KOENNICKE v. MAIORANO

14167

43 Conn. App. 1 (1996) | Cited 0 times | Connecticut Appellate Court | September 10, 1996

The plaintiff, W. William Koennicke, instituted thisaction in a complaint in four counts against the defendant, Curt A.Maiorano, seeking to quiet title to a disputed portion of land that runsalong the boundary between his property and that of the defendant in thetown of Hampton. Generally speaking, their properties adjoin each other.The plaintiff also seeks damages for the cutting of trees and for trespassand title by adverse possession.1

The first count, which seeks to quiet title, alleges that thedefendant claims an estate or interest by deed in "an undefined portion" ofthe land of the plaintiff on which the defendant has knowingly enteredwithout the plaintiff's permission, has cut down trees without permission,has caused earth moving equipment to be brought in, has caused disturbanceto the earth thereon, has removed signs prohibiting trespass on theplaintiff's land and has stored cut wood on that land. The second countincorporates a number of the same allegations and further alleges that thedefendant's actions constitute a cutting of trees on the land of another inviolation of General Statutes § 52-560.2 The third count

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     incorporates the same allegations as the second count and sets out twoadditional allegations. They are that, on diverse dates, the plaintiff orhis agents personally communicated to the defendant orders not to enter theplaintiff's property or to leave that property and that the defendant'sconduct constituted criminal trespass in violation of General Statutes §53a-107.3

The case was referred to an attorney trial referee who heard theevidence4 and submitted her report comprising her findings of factand conclusions of law. At the same time, she also filed her memorandum ofdecision,5 which included case law citations as well as herrecommendations for judgment. In it, she found the issues for theplaintiff on the first, second and third counts and recommended judgmentfor the plaintiff on those three counts, and she found the issues for thedefendant on the fourth count and recommended judgment for the defendant onthat count. The defendant objected6 to the acceptance of the report

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     of the attorney trial referee. The trial court overruled the objections ofthe defendant and adopted the referee's memorandum of decision except forthe award of common law punitive damages in the third count. It renderedjudgment in favor of the plaintiff on the first count, establishing titleto the disputed premises by deed; for the plaintiff on the second count for$12,000; and for the plaintiff on the third count, to the effect that atrespass had been committed by the defendant. This appeal followed. Theplaintiff cross appealed on matters involving damages, which we considerlater in this opinion.

On this appeal, the defendant claims that the trial court improperlyconcluded (1) that, as a matter of law, the division line between theproperties of the plaintiff and defendant was a stone wall, (2) that, as amatter of fact, a stone wall constituted the boundary line between the twoproperties involved when that finding was not supported by the evidence,(3) that the defendant removed stones that the plaintiff had placed to markthe boundary line between them when inconsistently finding that the stonewall was the boundary between the parties, (4) that, as a matter of law,the defendant wrongfully cut trees on the land of the plaintiff inviolation of § 52-560 and (5) that the defendant committed a criminaltrespass in violation of General Statutes § 53a-107. We discuss the firstthree claims together and the fourth and fifth together. We affirm thejudgment of the trial court except as to the third count of the complaint.

The plaintiff filed a cross appeal in which he claims that the trialcourt improperly refused to award heightened damages, refused to award

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     attorney's fees based on its own knowledge of the complexity of theproceedings before it and failed to order a separate hearing regardingattorney's fees if the award of heightened damages was properly rejected.The issues of the cross appeal are interrelated, and relate closely to theresolution of the appeal itself.

The report of the attorney trial referee discloses that she found,inter alia, the following facts and made certain conclusions of law. Theplaintiff7 and the defendant8 own adjoining parcels of

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     land in the town of Hampton formerly owned by the defendant's mother,Elizabeth Koennicke Maiorano (Elizabeth). The plaintiff is Elizabeth'sbrother. Elizabeth had obtained title to the entire property in 1943 by awarranty deed from Richard Koennicke. That warranty deed included therecital that the entire property "contains about two hundred and twentyfive acres, be the same more or less." Thereafter, in 1953, because shewas unable to repay Richard Koennicke fully for the property, Elizabethreconveyed the south portion of it to him in satisfaction of that debt.The warranty deed reconveying this portion to her grantor, RichardKoennicke, included the recital "roughly estimated as containing 115 acresof land, be it the same, more or less." The attorney trial referee foundthat the statement of acreage in this deed was merely a matter ofdescription and was not intended to assure a particular quantity of land.In addition, the 1953 warranty deed described the lands reconveyed toRichard Koennicke by reference to stone walls and adjoining propertyowners. The division line between the properties was a stone wall dividingtwo fields. The larger field lay to the north of the stone wall and wasretained by Elizabeth.

The plaintiff acquired title to the land owned by Richard Koennicke bya warranty deed dated February 6, 1960. That deed repeated the descriptionthat was set out in the 1953 warranty deed from Elizabeth to RichardKoennicke.

The defendant acquired his present interest in this parcel, which wasthe balance of the land retained by Elizabeth, after her 1953 deed toRichard Koennicke, by virtue of a November 13, 1963 quitclaim deed fromElizabeth to herself and the defendant with rights of survivorship. The

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     description set out in the 1963 quitclaim deed was essentially the originaldescription used in the 1953 warranty deed from Richard Koennicke toElizabeth, including the "containing 225 acres more or less" language.This 1963 quit claim deed contained the following recital: "Excepting andexcluding from the above a parcel conveyed by [Elizabeth] to RichardKoennicke by Warranty Deed, dated May 13, 1953 . . . and which parcelcontains 115 acres, more or less."

The disputed area that is the subject of this action is a strip ofapproximately 300 feet extending from the stone wall south and includes thesmaller of the two fields. The description in the1953 warranty deed from Elizabeth to Richard Koennicke is ambiguous becauseof the fact that it contains some references9 to monuments that nolonger exist. The attorney trial referee found that it was the intentionof Elizabeth to convey, by that 1953 deed, all the land to the south of thestone wall between the two fields to Richard Koennicke. Prior to the 1953deed to her uncle, Richard Koennicke, Elizabeth had identified the stonewall between the fields as the boundary to Kurt A. Koennicke, her brother,and she had indicated to him that if he did not buy it, she was going toreconvey it to Richard Koennicke to satisfy her debt to him. Prior to hispurchase of his parcel from Richard Koennicke, the plaintiff walked theboundary line with Richard, who indicated that he was conveying to theplaintiff the land to the south of the stone walls dividing the two fields.After the plaintiff's purchase of this land, Elizabeth, when conferringwith the plaintiff to issue deer permits and again when the plaintiffallowed a neighboring farmer to plant the field, acknowledged the stonewall dividing the larger field and smaller field as the boundary linebetween her property and that of the plaintiff. Since acquiring title, theplaintiff has planted rye in the smaller field to the south of the stone

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     wall and has also cut wood to the south of the stone wall. Elizabeth didnot utilize the land south of the stone wall after its purchase by theplaintiff, digging test pits only on the north portion in search of gravelto sell. There were no disputes between the plaintiff and Elizabeth or thedefendant prior to Elizabeth's death.

The dispute concerning the location of the boundary line did not startuntil approximately 1985, when the defendant moved to the farm on hisproperty. In approximately 1979, the plaintiff had loaned the defendant$7500, which was not repaid. The plaintiff, in 1986 or 1987, asked thedefendant to repay that $7500 loan. The disputes over the plaintiff'sownership coincided with these requests for repayment.

In June, 1980, the defendant entered into a contract with the Rossicorporation to log his land, which was estimated at that time to be 100acres. The contract called for logging only to the north of the stone wallbetween the fields. At the time of his contract with Rossi, the defendantplaced his land in forestry classification, referencing his total acreageas 100 acres. In addition, he has paid taxes on 100 acres at least sincethat time. With the stone wall between the two fields as the boundary, thedefendant's land is about 100 acres.

The defendant began entering the disputed portion, that is the landsouth of the stone wall, to cut trees and to store junk vehicles in 1986 or1987. Sometime within the last five years, the defendant made a road fromthe small field to a pond on the plaintiff's property. The defendantremoved stones that the plaintiff placed to mark the boundary line. SinceNovember 15,1988, the defendant has cut approximately 100 trees, oak, maple and poplar.The value of these 100 trees is $4000. The defendant threatened to assaultthe plaintiff when encountering him in the disputed area. The defendant

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     was aware that the plaintiff was claiming the disputed area as his since1963 and took no action to dispute that claim.

The boundary line between the property of the plaintiff and thedefendant is the dashed line depicted by Stephen A. Filip10 on hisboundary survey, which is in evidence as plaintiff's exhibit G.

I

We first address the defendant's claims that the trial courtimproperly adopted the attorney trial referee's finding that the stone wallwas the boundary between the two properties at issue and that its findingsin doing so were inconsistent. Certain applicable principles, that will besupplemented as occasion requires, are appropriately set out at this point.All actions to determine record title of any interest in real property aregoverned by General Statutes § 47-31. DeVita v. Esposito,13 Conn. App. 101, 104, 535 A.2d 364 (1987), cert. denied, 207 Conn. 807,540 A.2d 375 (1995). The statute requires that the complaint in such anaction describe the property in question, state the plaintiff's claim,interest or title and the manner in which the plaintiff acquired theinterest, title or claim, and it must also name the person or persons whomay claim the adverse interest or estate. General Statutes § 47-31.The burden of proof in this case is on the plaintiff to prove that theboundary is where he claims it to be. Steinman v. Maier, 179 Conn. 574,575, 427 A.2d 828 (1980); Simmons v. Addis, 141 Conn. 738, 741,110 A.2d 457 (1954). The plaintiff is required to prevail on thestrength of his title and not on the weakness of his adversary'sclaim. Velsmid v. Nelson, 175 Conn. 221, 229,397 A.2d 113 (1978); Lake Garda Improvement Assn. v.

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     Battistoni, 155 Conn. 287, 293, 231 A.2d 276 (1967); Burke v.Ruggerio, 24 Conn. App. 700, 704, 591 A.2d 453, cert. denied,220 Conn. 903, 593 A.2d 967 (1991).

"In determining a boundary line in a deed, the law is clear that thedescription in the deed, if clear and unambiguous, must be given effect.In such a case, there is no room for construction. The inquiry is not theintent of the parties but the intent which is expressed in the deed. LakeGarda Improvement Assn. v. Battistoni, 160 Conn. 503, 511, 280 A.2d 877[1968]; Faiola v. Faiola, 156 Conn. 12, 17, 238 A.2d 405 [1966]; Katsoff v.Lucertini, 141 Conn. 74, 77, 103 A.2d 812 [1954]; Patzloff v. Kasperovich,116 Conn. 440, 441-42, 165 A. 349 [1933]; Botsford v. Wallace, 69 Conn. 263,271, 37 A. 902 [1899]. Where the deed is ambiguous, however, theintention of the parties is a decisive question of fact. Lake GardaImprovement Assn. v. Battistoni, supra; Staff v. Hawkins, 135 Conn. 316,319, 64 A.2d 176 [1949];Gioia v. Annunziata, 102 Conn. 52, 56, 127 A. 921 [1925]; Raymond v. Nash,57 Conn. 447, 452, 18 A. 714 [1889]." F. & AK., Inc. v. Sleeper,161 Conn. 505, 510, 289 A.2d 905 (1971); see Apostles of the Sacred Heartv. Curott, 187 Conn. 591, 595, 448 A.2d 157 (1982); Faiola v. Faiola,supra, 18. In ascertaining the intention of the parties, it was proper forthe trial to consider the surrounding circumstances. Staff v. Hawkins,supra; Connecticut Light & Power Co. v. Fleetwood, 124 Conn. 386, 389,200 A. 334 (1938).

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 monumentswhich are definite and certain, the monuments will prevail over courses anddistances." Frank Towers Corp. v. Laviana, 140 Conn. 45, 50, 97 A.2d 567(1953); Velsmid v. Nelson, 175 Conn. 221, 227, 397 A.2d 113 (1978); Russov. Corideo, 102 Conn. 663, 672, 129 A. 849 (1925). The general rule is thatthe designated quantity of land called for, here acreage, is the least

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     reliable aspect of the description in determining the intent by theparties. See J. Backman & D. Thomas, A Practical Guide to Disputes BetweenAdjoining Landowners — Easements (1990) § 8.02; 12 Am. Jur.2d Boundaries§ 75; Erickson v. Wick, 22 Wash. App. 433, 591 P.2d 804 (1979); TexasEastern Transmission Co. v. McCrate, 76 Ill. App.3d 828, 395 N.E.2d 624(1979). The land of an adjoining owner whose boundaries can be fixed byknown monuments is also considered to be a monument to establish aboundary. Frank Towers Corp. v. Laviana, supra, 51.

A "monument," when used in describing land, has been defined as "anyphysical object on the ground which helps to establish the location of theline called for and the term `monument,' when used with reference toboundaries, indicates a permanent object which may be either a natural orartificial one. . . . Natural monuments include such natural objects asmountains, streams, rivers, creeks, springs, trees . . . . Artificialobjects and monuments consist of marked lines, stakes, rocks, fences,buildings and similar matters marked or placed on the ground by the hand ofman." 12 Am. Jur.2d Boundaries, § 4, p. 549; 4 Tiffany, Real Property (3dEd. 1975) § 993, p. 193; 3 American Law of Property, (Casner Ed. 1952) §12.105; see Delphey v. Savage, 227 Md. 373, 374-75, 177 A.2d 249 (1962). Ithas been said that "a stone wall is strong evidence of a boundary line.Roberti v. Atwater, 43 Conn. 540, 546 [1876]"; Pendleton v. MacDonald,Highway Commissioner, 6 Conn. Sup. 5, 7 (1938); see Wallingford Rod & GunClub, Inc. v. Nearing, 19 Conn. Sup. 414, 116 A.2d 517 (1955). One courthas said that a monument, when used in describing land, is "any physicalobject on the ground which helps to establish the location of the linecalled for," whether it be natural or artificial. Delphey v. Savage,supra, 378. That court noted that, just as in contracts or wills, theintention of the parties governs the interpretation of deeds and that it is

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     for that reason "that monuments named in deeds are given precedence overcourses 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 wouldrequire equipment and expectassistance to find a course and distance." Id. "[T]he physicaldisappearance of a monument does not terminate its status as a boundarymarker, provided that its former location can be ascertained throughextrinsic evidence." Bailey v. Look, 432 A.2d 1271, 1274 (Me. 1981); seeTheriault v. Murray, 588 A.2d 720, 722 (Me. 1991); Seely v. Hand,402 A.2d 162 (N.H. 1979); 6 G. Thompson, Real Property (1962) § 3042.

