupier share the claimed property with the defendant in some manner.  These are evidentiary issues that can, mostly, be raised under a general denial.  The shared occupancy could also be raised as waiver and be specially pleaded.

            The decision for the trier is whether to use a shotgun approach and attack everything, or a more finely directed approach. 


  1. Resolving Neighbor Boundary Disputes: Trees, Fences, Noise And More. 

            Robert Frost once said that “good fences do good neighbors make”.  It is most often true.  However, when the fence purports to describe a boundary and it’s in the wrong place, things are often not so neighborly.  Fences are among a variety of ways that have been used to delineate the division between adjoining properties.  Sometimes they are used as the boundary line and described as such.  Other times they are placed subsequently to the division of property, to serve as a visual, if not a legal divider.  There are other ways to define the confines of particular properties.  Boundaries are often mapped.  They are described by metes and bounds.  They are fixed by reference to markers or points.  All of these methods are believed to be effective.  Many times, they conflict.

            A boundary is defined as:  “Every separation, natural or artificial, which marks the confines or line of division of two contiguous properties.  Limits or marks of enclosures if possession be without title, or the boundaries or limits stated in title deed if possession be under a title.”  Black’s Law Dictionary, Fifth Edition.   Boundaries may be natural, such as rocks, trees and rivers.  They can be artificial, such as iron pins, merestones, monuments or fences. 

            Today, it is the norm for purchasers and lenders to require surveys.  Title Companies will not insure boundaries without a survey.  The computer and other scientific advances have made surveying a more exacting science.  Unfortunately, the incidence of boundary line errors and disputes has not abated with the advent of better science.  When the issue over ownership is joined, it is often determined by resort to criteria other than surveys.

            Boundary disputes arise out of many situations.  A non-exclusive list includes:  a survey for a new purchase discloses encroachment by an abutter; the erection of a fence or the placement of a hedge causes a neighbor to reexamine the boundaries; the abandonment of an old road raises issues of ownership under the road; and a zoning application alerts neighbors to property line issues.  These disputes can be resolved in a number of ways.  The first thing is to identify the problem.  What may appear to be an issue may not be.  If you think there is an encroachment, get a survey.  Review the title report or policy to see what it says about easements and rights of way.  Read the conflicting descriptions in light of the survey and title reports. If it is determined that there is a problem, there are evaluations which must be made to determine how to rectify the problem. Boundary line agreements can be negotiated.  Areas can be deeded.  Quiet Title actions can be used to establish the lines.  In any situation, there are guides for the resolution of the issues.

            Deed Descriptions.

            It is, generally, held that where a deed description is clear and unambiguous, it will be given effect.  In such a case, it is unnecessary to look to the intent of the parties to a conveyance.  McCullough v. Waterfront Park Association, Inc., 32 Conn. App. 746 (1993).  However, there are often two competing unambiguous descriptions.  When that occurs, a pecking order of criteria has developed, almost like the game rock, paper scissors.  However, where the calls for the boundaries are inconsistent, generally the order of review is (a) to natural objects or landmarks; (b) to artificial monuments (both natural and artificial monuments are referred to as fixed monuments); (c) to adjacent boundaries; and (d) courses and distances.  12 Am. Jur. 2d Boundaries § 61.  However, where it is obvious that there has been a mistake, sometimes an inferior call will prevail over a superior one.  12 Am. Jur. 2d Boundaries § 72In such cases, course and distance will prevail over volume.  12 Am. Jur. 2d Boundaries § 73.

            Fixed Monuments.

