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EDWARD SOCHA, JR. v. SCOTT BORDEAU (SC 17371)
Borden, Norcott, Katz, Palmer and Vertefeuille, Js. Argued April 11, 2005--officially released April 4, 2006

Jeffrey F. Buebendorf, with whom, on the brief, was Elizabeth Conway, for the appellant (defendant). Philip M. Block, for the appellee (plaintiff).

Opinion

PALMER, J. The defendant, Scott Bordeau, appeals1 from the judgment of the trial court rendered in favor of the plaintiff, Edward Socha, Jr. The plaintiff commenced this action, alleging that he owns certain subaqueous land in the town of Salem and that the defendant's use of that land to install and maintain a dock constitutes a trespass. On appeal, the defendant claims that the trial court, in granting the plaintiff's motion for summary judgment, improperly concluded that there was no genuine issue of material fact regarding the plaintiff's contention that he owns the subaqueous land in question. We agree with the defendant and, accordingly, reverse the judgment of the trial court. The record reveals the following relevant facts and procedural history. The plaintiff and the defendant own abutting parcels of property along the shores of Gardner Lake in the town of Salem.2 The parties share a common boundary along the west side of the plaintiff's property and the east side of the defendant's property. The southern boundaries of both parcels of property abut Gardner Lake. In 1999, the plaintiff brought an action against the defendant, claiming ownership of a certain portion of property located along the parties' shared property line. In particular, the plaintiff claimed that the parties' shared boundary line deflected in a westerly direction such that the plaintiff's parcel included a wedge-shaped piece of lakefront property that the defendant had occupied up until that time. For purposes of resolving the boundary dispute, the parties entered into a written agreement to submit two issues to binding arbitration, namely: (1) ``the actual location of the boundary between the plaintiff's and defendant's propert[ies] at their respective [east/west] boundary in the vicinity of the swamp adjacent to Gardner Lake''; and (2) ``the total extent of frontage on Gardner Lake owned by the defendant.'' The parties further stipulated that ``the claims of both parties shall be resolved completely and definitively'' by the arbitration. Following the submission of the issues for arbitration, the arbitrator determined that the defendant owned the wedge-shaped parcel of property at issue and that the defendant's southern property line ran along the edge of the shoreline. The parties incorporated the arbitrator's finding into a boundary line agreement, which both parties signed and, in November, 2000, submitted to the trial court in the form of a stipulated judgment.3 As part of the agreement, the plaintiff quitclaimed to the defendant all right, title and interest to the premises westerly and southwesterly of the agreed upon boundary line, and the defendant quitclaimed to the plaintiff all right, title and interest to the premises easterly and northeasterly of the agreed upon boundary line.

In May, 2001, the plaintiff brought the present action, alleging that he owns certain subaqueous land abutting the wedge-shaped parcel of property located at the defendant's southern property line. The plaintiff further alleged that the defendant had installed and maintained a dock on that subaqueous land, and that the defendant's installation and use of the dock4 constitutes a trespass. The plaintiff sought, inter alia, a permanent injunction prohibiting the defendant's use of that subaqueous land.5 The defendant did not contest the plaintiff's allegation regarding his installation and maintenance of the dock, nor did the defendant claim that he owns the portion of the lake bottom on which the dock rests. He maintained, rather, that the plaintiff never had established that the plaintiff owns that subaqueous land, and that, in the absence of such proof, the defendant's use of that land cannot constitute a trespass against the plaintiff. The plaintiff filed a motion for summary judgment, alleging that there was no genuine issue of material fact with respect to his claim because the arbitration decision and the parties' boundary line agreement definitively established that the plaintiff owned the subaqueous land in question. In support of his motion, the plaintiff submitted, inter alia, the agreement of the parties to submit their boundary line dispute to binding arbitration, the arbitrator's report and the boundary line agreement. The plaintiff also submitted the deed to his property, which describes that property as ``continuing [s]outhwesterly into [Gardner] Lake and following the line of [the] old ditch which is now under water about 350 feet to the point where the old ditch met the shore of the `Great Pond' as it was in 1805 . . . .''6 (Emphasis added.) The defendant claimed, inter alia, that the materials submitted by the plaintiff failed to demonstrate that the plaintiff owns the subaqueous land at issue. In support of his contention, the defendant filed with the court a map of Gardner Lake entitled, ``Plan Made for State of Connecticut Department of Agriculture and Natural Resources Showing Gardner Lake in the Towns of Bozrah, Montville [and] Salem,'' that contained the following notation: ``Lake Bottom Owned by Socha in Bozrah Is 36.7+/- Acr[es] Other Lake Bottom Is As [Follows] Bozrah 53.4+/- Acres [and] Montville 148.9+/Acr[es] [and] Salem 287.1+/- Acres . . . .'' (Emphasis added.) The trial court granted the plaintiff's motion for summary judgment. In its memorandum of decision, the court concluded that the plaintiff owns the subaqueous land abutting the wedge-shaped portion of the defendant's property and that the defendant's use of that land for the purpose of installing and maintaining a dock constituted a trespass. In support of its conclusion, the trial court relied on (1) the language of the plaintiff's

deed, which describes the plaintiff's property as continuing into the lake and following the land into an area that now is underwater, and (2) the prior arbitration between the parties. With respect to the latter, the trial court stated that, although ``the arbitrator was not asked to determine the extent of the lake bottom owned by each of the parties,'' the plaintiff's ``ownership of the lake bottom was never in dispute and the defendant has made no claim of ownership of the lake bottom.'' The trial court thereafter issued a permanent injunction, ordering the defendant ``to remove all existing structures which are sited, anchored [or] otherwise attached to the lands of the plaintiff . . . on or before [May 1, 2004], and to thereafter refrain from trespassing on said lands by any structure, vessel or thing.'' In addition, the court awarded the plaintiff $44,151 in damages, costs and attorney's fees. On appeal, the defendant claims that the trial court improperly granted the plaintiff's motion for summary judgment because the documentary evidence that the plaintiff had submitted in support of his motion failed to establish that he owns the subaqueous land at issue. The defendant further claims that the trial court improperly awarded damages, costs and attorney's fees to the plaintiff because, inter alia, the court failed to afford the defendant the opportunity to challenge the factual basis of the award. We agree with the defendant that the trial court improperly granted the plaintiff's motion for summary judgment on the merits. Consequently, we do not reach the defendant's claim regarding the propriety of the court's award of damages, costs and attorney's fees to the plaintiff. We begin our analysis by setting forth the legal principles that govern our review. Practice Book

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