The Supreme Judicial Court of Massachusetts has said: "Any competentevidence may be considered in determining the true boundary line betweenadjoining owners." Holmes v. Barrett, 269 Mass. 497, 500, 169 N.E. 509(1930). Among the evidence that may properly be considered in thedetermination of boundary disputes between private owners is evidence thatinvolves an exception to the hearsay rule. There it has been said that:"A declaration as to boundaries between individual proprietors is hearsay,but it is one of the recognized exceptions to the hearsay rule whenever thelegal conditions of its admission are present." Turgeon v. Woodward,83 Conn. 537, 540, 78 A. 577 (1910). "The difficulty of proving privateboundaries furnished the indispensable and urgent necessity for theadmission of declarations of the deceased with respect to them. Manyconveyances of agricultural land, and especially of woodland, do notdescribe the premises conveyed by courses and distances, nor even by fixedbounds. Lines cannot be run from them alone. When the private bounds aredesignated by landmarks, they are usually perishable in character andliable to soon disappear through decay and neglect, or in the furtherimprovement and settlement of the country, so that the next generation has

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     either forgotten, or never knew, them, or cannot find them. Id., 541."Putnam, Coffin & Burr, Inc. v. Halpern, 154 Conn. 507, 513, 227 A.2d 83(1967). Our courts> have acknowledged that "[t]he scope of the exceptionmust reasonably be confined within the limits of the necessity from whichit arose."11 See,e.g., id., 513. Accordingly, our courts> say: "Declarations as to thelocation of ancient boundaries are hearsay, and are not admissible inevidence unless it appears (1) that the declarant is dead, (2) that hewould be qualified as a witness to testify if present, and especially thathe had peculiar means of knowing the boundary, (3) that the statement wasmade before the controversy in suit arose, and (4) that he had no interestto misrepresent the truth in making the declaration. Mentz v. Greenwich,118 Conn. 137, 144, 171 A. 10 ; Borden v. Westport, 105 Conn. 139,149, 134 A. 803 [1926]; Turgeon v. Woodward, [supra,] 541 . . . ."(Internal quotation marks omitted.) Wildwood Associates, Ltd. v. Esposito,211 Conn. 36, 44, 557 A.2d 1241 (1989), quoting Putnam, Coffin & Burr, Inc.v. Halpern, supra, 154 Conn. 513; Rompe v. King, 185 Conn. 426, 428-429,441 A.2d 114 (1981).

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Each party produced an expert witness on this dispute.12 Therewas strongly conflicting evidence and it became the function of the trierof fact to determine credibility and, in doing so, it could "believe all,some or none of the testimony" of either expert. Dooley v. Leo,184 Conn. 583, 586, 440 A.2d 236 (1981); Bond v. Benning, 175 Conn. 308,312-13, 398 A.2d 1158 (1978); see 12 Am. Jur.2d, Boundaries, § 102.

The Turgeon court set out the four requisites of the hearsayexception, which has enjoyed vitality to the present. Immediately beforedoing so, however, it took pains to say: "`The law does not dispense withthe sanction of an oath and the test of cross-examination as a prerequisitefor the admission of verbal testimony, unless it discovers in the nature ofthe case some other sanction or test deemed equivalent for ascertaining thetruth.' Loomis, J., in South-West School District v. Williams,48 Conn. 504, 507 [1881]. Hence, in order to make such declarationequivalent in reliability and trustworthiness to the standard of ordinarytestimony when subjected to cross-examination, certain conditions wereattached to it as prerequisites to its admission." Turgeon v. Woodward,supra, 83 Conn. 541. Evidence that is properly admitted under thisexception, as it was in the trial court, is competent evidence for thetrier to consider and weigh with all the other evidence in the case.13

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Essentially, the defendant's claims here are, first, that the court'sdecision was incorrect, both as a matter of law and as a matter of fact, infinding that the division line between the property of the plaintiff andthe defendant was a stone wall and, second, that the court improperly foundthat the defendant removed stones that the plaintiff had placed to mark theboundary between their properties, while inconsistently finding that thestone wall was the boundary between them. We do not agree.

Both parties agree that the 1953 deed from Elizabeth to RichardKoennicke was ambiguous. That deed, stated as "containing 115 acres, moreor less," began its description of the property intended to be conveyed, as"beginning at the northwesterly corner of the within described tract at thejunction of land now or formerly of Eugene A. Roure, formerly the D.M.Deming place and the eastern side of Brook Road . . . ." This deed thendescribes the property back to the point on the east side of Brook Road asrunning along walls.14 In other words, although the deed refers tosome named abutters, throughout its description it refers to running alongwalls from beginning to end. It is the east-west boundary between theparties that is in dispute. The plaintiff and the defendant are atcounterpoint concerning the condition and nature of the stone wall thatfigures in the location of the east-west boundary. In his brief, theplaintiff maintains that "the parties agree that the property was notentirely surrounded by stone walls, as the literal description in the[ambiguous] deed indicated." This appears to be so. He also claims on thebasis of the credible evidence and the applicable law that certain barbed

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     wire fencing described in the evidence constituted the western boundarywith Roure, thus giving the attorney trial referee a "clear basis" toharmonize the ambiguity in the deed and to construe the calls for a stonewall as identifying the stone wall which traversed the two fields as thedivision line. This, he argues, is supported by the clear intention ofElizabeth as to whatshe intended to convey to Richard Koennicke in 1953 and what he fairlyunderstood he was receiving. The plaintiff appears to concede that theremay be a question on the initial call in the deed for a nonexistent stonewall "at the junction of land of Eugene A. Roure." He, however, arguesthat by reconciling the first call of this deed as being marked by barbedwire15 rather than by a stone wall, and by construing this call forthe Roure boundary as a monument, all the other monuments of the deed werethus harmonized and rendered consistent the remaining calls in the deed.

The defendant argues that the determination of the boundary line wasmade based on "fragmentary documentation" when it should have been based onacreage, as was the determination of his expert Charles Normandin. Thatexpert relied on the acreage set out in the deed in question because, as hesaid, that deed did not give "detailed courses and distances." Inaddition, arguing that only "remnants" of a stone wall still exist in thedisputed area, the defendant maintains that the use of them by theplaintiff's expert, Filip, to mark the plaintiff's northern boundary was

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     improper. In addition, he discredits the reliance on the evidence comingin on the location of the contested boundary under an unfavored hearsayexception. After indicating that he agrees that the deed involved isambiguous, he claims that the deed describes the boundary as beginning atthe northwest corner of the property, but in actuality, he argues, thestarting point is located at South Brook Road, which is on the south sideof the property.

Both parties offered expert testimony. The attorney trial refereecredited the evidence of Filip over that of Normandin. The attorney trialreferee found that the disputed east-west boundary line between theproperty of the parties was the "dashed line" depicted on the boundarysurvey prepared by Filip. That survey was the plaintiff's exhibit G.There was also other evidence from lay witnesses that supported thatconclusion.

Filip, in arriving at his determination of the location of theboundary, conducted a thorough investigation of Hampton land records as farback as the 1840s, including records of the location of various abuttersparticularly along Brook Road, which was the starting point for thedescription of the plaintiff's land in the 1953 deed to him from Elizabeth.In walking the area pointed out to him by the plaintiff as the boundary,Filip noted the presenceof strands of wire, some barbed and some not. The earliest strands werewithout barb, which he opined were of the vintage of the 1920s and 1930s.Other wire strands were plain wire without barbs that was of an oldervintage. This wire "fence," which involved wire on both sides of trees,followed a course that he opined, based on all the information available tohim, had been an east-west stone wall. He found remnants of that stonewall. In summary, the wire strands contained wire of at least threevintages, that of the type used for some years prior to the 1920s, someused in 1920s and 1930s and the newer thinner barbed wire, which started tobe used probably twenty years ago. He did not, however, find extensive

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     evidence of monumentation. He was able to do so when he started on SouthBrook Street where he depicted the boundary between the abutter Roure andthe plaintiff where "there's a partial wall — three or four strands ofwire there." This is part of his wire "fence." This anchors, with otherevidence, Roure as the abutter in that area. Adjacent land abutting may beused as a monument if the boundary of that adjacent land, as here with theabutter Roure, is fixed. Staff v. Hawkins, supra, 135 Conn. 319. Filip'ssurvey was prepared in accordance with Class A-2 survey standards.

On the other hand, Normandin never attempted to locate physicalmonuments in the field. Nevertheless, the defendant argues that becausethe deed involved was ambiguous, and the existing monuments "on the landbetween the parties [were] vague and unreliable," his expert "turnedinstead to the acreage call found in the deeds from Elizabeth . . . toRichard Koennicke." In his acreage call analysis, he examined three deedsconveying land to one Ebenezer Burnham during the early 1800s, enabling himto construct a 225 acre parcel from which the plaintiff's acre parcelconveyed by Elizabeth to William Koennicke (the predecessor of thedefendant) was cut. In doing so, he did not integrate into his analysiswhether his conclusion was at all affected by some forty-three othertransfers of real estate in Hampton by Ebenezer Burnham as grantor between1828 and 1878. Normandin's survey was prepared in accordance with Class Dsurvey standards.

There was also further evidence indicating the intention of theparties of the 1953 deed from Elizabeth to Richard Koennicke to convey thefield south of the stone wall that separated the two fields. As pointedout, that deed did contain references to some stone walls that no longerexist. Filip, however, in using historical evidence, principally the

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     barbed wire fencing, was able to establish the boundary line that tracksthe calls set out in this deed and does not ignore any of those calls.Again, it is to be remembered that that boundary concerns only theeast-west line between the parties.

Prior to her 1953 conveyance to Richard Koennicke of this southernparcel, Elizabeth owned the entire property, i.e., the acreage north andsouth of the stone wall. Before she conveyed the southern portion (nowowned by the defendant), she identified the stone wall between the twofields as the boundary line and sheoffered to sell it to her brother, Kurt G. Koennicke,16 telling himthat if he did not buy it she was going to convey it to their uncle,Richard Koennicke, to satisfy her debt to him. Kurt himself testified thatElizabeth did offer to sell it to him and that at that time Elizabethpointed out to him that the stone wall between the two fields was theboundary line. He also said "all the rest of it was what she gave back toUncle Richard for [the] nonpayment of that $1500 . . . ." After herreconveyance to Richard Koennicke,17 Elizabeth acknowledged, on morethan one occasion, this stone wall dividing the larger field from thesmaller field as the boundary line between her property that she hadretained. Before the plaintiff purchased his land from his uncle, RichardKoennicke, he walked the boundary line with his uncle, who indicated to himthat he was conveying to the plaintiff the land south of the stone walldividing the two fields. Elizabeth did not utilize the land to the southof the stone wall after the plaintiff purchased it. When Elizabeth waslooking for usable gravel deposits on the land she retained, she causedtest holes to be dug for that purpose, and although such test holes camevery close to the stone wall boundary, they were never located south ofthat stone wall. Such statements and conduct by Elizabeth during her

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     lifetime18 are evidence of her intention with regard to her 1953 deedto Richard Koennicke. They are of the nature of admissions. Putnam,Coffin & Burr, Inc. v. Halpern, supra, 154 Conn. 513; DiMaggio v. Cannon,165 Conn. 19, 327 A.2d 561 (1973); Turgeon v. Woodward, supra,83 Conn. 543-44; Apostles of the Sacred Heart v. Currott, supra,187 Conn. 599. The same observation applies to her grantee, RichardKoennicke, who, during his lifetime had no dispute with Elizabeth over thestone wall constituting the boundary between the land she deeded to him andthe land she retained at that time.

The plaintiff, now in his late sixties, testified that he was familiarwith the property when it was entirely owned by his uncle. This familiaritystarted when he was under ten years of age and he began to help his fatherand his uncle maintain stone walls, put up new wire, build barways and thelike. He was familiar with the boundary on an abutting parcel, and withthe disputed east-west boundary and the wire fence in issue. He walked itwith his father and uncle and later with Filip as the video was made. Heagreed with the boundary line as drawn by Filip between the two fields.His credibility was for the trier to determine.

Conduct of the defendant is also properly considered on this issue andit avails the plaintiff. In June, 1980, the defendant contracted with theRossi Corporation to log his land and thatcontract called for logging only north of the stone wall between the twofields. That contract covered his parcel, which was estimated to be 100acres. At the time of the Rossi contract, the defendant placed his land inforestry classifications setting out his total acreage as 100 acres. It isworth noting that with the stone wall between the two fields as theboundary, the defendant's land totals approximately 100 acres. Moreover,

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     at least since the time of the Rossi contract, the defendant has paid taxeson 100 acres and no more.

One more claim of the defendant on the boundary issue meritsdiscussion. He claims that certain findings of the attorney trial refereeare inconsistent and, therefore, clearly erroneous. See Stamford v. Kovac,36 Conn. App. 270, 274-75, 650 A.2d 626 (1994).19 The claim is thata fatal inconsistency exists between the finding that the boundary linebetween the land of the plaintiff and that of the defendant was the stonewall as depicted on the dashed line on Filip's boundary survey while at thesame time also finding that "the defendant removed stones the plaintiffplaced at another location to make his [the plaintiff's] boundary."20He says, without more, that the attorney trial referee "cannot consistentlymake the finding that the remnants of a stone wall [between theirproperties] was the boundary line and at the same time conclude that theboundary was somewhere else." We do not agree with the defendant.