            Connecticut follows these general rules although there is less distinction between natural and artificial monuments. For the purpose of describing land, monuments are defined as physical objects which are permanent.  They may be natural or artificial and even if they have disappeared may still be utilized if their former location can be ascertained through extrinsic evidence. “ Koennicke v. Maiorano, 43 Conn. App. 1, 10, (1996). A monument, when used in describing land, is “any physical object on the ground which helps to establish the location of the line called for,” whether it be natural or artificial., Koennicke supra11-12, citing Delphey v. Savage, 227 Md. 373, 374-75, 177 A.2d 249 (1962).   “It is well settled as a rule of the construction of deeds that ‘[w]here the boundaries of land are described by known and fixed monuments which are definite and certain, the monuments will prevail over courses and distances.’“ Koennicke v. Maiorano, 43 Conn. App. 1, 10, (1996) (quoting Frank Towers Corp. v. Laviana, 140 Conn. 45, (1953)); Velsmid v. Nelson, 175 Conn. 221, 227, 397 A.2d 113 (1978); Russo v. Corideo, 102 Conn. 663, 672, (1925)

          “The monuments which control courses and distances are those to which the conveyance itself refers. A reference to the adjoining land of the grantor as a boundary cannot be treated as describing a monument intended to control the dimensions stated because of the existence of a fence, which is not mentioned in the deed.” Kashman v. Parsons, 181 (Conn. 1898).  In Delphey, the court noted that, as in contracts or wills, the intention of the parties governs the interpretation of deeds and that is why “monuments named in deeds are given precedence over courses and distances, because the parties can see the tree, stone, stake, pipe or whatever it may be, which is referred to in the deed, but would require equipment and expect assistance to find a course and distance.”

            Adjacent Boundaries.

            As a general rule, the boundary of an adjacent property may be considered a monument.  Koennicke v. Maiorano, 43 Conn. App. 1 (1996).  However, that boundary must itself be fixed and definite. Marshall v. Soffer, 58 Conn. App. 737 (2000); Wallingford Rod & Gun Club, Inc. v. Nearing, 19 Conn. Sup. 414.  Issues arise where both sides of the contested boundary purport to be established by monument or rely on courses and distances established by survey.  It is, then, necessary to determine which deed and related courses control.  In those cases, it is important to determine the first deed in the chain.  The first conveyance between two parties of a particular parcel of land that is recorded governs over later conveyances.  Conn. Gen. Stat. § 47-10; Law v. Sullivan, No. CV0300897145, 2003 WL 21235430, at *1 (Conn. Super. Ct. May 19, 2003); See Wheeler v. Young, 55 A. 670, 672 (Conn. 1903). 

            Therefore, if there has been a subdivision of property, and two of the subdivided lots are disputing a boundary, it is necessary to establish the boundaries of all of the lots, from the description of the first lot.  That first lot will, generally front a street for a specific distance.  The other three lines will be the initial basis for the adjacent lots and subsequently, to those lots that adjoin those and each other.  This rule is consistent with Connecticut’s recording statute,  Conn. Gen. Stat. § 47-10, which puts all on notice of what is stated in recorded documents; and sets priorities based on the time of recording.  “Under our recording system a deed duly recorded is constructive notice to all the world; and the law conclusively presumes that every person interested has knowledge, not only of the deed, but of its precise language.”   Beach v. Osborne, 50 A. 1019, 1021 (Conn. 1902) (quoting Hamilton v. Nutt, 1868 WL 922 (Conn. Feb. Term 1868); See Law, 2003 WL 21235430, at *6;

            Manners of Resolution.

            There are a number of obvious ways to resolve disputes.  The parties can get together and hire a surveyor, agreeing to accept his findingsIf they can’t agree to accept the surveyor’s findings, they may still agree to the survey.  However, that survey may end up as evidence in a subsequent proceeding.  If the parties are able to agree on a boundary, they may draft and record a boundary line agreement. For recording in the land records.  Care should be taken to try to have the clerk, marginally, note the volume and page on the original deeds.  In today’s computerized environment, it isn’t always possible.  Make sure, however, that it is properly indexed in the chain of title of each property.  If there are mortgages on the property, the mortgagees will need to consent.  They have the conditional legal title to the parcels.  Any marginal notes should be placed on the mortgages also.