The plaintiff testified that a stone wall was the division linebetween his land and that of the defendant. He also said that there werebarways in that wall that permitted access to the fields to the north andsouth of that wall. He placed stones in those barways21 attempting

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     to block them so as to inhibit the defendant'strespasses on his land south of that wall. The defendant, however,bulldozed "the rocks way out into his own field." This happened on anumber of occasions. These stones, so placed by the plaintiff in hisbarways, served to underscore the plaintiff's claim that, thus placed, theyserve as evidence of his boundary. The defendant, by wrongfully bulldozingthem elsewhere, cannot change that.

We conclude here that the trial court's adoption of the attorney trialreferee's findings was not clearly erroneous. We conclude on the quiettitle issue that the attorney trial referee properly determined that "theboundary of the plaintiff and the defendant is the dashed line depicted byStephen A. Filip on his boundary survey, Exhibit G."

II

Next, we turn to the defendant's claim that the trial court could notproperly find criminal trespass in this civil action because it lackedjurisdiction to do so. The trial court found that the defendant's actionsconstituted criminal trespass in violation of Connecticut General Statutes§ 53a-107.

Section 52-560 provides that any person who cuts, destroys or carriesaway any trees standing on the land of another "without the license of theowner" shall pay to the injured party three times the reasonable value ofsuch trees. Where, however, the court is satisfied that the defendant "wasguilty through mistake and believed that the tree[s] . . . w[ere] growingon his own land" then the court shall render judgment for no more than

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     their reasonable value. In this case, it was found that although thedefendant was aware that the plaintiff has claimed the disputed area as hisown since 1963, he took no action. Despite this knowledge and hisacquiescence, by his conduct, for many years in apparent recognition of theplaintiff's title, the defendant did later enter the plaintiff's propertyand, since November 1988, has cut approximately 100 trees with a combinedvalue of $4000.22

In her memorandum of decision, the attorney trial referee said,"Plaintiff is entitled to $12,000 in damages on count 2." Immediatelythereafter, her memorandum of decision states: "This court would haverecommended an award of attorney's fees for trespass however no evidence ofan appropriate award was provided. However, in view of defendant's threatsto plaintiff there is justification to award heightened damages.Accordingly, plaintiff's damages should be increased by half to $18,000."

Thereafter, the trial court accepted the report of the attorney trialreferee. The court also ordered as adopted her memorandum of decision"except for the award of punitive damages in Count III. See Chykirda v.Yanush, 131 Conn. 565, 569 [41 A. 449] (1945)." The court's order went onto state: "Judgment is entered in favor of the plaintiff as to Count 1establishing title to the disputed premises by deed; as to Count 2 in theamount of $12,000; and, as to Count 3 that a trespass has been committed bythe defendant. Judgment is entered in favor of the defendant as to Count 4. . . ."23

[43 Conn. App. 24]

The plaintiff's complaint alleges that the "[d]efendant's actionsconstitute criminal trespass in violation of ConnecticutGeneral Statutes Section 53a-107." That section of the statutes, as thedefendant properly points out, is a criminal statute which defines"Criminal Trespass in the First Degree and is classified as a Class Amisdemeanor."24 It is the most serious degree of the crime oftrespass. The defendant argues that because the attorney trial referee wasbeing asked in this case to hear and decide a civil matter, she did nothave subject matter jurisdiction to hear a criminal charge and that "thetrial court clearly erred as a matter of law in considering the claim forcriminal trespass."25

In arguing that the attorney trial referee and the trial courterroneously sought to exercise criminal jurisdiction, the defendant alsopoints out that he was not under arrest for criminal trespass, and that thetrial court presumptively used the incorrect standard of evidence indetermining his guilt under this criminal statute. We agree. The trialcourt and the attorney trial referee did not have jurisdiction to hearand decide that claim.26

[43 Conn. App. 25]

The fact remains that the trial court rendered judgment "as to count 3that a trespass had been committed by the defendant . . . ." Its"judgment" as to count 3 was, as the defendant claims, "rendered" withoutjurisdiction. Our Supreme Court has said: "As applied to a court, theword `jurisdiction' means the power to hear and determine a cause." Samsonv. Bergin, 138 Conn. 306, 309, 84 A.2d 273 (1951); LaReau v. Reincke,158 Conn. 486, 492, 264 A.2d 576 (1969); Brown v. Cato, 147 Conn. 418, 422,162 A.2d 175 (1960). "It is well established that a court is without powerto render a judgment if it lacks jurisdiction and that everything done underthe judicial process of courts> not having jurisdiction is, ipso facto,void. Martin v. Hunter's Lessee, 14 U.S. (1 Wheat.) 304, 364 (1816);Marshall v. Clark, 170 Conn. 199, 205, 365 A.2d 1202 (1976); Clover v.Urban, 108 Conn. 13, 17, 142 A.2d 389 (1928)." Chrysler Credit Corp. v.Fairfield Chrysler-Plymouth, Inc., 180 Conn. 223, 229, 429 A.2d 478 (1980)(Loiselle, J. concurring).27 The trial court's judgment on the thirdcount was void on its face. Clearly, there was no subject matterjurisdiction. "A judgment void on its face and requiring only aninspection of the record to demonstrate its invalidity is a mere nullity,in legal effect no judgment at all, conferring no right and affording nojustification . . . . It neither binds nor bars anyone. All acts performedunder it and all claims flowing out of it are void. The parties attemptingto enforce it may be responsible as trespassers." 1 A. Freeman, Judgments

[43 Conn. App. 26]

     (5th Ed. 1925) § 322. A void judgment "is without life and will be ignoredeverywhere." Southern New England Telephone Co. v. Public UtilitiesCommission, 165 Conn. 114, 123, 328 A.2d 695 (1973); see 46 Am. Jur.2d,Judgments § 31. "A court is without power to render a judgment if itlacks jurisdiction of the parties or of the subject-matter, one or both. Insuch cases, the judgment is void, has no authority and may be impeached."O'Leary v. Waterbury Title Co., 117 Conn. 39, 43, 166 A. 673(1933); Krueger v. Krueger, 179 Conn. 488, 493, 427 A.2d 400(1980). It is concluded that the trial court improperly rendered judgmenton the third count; that judgment of trespass was, and is, void.

Despite our conclusion that the judgment of trespass rendered on thethird count is void, further discussion of it is necessary because of theeffect of it claimed by the parties as to the second count. The defendantcontends that because the only "explicit finding of trespass was maderegarding criminal trespass" and because "no penalty was imposed forviolation of § 53a-107, the only purpose for a finding of criminal trespasswas for use in finding a violation of the tree cutting statute [§ 52-560]."He further argues that "[t]herefore, the use of the wrongful determinationof a criminal trespass to establish a violation of the tree cutting statuteis fatal to the finding of a wrongful tree cutting." The plaintiff, inanswering the defendant's claim that a finding of criminal trespass cannotbe made in a civil action, says that that claim is "ill-founded andmisconstrues both the plaintiff's complaint and the ruling" by the attorneytrial referee. In doing so, the plaintiff concedes that his complaintalleged a claim that the actions of the defendant were wilful and withoutbasis "since they constituted violations of the standards established by. . . Section 53a-107," but argues that he did not seek criminal sanctions,and the attorney trial referee did not presume to impose criminal

[43 Conn. App. 27]

     sanctions. Moreover, he argues that the third count was proper both as toa claim for damages for trespass and to a claim for punitive damages forthe wrongful cutting of trees. The plaintiff maintains that, in claimingpunitive damages, a plaintiff must clearly allege wilful and egregiousconduct of the defendant in order to justify the imposition of punitivedamages. Therefore, he claims that the allegation that the defendant'sactions were "the equivalent of criminal trespass in the first degree is afactual pleading that the actions were willful and egregious and couldtherefore be the basis of the imposition of punitive damages under [GeneralStatutes] § 52-560." While he concedes that he seeks "damages and punitivedamages" arising out of his claim as to the third count vis-a-vis thesecond count, the plaintiff nevertheless urges that he "sought no criminalsanction" and the trial court imposed no such sanction on the defendant.

However much the plaintiff appears to distance himself from "the nocriminal sanctions were sought or imposed" aspect of the judgment on thethird count, at the same time, he adopts the finding by the attorney trialreferee and the judgment of the trial court of trespass on that count, andin doing so he disingenuously maintains that the trial court improperlyrejected the attorney trial referee's recommended award of damages fortrespass. This whole controversy swirls around the award by the attorneytrial referee of the $6000 of "heightened damages." Pointing out thatthe attorney trial referee concluded that "in view of the defendant'sthreats to the plaintiff there is justification to award heighteneddamages."28 He contends that he is entitled to the $6000 "enhanced

[43 Conn. App. 28]

     damages" award.29 In granting the "heightened" damages, theplaintiff claims that the attorney trial referee was "merely making anappropriate damages award for the consequence of defendant's trespasses."The trial court refused to approve the attorney trial referee's award of"common law punitive damages" as recommended in the attorney trialreferee's memorandum of decision.

The plaintiff's drawing on § 53a-107 is somewhat disingenuous. Heargues, on the one hand, that it is in the case only to permit theestablishment of the elements of a criminal trespass in order to providethe basis for finding that egregious conduct that he admittedly wants touse, and the attorney trial referee did use to justify the "heightened"damages. Yet, selectively, he says that there has been no criminalsanction imposed under § 53a-107, nor did he ask for any. He does notoffer any authority30 to support

[43 Conn. App. 29]

     his contention that this criminal statute, a first class misdemeanor, mayproperly be pleaded and employed here as he claims. Pleading it as hedoes, as a separate count, as a separate cause31 of action, on whicha judgment of trespass was "rendered" by the trial court which he accepted,the plaintiff cannot now insist that he is entitled to draw on the thirdcount to support the "heightened damages" award of $6000 and otherwise todisavow the overt criminal character of § 53a-107.

Moreover, the plaintiff's argument, that we should adopt his claimthat he is entitled to "enhanced civil damages" because of his claim thatthere are many circumstances in which allegations of a statute which is"criminal in nature" may be made to establish entitlement to "enhancedcivil damages," is wholly unpersuasive in this case. The tree cuttingstatute does "not give a new and independent cause of action," butprescribes "the measure of damages in cases where compensatory damageswould, in the absence of the statute, be recoverable." Avery v. Spicer,90 Conn. 576, 583, 98 A. 135 (1916). In providing for damages in excess ofactual damages, the amount "is assessed with reference to the degree of thedefendant's culpability." See Cristilly v. Warner, 87 Conn. 461, 469,88 A. 711 (1913) (Beach, J., dissenting). Our Supreme Court hasindicated its recognition that the damages provision of the tree cuttingstatute does contain considerations of the culpability aspect of thedefendant's conduct. In Banks v. Watrous, 134 Conn. 592,600, 59 A.2d 723 (1948), it said: "The statute, like others inthe statute book which provide damages for wrongful conduct in excess ofthose ordinarily recoverable, is not a penal statute . . . it affords thebasis of a civil action in which the

[43 Conn. App. 30]

     damages, `assessed because of and with reference to the degree of thedefendant's culpability may be, and generally are, compensatory in theirnature, although they embrace injuries or expenses not included in strictlegal damages.'" See Doran v. Rugg, 22 Conn. Sup. 189, 193, 164 A.2d 859(1960) (House, J.). The place of culpability in the calculus of damagescomes in only where the defendant has not sustained his burden of proof onthe matter of the statutory provision for mitigation of mistake. See Doranv. Rugg, supra, 192, 193. It becomes evident that § 52-560 has built intoits provision for treble damages, "increased"32 damages over"actual damages sustained" that invokes the culpability aspect of thedefendant's conduct.

III

Having discussed certain interaction between the first and secondcounts from the perspective of damages, we now turn directly to the secondcount, which is brought under § 52-560. In addition to what we havealready said about § 52-560, we point out the following considerations.

[43 Conn. App. 31]

     Since trespass is a possessory action, it is necessary for the plaintiff toprove possession, actual or constructive, to prevail. Wadsworth Realty Co.v. Sundberg, 165 Conn. 457, 461, 338 A.2d 470 (1973); More v. Urbano,151 Conn. 381, 383, 198 A.2d 211 (1964). This, the plaintiff has done. "Toescape the imposition of treble damages, it was incumbent upon [thedefendant] to prove not only mistake but the further . . . affirmativebelief that the timber was growing on his own land." Doran v. Rugg, supra,22 Conn. Sup. 195. This, the defendant did not do. The mistake, ofcourse, that is necessary to resist successfully the imposition of trebledamages under the statute must be an honest mistake and belief. SeePetroman v. Anderson, 105 Conn. 366, 371, 135 A. 391 (1926); Doran v.Rugg, supra, 194.

We have determined that the plaintiff cannot draw at all on the thirdcount in any fashion to aid him in his claims, especially for damages,which he makes for enhanced or heightened damages under the second count.Nevertheless, he claims that there is authority to permit such damages,over and above the treble damages of $12,000 awarded to him under § 52-560.Arguing that such venerable cases as Hart v. Brown, 2 Root (Conn.) 301(1795), and Edwards v. Beach, 3 Day (Conn.) 447, 450 (1809), alloweddamages for malice and insult as well as actual loss in trespass action, hemaintains that the same should be done here. Those cases are easilydistinguishable as neither involved tree cutting and there was such astatute in those days. Moreover, he offers no analysis as to why suchdamages should be allowed when § 52-560 does not provide for them althoughthe legislature has included in the treble damages provision a culpabilityfactor over and above actual loss. See Banks v. Watrous, supra,134 Conn. 600; Avery v. Spicer, supra, 90 Conn. 583;Doran v. Rugg, supra,

[43 Conn. App. 32]

     22 Conn. Sup. 193. Moreover, "[w]hen a cause of action has been created bya statute which expressly provides the remedies for vindication of thecause, other remedies should not readily be implied." FleischmannDistilling Corp. v. Maier Brewing Co., 386 U.S. 714, 720, 87 S.Ct. 1404,18 L.Ed.2d 475 (1967); Getty Petroleum Corp. v. Bartco Petroleum Corp.,858 F.2d 103, 112 (1988). The ability to provide for such damages under§ 52-560, as the plaintiff claims here, is a matter for the legislature.As the Supreme Court said in a case where attorney's fees were providedunder certain provisions of a statute and not elsewhere in that statute:"To put it simply, when the General Assembly wanted to authorize the awardof attorney's fees it knew how to do it."33 Chrysler Corp. v. Maiocco,209 Conn. 579, 593, 552 A.2d 1207 (1989); Marsh, Day & Calhoun v. Solomon,204 Conn. 639, 652-53, 529 A.2d 702 (1987). We conclude that the trialcourt properly rendered judgment for the plaintiff in the amount of$12,000.

The judgment is reversed only as to the finding of criminal trespasson the third count, and the case is remanded with direction to renderjudgment as on file except as modified to eliminate that finding.

1. The fourth count, which alleges a cause of action in adversepossession, is not involved in this appeal.

2. General Statutes § 52-560, which is entitled "Damages for cuttingtrees, timber or shrubbery," provides: "Any person who cuts, destroys orcarries away any trees, timber or shrubbery, standing or lying on the landof another or on public land, without license of the owner, and any personwho aids therein, shall pay to the party injured five times the reasonablevalue of any tree intended for sale or use as a Christmas tree and threetimes the reasonable value of any other tree, timber or shrubbery; but,when the court is satisfied that the defendant was guilty through mistakeand believed that the tree, timber or shrubbery was growing on his land, oron the land of the person for whom he cut the tree, timber or shrubbery, itshall render judgment for no more than its reasonable value."

3. General Statutes § 53a-107, which is entitled "Criminal trespass inthe first degree: Class A misdemeanor," provides: "(a) A person is guiltyof criminal trespass in the first degree when: (1) Knowing that he is notlicensed or privileged to do so, he enters or remains in a building or anyother premises after an order to leave or not to enter personallycommunicated to him by the owner of the premises or other authorizedperson; or (2) he enters or remains in a building or any other premises inviolation of a restraining order issued pursuant to section46b-15 or a protective order issued pursuant to section 46b-38c by thesuperior court; "(b) Criminal trespass in the first degree is a class A misdemeanor."

4. The attorney trial referee also viewed the land involved.

5. One commentator has noted that the report to be filed with the trialcourt under Practice Book § 434 "may, but need not, include a memorandum ofdecision." W. Moller & W. Horton, 1 Connecticut Practice, Practice BookAnnotated, p. 635.

6. The defendant's "Objection to Acceptance of Report" set out thefollowing: "(1) The report finds as a fact a boundary line whichdisregards the acreage called for in the deed, which was made an exhibit attrial. Exhibit `C.' Nichols v. Turney, 15 Conn. 101, 108 [1842]. (2)Although the Referee found that the deed was ambiguous (Paragraph 9) shebased other findings upon a portion of the admittedly ambiguousdescription, while ignoring other portions of said deed description. (3)The Memorandum of Decision incorrectly applies the law to the factsfound."

7. The plaintiff's parcel, which is on the east side of Brook Road,extending south from Clarks Corner to the town of Scotland, was acquired byhim by a deed from Richard Koennicke, dated February 6, 1960, and it isdescribed as follows: "All that certain piece or parcel of land situated inthe southwesterly part of the Town of Hampton, County of Windham and Stateof Connecticut, on the easterly side of the Brook Road, so called, leadingsoutherly from Clarks Corners to the Town of Scotland and bounded anddescribed as follows: Beginning at the northwesterly corner of the withindescribed tract at the junction of land now or formerly of Eugene A. Roure,formerly the D. M. Deming place, and the easterly side of the said BrookRoad, thence the line runs easterly along a stone wall by land now orformerly of Eugene A. Roure, to a corner of walls; thence the line runsnortherly along the wall, bounded westerly by land now or formerly ofEugene A. Roure to a corner of walls and by land now or formerly ofElizabeth Koennicke Maiorano, thence the line runs easterly along the walland land now or formerly of Elizabeth Koennicke Maiorano to a corner ofwalls and to land of persons unknown, thence the line runs southerly by awall and land of persons unknown to a corner of walls; thence the line runseasterly along a wall to a corner of walls and land of persons unknown;thence the line runs southerly along a wall to a corner of walls and landof persons unknown; thence the line runs westerly to Brook Road along awall and land now or formerly of Philitus Farnham, Dwight Carey and others;thence the line runs northerly along the easterly side of Brook Road to thepoint or place of beginning, containing 115 acres, more or less."

8. The defendant's parcel came to him through a certificate of devise in1981 and it is described as follows: "A certain piece or parcel of landwith the buildings thereon, situated in the southwesterly part of the Townof Hampton, County of Windham and State of Connecticut bounded anddescribed as follows: bounded north by land now or formerly of Mr. Neff,Allen Jewett, William and Marina Bennett and others; easterly by land nowor formerly of said Allen Jewett, Bennett, Darias Shippe, land belongingto the Peter Fetherstone estate and others; southerly by land formerly ofPhilitus Farnham, Dwight Carey and other; west by the highway leading fromthe house formerly of D. M. Deming to Scotland; also west by land now orformerly of said Deming, land formerly of Mr. Hyde and land of said Shippeand other. Excepting parcel conveyed to Richard Koennicke in Volume WPage 123 on May 13, 1953."

9. This concerns the circumstance that not all of the stone wall orwalls referred to in the deed are now in existence.

10. Stephen A. Filip was a land surveyor retained by the plaintiff, whodrew a boundary map based on his investigation and who also testified as anexpert at the trial of this action.

11. The defendant argues that this exception to the hearsay rule is notfavored. Years ago, our Supreme Court, in synthesizing earlier decisionson this exception, said in Turgeon v. Woodward, supra, 83 Conn. 540-41,that "[i]n some instances exceptions to this rule have grown up throughnecessity, from the knowledge that the only alternative is the practicalabandonment of all attempt to prove certain kinds of facts unless thehearsay barrier is let down, and in the established and general knowledgethat the great majority of human affairs are more or less affected by areliance upon hearsay without imperilling their trustworthiness, or theirefficiency and safety. Swift's Evidence, 121. Murray v. Supreme Lodge,74 Conn. 715, 718, 52 [A.] 722 [1902], furnishes an example of an exceptionto the hearsay rule, based upon necessity. Necessity alone could not havesecured these exceptions to the hearsay rule, unless had been ableto see that, with the adoption of certain safeguards as conditionsprecedent to the reception of such evidence, reliance might be placed uponit as reasonably to be trusted. In such way the law uses, in many cases,the only available evidence, and the truth benefits by its use."

12. The plaintiff's expert was Steven Filip and the defendant's expertwas Charles Normandin. Both were licensed land surveyors and each prepareda map showing where each determined the disputed boundary was located.Both maps became exhibits in the case.

13. Upon our examination of the record before us, we note that in anumber of instances the defendant contends that certain matters disclosedby the evidence are "facts" supporting his claims. It is apparent that anumber of these claims involved issues of credibility and were resolvedagainst him. Nothing, of course, "`is more elementary than that the trieris the final judge of the credibility of witnesses and of the weight to beaccorded their testimony.'" Wildwood Associates, Ltd. v. Esposito, supra,211 Conn. 45. "We will not intrude upon this province unless thefacts found are legally and logically inconsistent with the trial court'sconclusion." Id.

14. This deed refers to "a stone wall," "the wall," "a corner of walls,""along the wall" and "along a wall." We follow counsel, who at trial,treated this parcel as being enclosed by a stone wall in its entiretyinsofar as the description in this deed is concerned. We will dispose ofthe case on the theory on which is was tried and on which the trial courtdecided it. Borzencki v. Estate of Stakum, 195 Conn. 368, 375,489 A.2d 341 (1985); Crozier v. Zaboori,14 Conn. App. 457, 463, 541 A.2d 531(1988).

15. There was in evidence before the attorney trial referee as anexhibit and in the record before this court a video of the plaintiff as hetraverses the boundary line involved in this case. A viewing of it isilluminating as to the condition and claimed location of the stone wall inquestion, barbed wire, barways, location of trees allegedly cut by thedefendant as well as stones allegedly moved by the defendant. The video isparticularly helpful in actually portraying the remnants of the stone wallreferred to in the ambiguous deed as well as its proximity to the barbedwire fences referred to in the evidence.

16. Kurt G. Koennicke is deceased but his deposition was read at thetrial.

17. Richard Koennicke died over twenty years ago.

18. Elizabeth died sometime prior to June 1980.

19. "`In addressing a challenge to the facts found by the trial refereeand adopted by the trial court, this court's function is to determinewhether those findings were clearly erroneous. Practice Book § 4061.Because the resolution of conflicting factual claims falls within theprovince of the trial court, we can reverse the judgment only if thefindings are clearly erroneous.'" Stamford v. Kovac, supra,36 Conn. App. 274-75.

20. Actually, this finding as made by the attorney trial referee wasthat "the defendant removed stones plaintiff placed to mark the boundaryline."

21. The video in evidence of the stone wall and the wire fence isparticularly helpful. It shows a stone wall for some of the length of theboundary line with several barways in that portion of the wall stillextant. The remaining portion of the wall, the plaintiff states, "might becharacterized as a `remnant.'" The defendant has referred to what is saidto be the stone wall as "fragmentary monumentation." In any event, on allthe evidence, Filip's analysis together with the supporting evidencealready set out shows that Filip's placement of the boundary line wasproperly found by the attorney trial referee and the trial court to havebeen proven. No matter what the condition of the stone wall or how much ofit is no longer physically extant, it is clear that the plaintiff neverbuilt any part of it.

22. In addition to these findings in her report, the attorney trialreferee, in her memorandum of decision, points out that "there is nothingin evidence which lends credence to the possibility that [the defendant]unequivocally thought the land was his." (Emphasis added.)

23. The attorney trial referee's memorandum of decision states: "Sincedefendant continued to enter the disputed portion despite plaintiff'sattempts to keep him out directly and through counsel, defendant's conductis a violation of C.G.S. Section 53a-107." The trial court renderedjudgment "as to count 3 that a trespass has been committed by the defendant. . . ."

24. General Statutes § 53a-26 entitled "Misdemeanor: Definition,classification, designation," provides in relevant part: "(a) An offensefor which a person may be sentenced to a term of imprisonment of not morethan one year is a misdemeanor. "(b) Misdemeanors are classified for the purposes of sentence asfollows: (1) Class A, (2) class B, (3) class C and (4)unclassified. . . ."

25. In arguing that the attorney trial referee and the trial courterroneously sought to exercise criminal jurisdiction, the defendant alsopoints out that he was not under arrest for criminal trespass and that thetrial court presumptively used the incorrect standard of evidence indetermining his "guilt" under this criminal statute.

26. The defendant claims that this issue is moot unless the cross appealis sustained, since the trial court rejected the attorney trial referee'saward of "enhanced damages." The defendant apparently misperceives thedoctrine of mootness. "An issue is moot when the court can no longer grantany relief." Ivimey v. Watertown, 30 Conn. App. 742, 754, 622 A.2d 603,cert. denied, 226 Conn. 902, 625 A.2d 1375 (1993); see Shays v. LocalGrievance Committee, 197 Conn. 566, 571, 499 A.2d 1158 (1985). The thirdcount, concerning which jurisdiction in this case never existed, couldnever be the source of granting relief. See 1 A. Freeman, Judgments (5thEd. 1925) § 321. Moreover, no valid argument can be made making thejurisdictional issue on the third count in any way contingent upon thesustaining or overruling of the cross appeal as the plaintiff claims.

27. The Restatement (Second), Judgments § 11, comment (a) (1982),states: "The rules of subject matter jurisdiction of a court are generallyprescribed by the political authority that created the court . . . .Questions of subject matter jurisdiction are therefore matters of organiclaw of the government involved, state or federal . . . ."

28. The plaintiff, in his brief, refers to the heightened damagesrecommended by the attorney trial referee as "enhanced" damages. Theattorney trial referee never used the term "enhanced damages" in either herfinding or her memorandum of decision.

29. The attorney trial referee, who cited no legal authority for heraward of the $6000 of "heightened damages," arrived at that figure by"increasing" by half the $12,000 award on the second count to $18,000.

30. The plaintiff, speaking of "enhanced civil damages," says that thereare many circumstances where "allegations of violation of a statute whichis criminal in nature may be made to establish entitlement to enhancedcivil damages. "By way of example he cites General Statutes §§ 14-295 and52-564. The former statute does provide that the trier of fact may awarddouble or treble damages where the defendant has operated a motor vehicle"deliberately or with reckless disregard" in violation of any of ninespecific statutes set out in § 14-295. The latter statute provides for thepayment of treble damages against any person "who steals any property ofanother or knowingly receives and conceals stolen property . . . ." Thereare other statutes that allow the recovery of double or treble damages inaddition to compensatory damages by specifically so stating that in thestatute. Such statutes include General Statutes §§ 52-565, 52-570, 52-566,52-567, 52-568, 52-569, 52-560 and 47a-46. These are statutes thatspecifically use the words "punitive damages" in awards authorized by suchstatutes. See §§ 31-290a, 52-240b. The plaintiff, however, has not pointed to any statutory authorityfor the awarding of "heightened" damages where the statute involved alreadycontains, as does § 52-560, for damages over and abovecompensatory damages and where the trebling of his compensatory damages hasalready been adjudged. Simply, the plaintiff's actual loss was found to be$4000 but because of the circumstances, the attorney trial refereerecommended and the trial court ordered judgment for $12,000 on the secondcount, thus giving him the maximum recovery which was provided for under§ 52-560.