            Where the parties are unable to agree, a quiet title action is the proper way to enlist the courts’ aid. 


  1. Using Surveyors To Resolve Boundary Disputes.

            The common belief is that surveys are dispositive of the areas that they describe. However, there are often differences between surveys of the same and adjoining parcels.  When a deed references a map for recourse to a more particular description therein, the map becomes a part of the deed and is incorporated by reference therein. C.G.S. § 7-31; Schwartz v. Murphy, 74 Conn. App. 286 (2002).  When the map is not referenced in the deed the issue of whether or not to accept the conclusions therein is a question of fact for the court. Simmons v. Addis, 141 Conn. 738 (1954).  Where the conflicting deed descriptions are indefinite, then a map will control. Mastronardi v. Infante, 34 Conn. App. 584 (1994)              Issues arising between conflicting surveys are generally subject to the same rules as are conflicting deed descriptions.  First, are permanent and ascertainable monuments, then lines and angles.  12 Am. Jur. Boundaries § 61, citing Newfound Management Corp. v. Sewer (DC VI) 885 F. Supp. 727.  Where the calls are inconsistent, you start with marked corners, then natural objects, adjoining property and courses and distances.  12 Am. Jur. Boundaries § 61, citing Powell v. Reid, (KY) 519 SW2d 388.              This is why it is important to use the first deed in a subdivision, or a parcel whose description starts at a corner or a referenced distance to a monument.  When reviewing surveys with deeds, you will sometimes find that the surveyor has used fixed monuments that are not referenced in the deeds.  It is the monuments contained in the deeds that are controlling.   This is more likely to happen in surveys of large parcels in rural areas where there has not bee a lot of development            It should be noted, when dealing with surveys which are not referenced in the deeds, while not dispositive, they may be admissible to show what they claim, but the weight to be given them is for the court to decide.            Remember, the Marketable Title Act, C.G.S. § 47-33b et seq. can extinguish an interest or an easement. This is significant in the case of easements.  Among the exceptions to the erasure of an interest is where an easement which is evidenced by something physical or observable.  C.G.S. § 47-33h.  The survey can discover those observable “somethings”.Generally, a surveyor will look at old maps and will likely be able to find physical evidence of a buried monument, conduit etc.  All the more reason to have a survey done.            It is still advantageous to use surveys and surveyors to resolve Boundary Disputes.  If the parties can agree on a new survey and surveyor; and agree to accept the results, it will end the dispute.                          Where the parties are unable to agree, a quiet title action is the proper way to enlist the courts’ aid.   F.     Drafting Boundary Agreements And Exchanging Deeds.There are three (3) ways to handle boundary line disputes.  The first is to make an oral agreement.  I do not recommend it.  No one other than the parties knows what was done.  Even if the current neighbors agree, it is not going to bind successors in title.  If a new owner has a survey done, it will likely differ from the agreement.  The buyer’s title company will want a resolution of the discrepancy, usually the placement of a fence or row of bushes.  It may also be an encroachment that the two (2) neighbors had permitted to continue (see discussion of acquiescence, supra).  An oral agreement is an invitation to a quiet title action.

            The second option is to exchange quit claim deeds.  If you have a mortgage on the property, consult a local attorney for help in drawing up the deeds. Whoever holds the mortgage may need to be notified and permission obtained before you transfer even a tiny piece of the land. Some mortgage companies will not be concerned or want to be involved. But others put a clause in the mortgage that allows the company to demand full and immediate payment of the entire loan if the borrower transfers any interest whatsoever in the property.  A quit claim deed is a very good way to resolve the problem.  It will require a survey or, at least, identifiable markers from which a description may be drawn.  I do not recommend the latter option.  However, if there is no mortgage or the mortgagee does not object, the quit claim deed is a good way to establish the new lines. 