31. See Practice Book § 138.

32. The plaintiff makes reference to the $6000 award as "enhanced"damages. His analysis as to just how "enhanced damages" is to be definedis lacking. We do note, however, that , when addressing the doubleor treble damage statutes, have referred to such damages as involving"statutorily enhanced damages." See Avis Rent A Car System, Inc.v. Liberty Mutual Ins. Co., 203 Conn. 667, 671, 526 A.2d 522 (1987);Caulfield v. Amica Mutual Ins. Co., 31 Conn. App. 781,785, 627 A.2d 466, cert. denied, 227 Conn. 913, 632 A.2d 688 (1993).The environmental statutory scheme permits the recovery of "[statutorily]enhanced damages." See General Statutes § 22a-451 (a), allowing damagesequal to "one and a half times the costs and expenses incurred," and incertain circumstances "two times the costs and expenses" incurred by thedepartment of environmental protection in handling certain types ofenvironmental law violations, and Connecticut Resources Recovery Authorityv. Refuse Gardens, Inc., 229 Conn. 455, 457, 642 A.2d 697 (1994). We have already decided that the void nature of the judgment of thetrial

33. The plaintiff has not demonstrated any persuasive reason for notfollowing "[t]he general rule of law known as the American rule . . . thatattorney's fees and ordinary expenses and burdens of litigation are notallowed to the successful party absent a contractual or statutoryexception." (Citations omitted.) Chrysler Corp. v. Maiocco, supra,209 Conn. 590.

The plaintiff, W. William Koennicke, instituted thisaction in a complaint in four counts against the defendant, Curt A.Maiorano, seeking to quiet title to a disputed portion of land that runsalong the boundary between his property and that of the defendant in thetown of Hampton. Generally speaking, their properties adjoin each other.The plaintiff also seeks damages for the cutting of trees and for trespassand title by adverse possession.1

The first count, which seeks to quiet title, alleges that thedefendant claims an estate or interest by deed in "an undefined portion" ofthe land of the plaintiff on which the defendant has knowingly enteredwithout the plaintiff's permission, has cut down trees without permission,has caused earth moving equipment to be brought in, has caused disturbanceto the earth thereon, has removed signs prohibiting trespass on theplaintiff's land and has stored cut wood on that land. The second countincorporates a number of the same allegations and further alleges that thedefendant's actions constitute a cutting of trees on the land of another inviolation of General Statutes § 52-560.2 The third count

[43 Conn. App. 3]

     incorporates the same allegations as the second count and sets out twoadditional allegations. They are that, on diverse dates, the plaintiff orhis agents personally communicated to the defendant orders not to enter theplaintiff's property or to leave that property and that the defendant'sconduct constituted criminal trespass in violation of General Statutes §53a-107.3

The case was referred to an attorney trial referee who heard theevidence4 and submitted her report comprising her findings of factand conclusions of law. At the same time, she also filed her memorandum ofdecision,5 which included case law citations as well as herrecommendations for judgment. In it, she found the issues for theplaintiff on the first, second and third counts and recommended judgmentfor the plaintiff on those three counts, and she found the issues for thedefendant on the fourth count and recommended judgment for the defendant onthat count. The defendant objected6 to the acceptance of the report

[43 Conn. App. 4]

     of the attorney trial referee. The trial court overruled the objections ofthe defendant and adopted the referee's memorandum of decision except forthe award of common law punitive damages in the third count. It renderedjudgment in favor of the plaintiff on the first count, establishing titleto the disputed premises by deed; for the plaintiff on the second count for$12,000; and for the plaintiff on the third count, to the effect that atrespass had been committed by the defendant. This appeal followed. Theplaintiff cross appealed on matters involving damages, which we considerlater in this opinion.

On this appeal, the defendant claims that the trial court improperlyconcluded (1) that, as a matter of law, the division line between theproperties of the plaintiff and defendant was a stone wall, (2) that, as amatter of fact, a stone wall constituted the boundary line between the twoproperties involved when that finding was not supported by the evidence,(3) that the defendant removed stones that the plaintiff had placed to markthe boundary line between them when inconsistently finding that the stonewall was the boundary between the parties, (4) that, as a matter of law,the defendant wrongfully cut trees on the land of the plaintiff inviolation of § 52-560 and (5) that the defendant committed a criminaltrespass in violation of General Statutes § 53a-107. We discuss the firstthree claims together and the fourth and fifth together. We affirm thejudgment of the trial court except as to the third count of the complaint.

The plaintiff filed a cross appeal in which he claims that the trialcourt improperly refused to award heightened damages, refused to award

[43 Conn. App. 5]

     attorney's fees based on its own knowledge of the complexity of theproceedings before it and failed to order a separate hearing regardingattorney's fees if the award of heightened damages was properly rejected.The issues of the cross appeal are interrelated, and relate closely to theresolution of the appeal itself.

The report of the attorney trial referee discloses that she found,inter alia, the following facts and made certain conclusions of law. Theplaintiff7 and the defendant8 own adjoining parcels of

[43 Conn. App. 6]

     land in the town of Hampton formerly owned by the defendant's mother,Elizabeth Koennicke Maiorano (Elizabeth). The plaintiff is Elizabeth'sbrother. Elizabeth had obtained title to the entire property in 1943 by awarranty deed from Richard Koennicke. That warranty deed included therecital that the entire property "contains about two hundred and twentyfive acres, be the same more or less." Thereafter, in 1953, because shewas unable to repay Richard Koennicke fully for the property, Elizabethreconveyed the south portion of it to him in satisfaction of that debt.The warranty deed reconveying this portion to her grantor, RichardKoennicke, included the recital "roughly estimated as containing 115 acresof land, be it the same, more or less." The attorney trial referee foundthat the statement of acreage in this deed was merely a matter ofdescription and was not intended to assure a particular quantity of land.In addition, the 1953 warranty deed described the lands reconveyed toRichard Koennicke by reference to stone walls and adjoining propertyowners. The division line between the properties was a stone wall dividingtwo fields. The larger field lay to the north of the stone wall and wasretained by Elizabeth.

The plaintiff acquired title to the land owned by Richard Koennicke bya warranty deed dated February 6, 1960. That deed repeated the descriptionthat was set out in the 1953 warranty deed from Elizabeth to RichardKoennicke.

The defendant acquired his present interest in this parcel, which wasthe balance of the land retained by Elizabeth, after her 1953 deed toRichard Koennicke, by virtue of a November 13, 1963 quitclaim deed fromElizabeth to herself and the defendant with rights of survivorship. The

[43 Conn. App. 7]

     description set out in the 1963 quitclaim deed was essentially the originaldescription used in the 1953 warranty deed from Richard Koennicke toElizabeth, including the "containing 225 acres more or less" language.This 1963 quit claim deed contained the following recital: "Excepting andexcluding from the above a parcel conveyed by [Elizabeth] to RichardKoennicke by Warranty Deed, dated May 13, 1953 . . . and which parcelcontains 115 acres, more or less."

The disputed area that is the subject of this action is a strip ofapproximately 300 feet extending from the stone wall south and includes thesmaller of the two fields. The description in the1953 warranty deed from Elizabeth to Richard Koennicke is ambiguous becauseof the fact that it contains some references9 to monuments that nolonger exist. The attorney trial referee found that it was the intentionof Elizabeth to convey, by that 1953 deed, all the land to the south of thestone wall between the two fields to Richard Koennicke. Prior to the 1953deed to her uncle, Richard Koennicke, Elizabeth had identified the stonewall between the fields as the boundary to Kurt A. Koennicke, her brother,and she had indicated to him that if he did not buy it, she was going toreconvey it to Richard Koennicke to satisfy her debt to him. Prior to hispurchase of his parcel from Richard Koennicke, the plaintiff walked theboundary line with Richard, who indicated that he was conveying to theplaintiff the land to the south of the stone walls dividing the two fields.After the plaintiff's purchase of this land, Elizabeth, when conferringwith the plaintiff to issue deer permits and again when the plaintiffallowed a neighboring farmer to plant the field, acknowledged the stonewall dividing the larger field and smaller field as the boundary linebetween her property and that of the plaintiff. Since acquiring title, theplaintiff has planted rye in the smaller field to the south of the stone

[43 Conn. App. 8]

     wall and has also cut wood to the south of the stone wall. Elizabeth didnot utilize the land south of the stone wall after its purchase by theplaintiff, digging test pits only on the north portion in search of gravelto sell. There were no disputes between the plaintiff and Elizabeth or thedefendant prior to Elizabeth's death.

The dispute concerning the location of the boundary line did not startuntil approximately 1985, when the defendant moved to the farm on hisproperty. In approximately 1979, the plaintiff had loaned the defendant$7500, which was not repaid. The plaintiff, in 1986 or 1987, asked thedefendant to repay that $7500 loan. The disputes over the plaintiff'sownership coincided with these requests for repayment.

In June, 1980, the defendant entered into a contract with the Rossicorporation to log his land, which was estimated at that time to be 100acres. The contract called for logging only to the north of the stone wallbetween the fields. At the time of his contract with Rossi, the defendantplaced his land in forestry classification, referencing his total acreageas 100 acres. In addition, he has paid taxes on 100 acres at least sincethat time. With the stone wall between the two fields as the boundary, thedefendant's land is about 100 acres.

The defendant began entering the disputed portion, that is the landsouth of the stone wall, to cut trees and to store junk vehicles in 1986 or1987. Sometime within the last five years, the defendant made a road fromthe small field to a pond on the plaintiff's property. The defendantremoved stones that the plaintiff placed to mark the boundary line. SinceNovember 15,1988, the defendant has cut approximately 100 trees, oak, maple and poplar.The value of these 100 trees is $4000. The defendant threatened to assaultthe plaintiff when encountering him in the disputed area. The defendant

[43 Conn. App. 9]

     was aware that the plaintiff was claiming the disputed area as his since1963 and took no action to dispute that claim.

The boundary line between the property of the plaintiff and thedefendant is the dashed line depicted by Stephen A. Filip10 on hisboundary survey, which is in evidence as plaintiff's exhibit G.

I

We first address the defendant's claims that the trial courtimproperly adopted the attorney trial referee's finding that the stone wallwas the boundary between the two properties at issue and that its findingsin doing so were inconsistent. Certain applicable principles, that will besupplemented as occasion requires, are appropriately set out at this point.All actions to determine record title of any interest in real property aregoverned by General Statutes § 47-31. DeVita v. Esposito,13 Conn. App. 101, 104, 535 A.2d 364 (1987), cert. denied, 207 Conn. 807,540 A.2d 375 (1995). The statute requires that the complaint in such anaction describe the property in question, state the plaintiff's claim,interest or title and the manner in which the plaintiff acquired theinterest, title or claim, and it must also name the person or persons whomay claim the adverse interest or estate. General Statutes § 47-31.The burden of proof in this case is on the plaintiff to prove that theboundary is where he claims it to be. Steinman v. Maier, 179 Conn. 574,575, 427 A.2d 828 (1980); Simmons v. Addis, 141 Conn. 738, 741,110 A.2d 457 (1954). The plaintiff is required to prevail on thestrength of his title and not on the weakness of his adversary'sclaim. Velsmid v. Nelson, 175 Conn. 221, 229,397 A.2d 113 (1978); Lake Garda Improvement Assn. v.

[43 Conn. App. 10]

     Battistoni, 155 Conn. 287, 293, 231 A.2d 276 (1967); Burke v.Ruggerio, 24 Conn. App. 700, 704, 591 A.2d 453, cert. denied,220 Conn. 903, 593 A.2d 967 (1991).

"In determining a boundary line in a deed, the law is clear that thedescription in the deed, if clear and unambiguous, must be given effect.In such a case, there is no room for construction. The inquiry is not theintent of the parties but the intent which is expressed in the deed. LakeGarda Improvement Assn. v. Battistoni, 160 Conn. 503, 511, 280 A.2d 877[1968]; Faiola v. Faiola, 156 Conn. 12, 17, 238 A.2d 405 [1966]; Katsoff v.Lucertini, 141 Conn. 74, 77, 103 A.2d 812 [1954]; Patzloff v. Kasperovich,116 Conn. 440, 441-42, 165 A. 349 [1933]; Botsford v. Wallace, 69 Conn. 263,271, 37 A. 902 [1899]. Where the deed is ambiguous, however, theintention of the parties is a decisive question of fact. Lake GardaImprovement Assn. v. Battistoni, supra; Staff v. Hawkins, 135 Conn. 316,319, 64 A.2d 176 [1949];Gioia v. Annunziata, 102 Conn. 52, 56, 127 A. 921 [1925]; Raymond v. Nash,57 Conn. 447, 452, 18 A. 714 [1889]." F. & AK., Inc. v. Sleeper,161 Conn. 505, 510, 289 A.2d 905 (1971); see Apostles of the Sacred Heartv. Curott, 187 Conn. 591, 595, 448 A.2d 157 (1982); Faiola v. Faiola,supra, 18. In ascertaining the intention of the parties, it was proper forthe trial to consider the surrounding circumstances. Staff v. Hawkins,supra; Connecticut Light & Power Co. v. Fleetwood, 124 Conn. 386, 389,200 A. 334 (1938).

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 monumentswhich are definite and certain, the monuments will prevail over courses anddistances." Frank Towers Corp. v. Laviana, 140 Conn. 45, 50, 97 A.2d 567(1953); Velsmid v. Nelson, 175 Conn. 221, 227, 397 A.2d 113 (1978); Russov. Corideo, 102 Conn. 663, 672, 129 A. 849 (1925). The general rule is thatthe designated quantity of land called for, here acreage, is the least

[43 Conn. App. 11]

     reliable aspect of the description in determining the intent by theparties. See J. Backman & D. Thomas, A Practical Guide to Disputes BetweenAdjoining Landowners — Easements (1990) § 8.02; 12 Am. Jur.2d Boundaries§ 75; Erickson v. Wick, 22 Wash. App. 433, 591 P.2d 804 (1979); TexasEastern Transmission Co. v. McCrate, 76 Ill. App.3d 828, 395 N.E.2d 624(1979). The land of an adjoining owner whose boundaries can be fixed byknown monuments is also considered to be a monument to establish aboundary. Frank Towers Corp. v. Laviana, supra, 51.

A "monument," when used in describing land, has been defined as "anyphysical object on the ground which helps to establish the location of theline called for and the term `monument,' when used with reference toboundaries, indicates a permanent object which may be either a natural orartificial one. . . . Natural monuments include such natural objects asmountains, streams, rivers, creeks, springs, trees . . . . Artificialobjects and monuments consist of marked lines, stakes, rocks, fences,buildings and similar matters marked or placed on the ground by the hand ofman." 12 Am. Jur.2d Boundaries, § 4, p. 549; 4 Tiffany, Real Property (3dEd. 1975) § 993, p. 193; 3 American Law of Property, (Casner Ed. 1952) §12.105; see Delphey v. Savage, 227 Md. 373, 374-75, 177 A.2d 249 (1962). Ithas been said that "a stone wall is strong evidence of a boundary line.Roberti v. Atwater, 43 Conn. 540, 546 [1876]"; Pendleton v. MacDonald,Highway Commissioner, 6 Conn. Sup. 5, 7 (1938); see Wallingford Rod & GunClub, Inc. v. Nearing, 19 Conn. Sup. 414, 116 A.2d 517 (1955). One courthas said that a monument, when used in describing land, is "any physicalobject on the ground which helps to establish the location of the linecalled for," whether it be natural or artificial. Delphey v. Savage,supra, 378. That court noted that, just as in contracts or wills, theintention of the parties governs the interpretation of deeds and that it is

[43 Conn. App. 12]

     for that reason "that monuments named in deeds are given precedence overcourses 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 wouldrequire equipment and expectassistance to find a course and distance." Id. "[T]he physicaldisappearance of a monument does not terminate its status as a boundarymarker, provided that its former location can be ascertained throughextrinsic evidence." Bailey v. Look, 432 A.2d 1271, 1274 (Me. 1981); seeTheriault v. Murray, 588 A.2d 720, 722 (Me. 1991); Seely v. Hand,402 A.2d 162 (N.H. 1979); 6 G. Thompson, Real Property (1962) § 3042.

The Supreme Judicial Court of Massachusetts has said: "Any competentevidence may be considered in determining the true boundary line betweenadjoining owners." Holmes v. Barrett, 269 Mass. 497, 500, 169 N.E. 509(1930). Among the evidence that may properly be considered in thedetermination of boundary disputes between private owners is evidence thatinvolves an exception to the hearsay rule. There it has been said that:"A declaration as to boundaries between individual proprietors is hearsay,but it is one of the recognized exceptions to the hearsay rule whenever thelegal conditions of its admission are present." Turgeon v. Woodward,83 Conn. 537, 540, 78 A. 577 (1910). "The difficulty of proving privateboundaries furnished the indispensable and urgent necessity for theadmission of declarations of the deceased with respect to them. Manyconveyances of agricultural land, and especially of woodland, do notdescribe the premises conveyed by courses and distances, nor even by fixedbounds. Lines cannot be run from them alone. When the private bounds aredesignated by landmarks, they are usually perishable in character andliable to soon disappear through decay and neglect, or in the furtherimprovement and settlement of the country, so that the next generation has

[43 Conn. App. 13]

     either forgotten, or never knew, them, or cannot find them. Id., 541."Putnam, Coffin & Burr, Inc. v. Halpern, 154 Conn. 507, 513, 227 A.2d 83(1967). Our courts> have acknowledged that "[t]he scope of the exceptionmust reasonably be confined within the limits of the necessity from whichit arose."11 See,e.g., id., 513. Accordingly, our courts> say: "Declarations as to thelocation of ancient boundaries are hearsay, and are not admissible inevidence unless it appears (1) that the declarant is dead, (2) that hewould be qualified as a witness to testify if present, and especially thathe had peculiar means of knowing the boundary, (3) that the statement wasmade before the controversy in suit arose, and (4) that he had no interestto misrepresent the truth in making the declaration. Mentz v. Greenwich,118 Conn. 137, 144, 171 A. 10 ; Borden v. Westport, 105 Conn. 139,149, 134 A. 803 [1926]; Turgeon v. Woodward, [supra,] 541 . . . ."(Internal quotation marks omitted.) Wildwood Associates, Ltd. v. Esposito,211 Conn. 36, 44, 557 A.2d 1241 (1989), quoting Putnam, Coffin & Burr, Inc.v. Halpern, supra, 154 Conn. 513; Rompe v. King, 185 Conn. 426, 428-429,441 A.2d 114 (1981).

[43 Conn. App. 14]

Each party produced an expert witness on this dispute.12 Therewas strongly conflicting evidence and it became the function of the trierof fact to determine credibility and, in doing so, it could "believe all,some or none of the testimony" of either expert. Dooley v. Leo,184 Conn. 583, 586, 440 A.2d 236 (1981); Bond v. Benning, 175 Conn. 308,312-13, 398 A.2d 1158 (1978); see 12 Am. Jur.2d, Boundaries, § 102.

The Turgeon court set out the four requisites of the hearsayexception, which has enjoyed vitality to the present. Immediately beforedoing so, however, it took pains to say: "`The law does not dispense withthe sanction of an oath and the test of cross-examination as a prerequisitefor the admission of verbal testimony, unless it discovers in the nature ofthe case some other sanction or test deemed equivalent for ascertaining thetruth.' Loomis, J., in South-West School District v. Williams,48 Conn. 504, 507 [1881]. Hence, in order to make such declarationequivalent in reliability and trustworthiness to the standard of ordinarytestimony when subjected to cross-examination, certain conditions wereattached to it as prerequisites to its admission." Turgeon v. Woodward,supra, 83 Conn. 541. Evidence that is properly admitted under thisexception, as it was in the trial court, is competent evidence for thetrier to consider and weigh with all the other evidence in the case.13

[43 Conn. App. 15]

Essentially, the defendant's claims here are, first, that the court'sdecision was incorrect, both as a matter of law and as a matter of fact, infinding that the division line between the property of the plaintiff andthe defendant was a stone wall and, second, that the court improperly foundthat the defendant removed stones that the plaintiff had placed to mark theboundary between their properties, while inconsistently finding that thestone wall was the boundary between them. We do not agree.

Both parties agree that the 1953 deed from Elizabeth to RichardKoennicke was ambiguous. That deed, stated as "containing 115 acres, moreor less," began its description of the property intended to be conveyed, as"beginning at the northwesterly corner of the within described tract at thejunction of land now or formerly of Eugene A. Roure, formerly the D.M.Deming place and the eastern side of Brook Road . . . ." This deed thendescribes the property back to the point on the east side of Brook Road asrunning along walls.14 In other words, although the deed refers tosome named abutters, throughout its description it refers to running alongwalls from beginning to end. It is the east-west boundary between theparties that is in dispute. The plaintiff and the defendant are atcounterpoint concerning the condition and nature of the stone wall thatfigures in the location of the east-west boundary. In his brief, theplaintiff maintains that "the parties agree that the property was notentirely surrounded by stone walls, as the literal description in the[ambiguous] deed indicated." This appears to be so. He also claims on thebasis of the credible evidence and the applicable law that certain barbed

[43 Conn. App. 16]

     wire fencing described in the evidence constituted the western boundarywith Roure, thus giving the attorney trial referee a "clear basis" toharmonize the ambiguity in the deed and to construe the calls for a stonewall as identifying the stone wall which traversed the two fields as thedivision line. This, he argues, is supported by the clear intention ofElizabeth as to whatshe intended to convey to Richard Koennicke in 1953 and what he fairlyunderstood he was receiving. The plaintiff appears to concede that theremay be a question on the initial call in the deed for a nonexistent stonewall "at the junction of land of Eugene A. Roure." He, however, arguesthat by reconciling the first call of this deed as being marked by barbedwire15 rather than by a stone wall, and by construing this call forthe Roure boundary as a monument, all the other monuments of the deed werethus harmonized and rendered consistent the remaining calls in the deed.

The defendant argues that the determination of the boundary line wasmade based on "fragmentary documentation" when it should have been based onacreage, as was the determination of his expert Charles Normandin. Thatexpert relied on the acreage set out in the deed in question because, as hesaid, that deed did not give "detailed courses and distances." Inaddition, arguing that only "remnants" of a stone wall still exist in thedisputed area, the defendant maintains that the use of them by theplaintiff's expert, Filip, to mark the plaintiff's northern boundary was

[43 Conn. App. 17]

     improper. In addition, he discredits the reliance on the evidence comingin on the location of the contested boundary under an unfavored hearsayexception. After indicating that he agrees that the deed involved isambiguous, he claims that the deed describes the boundary as beginning atthe northwest corner of the property, but in actuality, he argues, thestarting point is located at South Brook Road, which is on the south sideof the property.

Both parties offered expert testimony. The attorney trial refereecredited the evidence of Filip over that of Normandin. The attorney trialreferee found that the disputed east-west boundary line between theproperty of the parties was the "dashed line" depicted on the boundarysurvey prepared by Filip. That survey was the plaintiff's exhibit G.There was also other evidence from lay witnesses that supported thatconclusion.

Filip, in arriving at his determination of the location of theboundary, conducted a thorough investigation of Hampton land records as farback as the 1840s, including records of the location of various abuttersparticularly along Brook Road, which was the starting point for thedescription of the plaintiff's land in the 1953 deed to him from Elizabeth.In walking the area pointed out to him by the plaintiff as the boundary,Filip noted the presenceof strands of wire, some barbed and some not. The earliest strands werewithout barb, which he opined were of the vintage of the 1920s and 1930s.Other wire strands were plain wire without barbs that was of an oldervintage. This wire "fence," which involved wire on both sides of trees,followed a course that he opined, based on all the information available tohim, had been an east-west stone wall. He found remnants of that stonewall. In summary, the wire strands contained wire of at least threevintages, that of the type used for some years prior to the 1920s, someused in 1920s and 1930s and the newer thinner barbed wire, which started tobe used probably twenty years ago. He did not, however, find extensive

[43 Conn. App. 18]

     evidence of monumentation. He was able to do so when he started on SouthBrook Street where he depicted the boundary between the abutter Roure andthe plaintiff where "there's a partial wall — three or four strands ofwire there." This is part of his wire "fence." This anchors, with otherevidence, Roure as the abutter in that area. Adjacent land abutting may beused as a monument if the boundary of that adjacent land, as here with theabutter Roure, is fixed. Staff v. Hawkins, supra, 135 Conn. 319. Filip'ssurvey was prepared in accordance with Class A-2 survey standards.

On the other hand, Normandin never attempted to locate physicalmonuments in the field. Nevertheless, the defendant argues that becausethe deed involved was ambiguous, and the existing monuments "on the landbetween the parties [were] vague and unreliable," his expert "turnedinstead to the acreage call found in the deeds from Elizabeth . . . toRichard Koennicke." In his acreage call analysis, he examined three deedsconveying land to one Ebenezer Burnham during the early 1800s, enabling himto construct a 225 acre parcel from which the plaintiff's acre parcelconveyed by Elizabeth to William Koennicke (the predecessor of thedefendant) was cut. In doing so, he did not integrate into his analysiswhether his conclusion was at all affected by some forty-three othertransfers of real estate in Hampton by Ebenezer Burnham as grantor between1828 and 1878. Normandin's survey was prepared in accordance with Class Dsurvey standards.

There was also further evidence indicating the intention of theparties of the 1953 deed from Elizabeth to Richard Koennicke to convey thefield south of the stone wall that separated the two fields. As pointedout, that deed did contain references to some stone walls that no longerexist. Filip, however, in using historical evidence, principally the

[43 Conn. App. 19]

     barbed wire fencing, was able to establish the boundary line that tracksthe calls set out in this deed and does not ignore any of those calls.Again, it is to be remembered that that boundary concerns only theeast-west line between the parties.

Prior to her 1953 conveyance to Richard Koennicke of this southernparcel, Elizabeth owned the entire property, i.e., the acreage north andsouth of the stone wall. Before she conveyed the southern portion (nowowned by the defendant), she identified the stone wall between the twofields as the boundary line and sheoffered to sell it to her brother, Kurt G. Koennicke,16 telling himthat if he did not buy it she was going to convey it to their uncle,Richard Koennicke, to satisfy her debt to him. Kurt himself testified thatElizabeth did offer to sell it to him and that at that time Elizabethpointed out to him that the stone wall between the two fields was theboundary line. He also said "all the rest of it was what she gave back toUncle Richard for [the] nonpayment of that $1500 . . . ." After herreconveyance to Richard Koennicke,17 Elizabeth acknowledged, on morethan one occasion, this stone wall dividing the larger field from thesmaller field as the boundary line between her property that she hadretained. Before the plaintiff purchased his land from his uncle, RichardKoennicke, he walked the boundary line with his uncle, who indicated to himthat he was conveying to the plaintiff the land south of the stone walldividing the two fields. Elizabeth did not utilize the land to the southof the stone wall after the plaintiff purchased it. When Elizabeth waslooking for usable gravel deposits on the land she retained, she causedtest holes to be dug for that purpose, and although such test holes camevery close to the stone wall boundary, they were never located south ofthat stone wall. Such statements and conduct by Elizabeth during her

[43 Conn. App. 20]

     lifetime18 are evidence of her intention with regard to her 1953 deedto Richard Koennicke. They are of the nature of admissions. Putnam,Coffin & Burr, Inc. v. Halpern, supra, 154 Conn. 513; DiMaggio v. Cannon,165 Conn. 19, 327 A.2d 561 (1973); Turgeon v. Woodward, supra,83 Conn. 543-44; Apostles of the Sacred Heart v. Currott, supra,187 Conn. 599. The same observation applies to her grantee, RichardKoennicke, who, during his lifetime had no dispute with Elizabeth over thestone wall constituting the boundary between the land she deeded to him andthe land she retained at that time.