            The third option for resolving the boundary dispute, is a Boundary Line Agreement.  Once this agreement is made and certain conditions are met, the line is the permanent legal boundary. It is binding not only on those neighbors but also on later buyers.  This approach may not be as simple as exchanging deeds but if both neighbors genuinely agree, it is easy, inexpensive and establishes a definite boundary line. Done properly, it resolves the issue in perpetuity; does not change the ownership of land; and clarifies ambiguous descriptions in the deeds or surveys.

            Boundary Line Agreements are anecdotal. The reasons are specific to the two (2) properties.  However, there are certain things that should always be stated, usually in the Whereas clauses or the preamble.  For instance, the agreement should set forth the properties which are owned by the neighbors; state the reason why the agreement is necessary (i.e. conflicting surveys, conflicting deeds or an encroachment); that there is a genuine uncertainty as to the location of the boundary; that the parties have agreed to a the survey which should be recorded in the land records and referenced; that the survey is an accurate and agreed upon description of the boundary between the parties.

            The boundary itself, must be able to be identified on the ground.  The line should be clearly marked.  The markings should be permanent.  Stakes can disappear.  Flags are insufficient.  Iron pins, properly set, can be effective.  Concrete markers are also good evidence.  Both the pins and the concrete markers can get overgrown.  However, if  properly identified in the referenced survey, they should be able to be found.

            I always suggest that the owners act in accordance with the agreement.  By that I mean honor the agreement in practice.  The offending encroachment, if no longer consistent with the agreement, must be removed.  Shrubs that have moved now from one property to the other should be clearly shown to have moved or they should be removed.

            These are the necessary items.  The agreement itself, is drafted as is any agreement.  It just needs to satisfy the necessary requirements. Finally, you need to verify that the agreement appears in both chains of title.


  1. Handling Quiet Title Actions. 

            Quiet Title Actions are controlled by the provisions of C.G.S. § 47-31.  It is a lengthy section and I will not copy it here.  It is clear and concise.  It sets forth who may bring the action; what interests can be asserted; and what should be in the complaint.  While the courts have held that the requirements of the statute are mandatory, recent cases have, somewhat, ameliorated the requirement of rigid compliance (see Fountain Pointe, LLC v. Calpitano, 144 Conn. App. 624, 647–48 (2013) and Thurlow v. Hulten, 130 Conn.App. 1, 10, cert. denied, 302 Conn. 925) (2011)).  However, it is essential that the complaint set forth an interest sufficient to make the claim, LaFlamme v. Dallessio, 261 Conn. 247, 251 (2002) (Executor did not have sufficient title as title is in heirs).

            It is important to note that we are a title theory state, meaning that a mortgagee has legal title to the mortgaged property, subject to defeasance. In the event of mortgaged property, the mortgagee has sufficient title to support a claim, as does the owner of the equity of redemption Castro v. Mortgage Lenders Network USA, Inc., 158 Conn. App. 371, 376 (2015).  There are dozens of cases indicating what interests or pleadings that courts have found sufficient.  Many are collected under the annotated statute.

            The burden of proof, as with all claims, is on the party seeking the relief.  In a quiet title action, the plaintiff must prevail on the strength of its own title and cannot rely on the weakness of the defendant’s title, Mt. Maumee Partnership v. Peet, 40 Conn.App. 752, (1996) certification denied  237 Conn. 924;  Marquis v. Drost, 155 Conn. 327 (1967).

            All of the defenses, ordinarily, available to defendants are available in quiet title actions.  For example, you can plead estoppel, title in a third party, failure to name a necessary party etc. It is interesting to note, that you may be able to claim a jury, depending on the relief sought (see Standard Co. v. Young, 90 Conn. 133 (1916) and Miles v. Strong, 68 Conn. 273, 286, (1896).

            When bringing a quiet title action, many attorneys also add a count seeking a Declaratory Judgment requesting the same relief.  It is not necessary and may require different proof but is kind of belt and suspenders.