The plaintiff, now in his late sixties, testified that he was familiarwith the property when it was entirely owned by his uncle. This familiaritystarted when he was under ten years of age and he began to help his fatherand his uncle maintain stone walls, put up new wire, build barways and thelike. He was familiar with the boundary on an abutting parcel, and withthe disputed east-west boundary and the wire fence in issue. He walked itwith his father and uncle and later with Filip as the video was made. Heagreed with the boundary line as drawn by Filip between the two fields.His credibility was for the trier to determine.

Conduct of the defendant is also properly considered on this issue andit avails the plaintiff. In June, 1980, the defendant contracted with theRossi Corporation to log his land and thatcontract called for logging only north of the stone wall between the twofields. That contract covered his parcel, which was estimated to be 100acres. At the time of the Rossi contract, the defendant placed his land inforestry classifications setting out his total acreage as 100 acres. It isworth noting that with the stone wall between the two fields as theboundary, the defendant's land totals approximately 100 acres. Moreover,

[43 Conn. App. 21]

     at least since the time of the Rossi contract, the defendant has paid taxeson 100 acres and no more.

One more claim of the defendant on the boundary issue meritsdiscussion. He claims that certain findings of the attorney trial refereeare inconsistent and, therefore, clearly erroneous. See Stamford v. Kovac,36 Conn. App. 270, 274-75, 650 A.2d 626 (1994).19 The claim is thata fatal inconsistency exists between the finding that the boundary linebetween the land of the plaintiff and that of the defendant was the stonewall as depicted on the dashed line on Filip's boundary survey while at thesame time also finding that "the defendant removed stones the plaintiffplaced at another location to make his [the plaintiff's] boundary."20He says, without more, that the attorney trial referee "cannot consistentlymake the finding that the remnants of a stone wall [between theirproperties] was the boundary line and at the same time conclude that theboundary was somewhere else." We do not agree with the defendant.

The plaintiff testified that a stone wall was the division linebetween his land and that of the defendant. He also said that there werebarways in that wall that permitted access to the fields to the north andsouth of that wall. He placed stones in those barways21 attempting

[43 Conn. App. 22]

     to block them so as to inhibit the defendant'strespasses on his land south of that wall. The defendant, however,bulldozed "the rocks way out into his own field." This happened on anumber of occasions. These stones, so placed by the plaintiff in hisbarways, served to underscore the plaintiff's claim that, thus placed, theyserve as evidence of his boundary. The defendant, by wrongfully bulldozingthem elsewhere, cannot change that.

We conclude here that the trial court's adoption of the attorney trialreferee's findings was not clearly erroneous. We conclude on the quiettitle issue that the attorney trial referee properly determined that "theboundary of the plaintiff and the defendant is the dashed line depicted byStephen A. Filip on his boundary survey, Exhibit G."

II

Next, we turn to the defendant's claim that the trial court could notproperly find criminal trespass in this civil action because it lackedjurisdiction to do so. The trial court found that the defendant's actionsconstituted criminal trespass in violation of Connecticut General Statutes§ 53a-107.

Section 52-560 provides that any person who cuts, destroys or carriesaway any trees standing on the land of another "without the license of theowner" shall pay to the injured party three times the reasonable value ofsuch trees. Where, however, the court is satisfied that the defendant "wasguilty through mistake and believed that the tree[s] . . . w[ere] growingon his own land" then the court shall render judgment for no more than

[43 Conn. App. 23]

     their reasonable value. In this case, it was found that although thedefendant was aware that the plaintiff has claimed the disputed area as hisown since 1963, he took no action. Despite this knowledge and hisacquiescence, by his conduct, for many years in apparent recognition of theplaintiff's title, the defendant did later enter the plaintiff's propertyand, since November 1988, has cut approximately 100 trees with a combinedvalue of $4000.22

In her memorandum of decision, the attorney trial referee said,"Plaintiff is entitled to $12,000 in damages on count 2." Immediatelythereafter, her memorandum of decision states: "This court would haverecommended an award of attorney's fees for trespass however no evidence ofan appropriate award was provided. However, in view of defendant's threatsto plaintiff there is justification to award heightened damages.Accordingly, plaintiff's damages should be increased by half to $18,000."

Thereafter, the trial court accepted the report of the attorney trialreferee. The court also ordered as adopted her memorandum of decision"except for the award of punitive damages in Count III. See Chykirda v.Yanush, 131 Conn. 565, 569 [41 A. 449] (1945)." The court's order went onto state: "Judgment is entered in favor of the plaintiff as to Count 1establishing title to the disputed premises by deed; as to Count 2 in theamount of $12,000; and, as to Count 3 that a trespass has been committed bythe defendant. Judgment is entered in favor of the defendant as to Count 4. . . ."23

[43 Conn. App. 24]

The plaintiff's complaint alleges that the "[d]efendant's actionsconstitute criminal trespass in violation of ConnecticutGeneral Statutes Section 53a-107." That section of the statutes, as thedefendant properly points out, is a criminal statute which defines"Criminal Trespass in the First Degree and is classified as a Class Amisdemeanor."24 It is the most serious degree of the crime oftrespass. The defendant argues that because the attorney trial referee wasbeing asked in this case to hear and decide a civil matter, she did nothave subject matter jurisdiction to hear a criminal charge and that "thetrial court clearly erred as a matter of law in considering the claim forcriminal trespass."25

In arguing that the attorney trial referee and the trial courterroneously sought to exercise criminal jurisdiction, the defendant alsopoints out that he was not under arrest for criminal trespass, and that thetrial court presumptively used the incorrect standard of evidence indetermining his guilt under this criminal statute. We agree. The trialcourt and the attorney trial referee did not have jurisdiction to hearand decide that claim.26

[43 Conn. App. 25]

The fact remains that the trial court rendered judgment "as to count 3that a trespass had been committed by the defendant . . . ." Its"judgment" as to count 3 was, as the defendant claims, "rendered" withoutjurisdiction. Our Supreme Court has said: "As applied to a court, theword `jurisdiction' means the power to hear and determine a cause." Samsonv. Bergin, 138 Conn. 306, 309, 84 A.2d 273 (1951); LaReau v. Reincke,158 Conn. 486, 492, 264 A.2d 576 (1969); Brown v. Cato, 147 Conn. 418, 422,162 A.2d 175 (1960). "It is well established that a court is without powerto render a judgment if it lacks jurisdiction and that everything done underthe judicial process of courts> not having jurisdiction is, ipso facto,void. Martin v. Hunter's Lessee, 14 U.S. (1 Wheat.) 304, 364 (1816);Marshall v. Clark, 170 Conn. 199, 205, 365 A.2d 1202 (1976); Clover v.Urban, 108 Conn. 13, 17, 142 A.2d 389 (1928)." Chrysler Credit Corp. v.Fairfield Chrysler-Plymouth, Inc., 180 Conn. 223, 229, 429 A.2d 478 (1980)(Loiselle, J. concurring).27 The trial court's judgment on the thirdcount was void on its face. Clearly, there was no subject matterjurisdiction. "A judgment void on its face and requiring only aninspection of the record to demonstrate its invalidity is a mere nullity,in legal effect no judgment at all, conferring no right and affording nojustification . . . . It neither binds nor bars anyone. All acts performedunder it and all claims flowing out of it are void. The parties attemptingto enforce it may be responsible as trespassers." 1 A. Freeman, Judgments

[43 Conn. App. 26]

     (5th Ed. 1925) § 322. A void judgment "is without life and will be ignoredeverywhere." Southern New England Telephone Co. v. Public UtilitiesCommission, 165 Conn. 114, 123, 328 A.2d 695 (1973); see 46 Am. Jur.2d,Judgments § 31. "A court is without power to render a judgment if itlacks jurisdiction of the parties or of the subject-matter, one or both. Insuch cases, the judgment is void, has no authority and may be impeached."O'Leary v. Waterbury Title Co., 117 Conn. 39, 43, 166 A. 673(1933); Krueger v. Krueger, 179 Conn. 488, 493, 427 A.2d 400(1980). It is concluded that the trial court improperly rendered judgmenton the third count; that judgment of trespass was, and is, void.

Despite our conclusion that the judgment of trespass rendered on thethird count is void, further discussion of it is necessary because of theeffect of it claimed by the parties as to the second count. The defendantcontends that because the only "explicit finding of trespass was maderegarding criminal trespass" and because "no penalty was imposed forviolation of § 53a-107, the only purpose for a finding of criminal trespasswas for use in finding a violation of the tree cutting statute [§ 52-560]."He further argues that "[t]herefore, the use of the wrongful determinationof a criminal trespass to establish a violation of the tree cutting statuteis fatal to the finding of a wrongful tree cutting." The plaintiff, inanswering the defendant's claim that a finding of criminal trespass cannotbe made in a civil action, says that that claim is "ill-founded andmisconstrues both the plaintiff's complaint and the ruling" by the attorneytrial referee. In doing so, the plaintiff concedes that his complaintalleged a claim that the actions of the defendant were wilful and withoutbasis "since they constituted violations of the standards established by. . . Section 53a-107," but argues that he did not seek criminal sanctions,and the attorney trial referee did not presume to impose criminal

[43 Conn. App. 27]

     sanctions. Moreover, he argues that the third count was proper both as toa claim for damages for trespass and to a claim for punitive damages forthe wrongful cutting of trees. The plaintiff maintains that, in claimingpunitive damages, a plaintiff must clearly allege wilful and egregiousconduct of the defendant in order to justify the imposition of punitivedamages. Therefore, he claims that the allegation that the defendant'sactions were "the equivalent of criminal trespass in the first degree is afactual pleading that the actions were willful and egregious and couldtherefore be the basis of the imposition of punitive damages under [GeneralStatutes] § 52-560." While he concedes that he seeks "damages and punitivedamages" arising out of his claim as to the third count vis-a-vis thesecond count, the plaintiff nevertheless urges that he "sought no criminalsanction" and the trial court imposed no such sanction on the defendant.

However much the plaintiff appears to distance himself from "the nocriminal sanctions were sought or imposed" aspect of the judgment on thethird count, at the same time, he adopts the finding by the attorney trialreferee and the judgment of the trial court of trespass on that count, andin doing so he disingenuously maintains that the trial court improperlyrejected the attorney trial referee's recommended award of damages fortrespass. This whole controversy swirls around the award by the attorneytrial referee of the $6000 of "heightened damages." Pointing out thatthe attorney trial referee concluded that "in view of the defendant'sthreats to the plaintiff there is justification to award heighteneddamages."28 He contends that he is entitled to the $6000 "enhanced

[43 Conn. App. 28]

     damages" award.29 In granting the "heightened" damages, theplaintiff claims that the attorney trial referee was "merely making anappropriate damages award for the consequence of defendant's trespasses."The trial court refused to approve the attorney trial referee's award of"common law punitive damages" as recommended in the attorney trialreferee's memorandum of decision.

The plaintiff's drawing on § 53a-107 is somewhat disingenuous. Heargues, on the one hand, that it is in the case only to permit theestablishment of the elements of a criminal trespass in order to providethe basis for finding that egregious conduct that he admittedly wants touse, and the attorney trial referee did use to justify the "heightened"damages. Yet, selectively, he says that there has been no criminalsanction imposed under § 53a-107, nor did he ask for any. He does notoffer any authority30 to support

[43 Conn. App. 29]

     his contention that this criminal statute, a first class misdemeanor, mayproperly be pleaded and employed here as he claims. Pleading it as hedoes, as a separate count, as a separate cause31 of action, on whicha judgment of trespass was "rendered" by the trial court which he accepted,the plaintiff cannot now insist that he is entitled to draw on the thirdcount to support the "heightened damages" award of $6000 and otherwise todisavow the overt criminal character of § 53a-107.

Moreover, the plaintiff's argument, that we should adopt his claimthat he is entitled to "enhanced civil damages" because of his claim thatthere are many circumstances in which allegations of a statute which is"criminal in nature" may be made to establish entitlement to "enhancedcivil damages," is wholly unpersuasive in this case. The tree cuttingstatute does "not give a new and independent cause of action," butprescribes "the measure of damages in cases where compensatory damageswould, in the absence of the statute, be recoverable." Avery v. Spicer,90 Conn. 576, 583, 98 A. 135 (1916). In providing for damages in excess ofactual damages, the amount "is assessed with reference to the degree of thedefendant's culpability." See Cristilly v. Warner, 87 Conn. 461, 469,88 A. 711 (1913) (Beach, J., dissenting). Our Supreme Court hasindicated its recognition that the damages provision of the tree cuttingstatute does contain considerations of the culpability aspect of thedefendant's conduct. In Banks v. Watrous, 134 Conn. 592,600, 59 A.2d 723 (1948), it said: "The statute, like others inthe statute book which provide damages for wrongful conduct in excess ofthose ordinarily recoverable, is not a penal statute . . . it affords thebasis of a civil action in which the

[43 Conn. App. 30]

     damages, `assessed because of and with reference to the degree of thedefendant's culpability may be, and generally are, compensatory in theirnature, although they embrace injuries or expenses not included in strictlegal damages.'" See Doran v. Rugg, 22 Conn. Sup. 189, 193, 164 A.2d 859(1960) (House, J.). The place of culpability in the calculus of damagescomes in only where the defendant has not sustained his burden of proof onthe matter of the statutory provision for mitigation of mistake. See Doranv. Rugg, supra, 192, 193. It becomes evident that § 52-560 has built intoits provision for treble damages, "increased"32 damages over"actual damages sustained" that invokes the culpability aspect of thedefendant's conduct.

III

Having discussed certain interaction between the first and secondcounts from the perspective of damages, we now turn directly to the secondcount, which is brought under § 52-560. In addition to what we havealready said about § 52-560, we point out the following considerations.

[43 Conn. App. 31]

     Since trespass is a possessory action, it is necessary for the plaintiff toprove possession, actual or constructive, to prevail. Wadsworth Realty Co.v. Sundberg, 165 Conn. 457, 461, 338 A.2d 470 (1973); More v. Urbano,151 Conn. 381, 383, 198 A.2d 211 (1964). This, the plaintiff has done. "Toescape the imposition of treble damages, it was incumbent upon [thedefendant] to prove not only mistake but the further . . . affirmativebelief that the timber was growing on his own land." Doran v. Rugg, supra,22 Conn. Sup. 195. This, the defendant did not do. The mistake, ofcourse, that is necessary to resist successfully the imposition of trebledamages under the statute must be an honest mistake and belief. SeePetroman v. Anderson, 105 Conn. 366, 371, 135 A. 391 (1926); Doran v.Rugg, supra, 194.

We have determined that the plaintiff cannot draw at all on the thirdcount in any fashion to aid him in his claims, especially for damages,which he makes for enhanced or heightened damages under the second count.Nevertheless, he claims that there is authority to permit such damages,over and above the treble damages of $12,000 awarded to him under § 52-560.Arguing that such venerable cases as Hart v. Brown, 2 Root (Conn.) 301(1795), and Edwards v. Beach, 3 Day (Conn.) 447, 450 (1809), alloweddamages for malice and insult as well as actual loss in trespass action, hemaintains that the same should be done here. Those cases are easilydistinguishable as neither involved tree cutting and there was such astatute in those days. Moreover, he offers no analysis as to why suchdamages should be allowed when § 52-560 does not provide for them althoughthe legislature has included in the treble damages provision a culpabilityfactor over and above actual loss. See Banks v. Watrous, supra,134 Conn. 600; Avery v. Spicer, supra, 90 Conn. 583;Doran v. Rugg, supra,

[43 Conn. App. 32]

     22 Conn. Sup. 193. Moreover, "[w]hen a cause of action has been created bya statute which expressly provides the remedies for vindication of thecause, other remedies should not readily be implied." FleischmannDistilling Corp. v. Maier Brewing Co., 386 U.S. 714, 720, 87 S.Ct. 1404,18 L.Ed.2d 475 (1967); Getty Petroleum Corp. v. Bartco Petroleum Corp.,858 F.2d 103, 112 (1988). The ability to provide for such damages under§ 52-560, as the plaintiff claims here, is a matter for the legislature.As the Supreme Court said in a case where attorney's fees were providedunder certain provisions of a statute and not elsewhere in that statute:"To put it simply, when the General Assembly wanted to authorize the awardof attorney's fees it knew how to do it."33 Chrysler Corp. v. Maiocco,209 Conn. 579, 593, 552 A.2d 1207 (1989); Marsh, Day & Calhoun v. Solomon,204 Conn. 639, 652-53, 529 A.2d 702 (1987). We conclude that the trialcourt properly rendered judgment for the plaintiff in the amount of$12,000.

The judgment is reversed only as to the finding of criminal trespasson the third count, and the case is remanded with direction to renderjudgment as on file except as modified to eliminate that finding.

1. The fourth count, which alleges a cause of action in adversepossession, is not involved in this appeal.

2. General Statutes § 52-560, which is entitled "Damages for cuttingtrees, timber or shrubbery," provides: "Any person who cuts, destroys orcarries away any trees, timber or shrubbery, standing or lying on the landof another or on public land, without license of the owner, and any personwho aids therein, shall pay to the party injured five times the reasonablevalue of any tree intended for sale or use as a Christmas tree and threetimes the reasonable value of any other tree, timber or shrubbery; but,when the court is satisfied that the defendant was guilty through mistakeand believed that the tree, timber or shrubbery was growing on his land, oron the land of the person for whom he cut the tree, timber or shrubbery, itshall render judgment for no more than its reasonable value."

3. General Statutes § 53a-107, which is entitled "Criminal trespass inthe first degree: Class A misdemeanor," provides: "(a) A person is guiltyof criminal trespass in the first degree when: (1) Knowing that he is notlicensed or privileged to do so, he enters or remains in a building or anyother premises after an order to leave or not to enter personallycommunicated to him by the owner of the premises or other authorizedperson; or (2) he enters or remains in a building or any other premises inviolation of a restraining order issued pursuant to section46b-15 or a protective order issued pursuant to section 46b-38c by thesuperior court; "(b) Criminal trespass in the first degree is a class A misdemeanor."

4. The attorney trial referee also viewed the land involved.

5. One commentator has noted that the report to be filed with the trialcourt under Practice Book § 434 "may, but need not, include a memorandum ofdecision." W. Moller & W. Horton, 1 Connecticut Practice, Practice BookAnnotated, p. 635.

6. The defendant's "Objection to Acceptance of Report" set out thefollowing: "(1) The report finds as a fact a boundary line whichdisregards the acreage called for in the deed, which was made an exhibit attrial. Exhibit `C.' Nichols v. Turney, 15 Conn. 101, 108 [1842]. (2)Although the Referee found that the deed was ambiguous (Paragraph 9) shebased other findings upon a portion of the admittedly ambiguousdescription, while ignoring other portions of said deed description. (3)The Memorandum of Decision incorrectly applies the law to the factsfound."

7. The plaintiff's parcel, which is on the east side of Brook Road,extending south from Clarks Corner to the town of Scotland, was acquired byhim by a deed from Richard Koennicke, dated February 6, 1960, and it isdescribed as follows: "All that certain piece or parcel of land situated inthe southwesterly part of the Town of Hampton, County of Windham and Stateof Connecticut, on the easterly side of the Brook Road, so called, leadingsoutherly from Clarks Corners to the Town of Scotland and bounded anddescribed as follows: Beginning at the northwesterly corner of the withindescribed tract at the junction of land now or formerly of Eugene A. Roure,formerly the D. M. Deming place, and the easterly side of the said BrookRoad, thence the line runs easterly along a stone wall by land now orformerly of Eugene A. Roure, to a corner of walls; thence the line runsnortherly along the wall, bounded westerly by land now or formerly ofEugene A. Roure to a corner of walls and by land now or formerly ofElizabeth Koennicke Maiorano, thence the line runs easterly along the walland land now or formerly of Elizabeth Koennicke Maiorano to a corner ofwalls and to land of persons unknown, thence the line runs southerly by awall and land of persons unknown to a corner of walls; thence the line runseasterly along a wall to a corner of walls and land of persons unknown;thence the line runs southerly along a wall to a corner of walls and landof persons unknown; thence the line runs westerly to Brook Road along awall and land now or formerly of Philitus Farnham, Dwight Carey and others;thence the line runs northerly along the easterly side of Brook Road to thepoint or place of beginning, containing 115 acres, more or less."

8. The defendant's parcel came to him through a certificate of devise in1981 and it is described as follows: "A certain piece or parcel of landwith the buildings thereon, situated in the southwesterly part of the Townof Hampton, County of Windham and State of Connecticut bounded anddescribed as follows: bounded north by land now or formerly of Mr. Neff,Allen Jewett, William and Marina Bennett and others; easterly by land nowor formerly of said Allen Jewett, Bennett, Darias Shippe, land belongingto the Peter Fetherstone estate and others; southerly by land formerly ofPhilitus Farnham, Dwight Carey and other; west by the highway leading fromthe house formerly of D. M. Deming to Scotland; also west by land now orformerly of said Deming, land formerly of Mr. Hyde and land of said Shippeand other. Excepting parcel conveyed to Richard Koennicke in Volume WPage 123 on May 13, 1953."

9. This concerns the circumstance that not all of the stone wall orwalls referred to in the deed are now in existence.

10. Stephen A. Filip was a land surveyor retained by the plaintiff, whodrew a boundary map based on his investigation and who also testified as anexpert at the trial of this action.

11. The defendant argues that this exception to the hearsay rule is notfavored. Years ago, our Supreme Court, in synthesizing earlier decisionson this exception, said in Turgeon v. Woodward, supra, 83 Conn. 540-41,that "[i]n some instances exceptions to this rule have grown up throughnecessity, from the knowledge that the only alternative is the practicalabandonment of all attempt to prove certain kinds of facts unless thehearsay barrier is let down, and in the established and general knowledgethat the great majority of human affairs are more or less affected by areliance upon hearsay without imperilling their trustworthiness, or theirefficiency and safety. Swift's Evidence, 121. Murray v. Supreme Lodge,74 Conn. 715, 718, 52 [A.] 722 [1902], furnishes an example of an exceptionto the hearsay rule, based upon necessity. Necessity alone could not havesecured these exceptions to the hearsay rule, unless had been ableto see that, with the adoption of certain safeguards as conditionsprecedent to the reception of such evidence, reliance might be placed uponit as reasonably to be trusted. In such way the law uses, in many cases,the only available evidence, and the truth benefits by its use."

12. The plaintiff's expert was Steven Filip and the defendant's expertwas Charles Normandin. Both were licensed land surveyors and each prepareda map showing where each determined the disputed boundary was located.Both maps became exhibits in the case.

13. Upon our examination of the record before us, we note that in anumber of instances the defendant contends that certain matters disclosedby the evidence are "facts" supporting his claims. It is apparent that anumber of these claims involved issues of credibility and were resolvedagainst him. Nothing, of course, "`is more elementary than that the trieris the final judge of the credibility of witnesses and of the weight to beaccorded their testimony.'" Wildwood Associates, Ltd. v. Esposito, supra,211 Conn. 45. "We will not intrude upon this province unless thefacts found are legally and logically inconsistent with the trial court'sconclusion." Id.

14. This deed refers to "a stone wall," "the wall," "a corner of walls,""along the wall" and "along a wall." We follow counsel, who at trial,treated this parcel as being enclosed by a stone wall in its entiretyinsofar as the description in this deed is concerned. We will dispose ofthe case on the theory on which is was tried and on which the trial courtdecided it. Borzencki v. Estate of Stakum, 195 Conn. 368, 375,489 A.2d 341 (1985); Crozier v. Zaboori,14 Conn. App. 457, 463, 541 A.2d 531(1988).

15. There was in evidence before the attorney trial referee as anexhibit and in the record before this court a video of the plaintiff as hetraverses the boundary line involved in this case. A viewing of it isilluminating as to the condition and claimed location of the stone wall inquestion, barbed wire, barways, location of trees allegedly cut by thedefendant as well as stones allegedly moved by the defendant. The video isparticularly helpful in actually portraying the remnants of the stone wallreferred to in the ambiguous deed as well as its proximity to the barbedwire fences referred to in the evidence.

16. Kurt G. Koennicke is deceased but his deposition was read at thetrial.

17. Richard Koennicke died over twenty years ago.

18. Elizabeth died sometime prior to June 1980.

19. "`In addressing a challenge to the facts found by the trial refereeand adopted by the trial court, this court's function is to determinewhether those findings were clearly erroneous. Practice Book § 4061.Because the resolution of conflicting factual claims falls within theprovince of the trial court, we can reverse the judgment only if thefindings are clearly erroneous.'" Stamford v. Kovac, supra,36 Conn. App. 274-75.

20. Actually, this finding as made by the attorney trial referee wasthat "the defendant removed stones plaintiff placed to mark the boundaryline."

21. The video in evidence of the stone wall and the wire fence isparticularly helpful. It shows a stone wall for some of the length of theboundary line with several barways in that portion of the wall stillextant. The remaining portion of the wall, the plaintiff states, "might becharacterized as a `remnant.'" The defendant has referred to what is saidto be the stone wall as "fragmentary monumentation." In any event, on allthe evidence, Filip's analysis together with the supporting evidencealready set out shows that Filip's placement of the boundary line wasproperly found by the attorney trial referee and the trial court to havebeen proven. No matter what the condition of the stone wall or how much ofit is no longer physically extant, it is clear that the plaintiff neverbuilt any part of it.

22. In addition to these findings in her report, the attorney trialreferee, in her memorandum of decision, points out that "there is nothingin evidence which lends credence to the possibility that [the defendant]unequivocally thought the land was his." (Emphasis added.)

23. The attorney trial referee's memorandum of decision states: "Sincedefendant continued to enter the disputed portion despite plaintiff'sattempts to keep him out directly and through counsel, defendant's conductis a violation of C.G.S. Section 53a-107." The trial court renderedjudgment "as to count 3 that a trespass has been committed by the defendant. . . ."

24. General Statutes § 53a-26 entitled "Misdemeanor: Definition,classification, designation," provides in relevant part: "(a) An offensefor which a person may be sentenced to a term of imprisonment of not morethan one year is a misdemeanor. "(b) Misdemeanors are classified for the purposes of sentence asfollows: (1) Class A, (2) class B, (3) class C and (4)unclassified. . . ."

25. In arguing that the attorney trial referee and the trial courterroneously sought to exercise criminal jurisdiction, the defendant alsopoints out that he was not under arrest for criminal trespass and that thetrial court presumptively used the incorrect standard of evidence indetermining his "guilt" under this criminal statute.

26. The defendant claims that this issue is moot unless the cross appealis sustained, since the trial court rejected the attorney trial referee'saward of "enhanced damages." The defendant apparently misperceives thedoctrine of mootness. "An issue is moot when the court can no longer grantany relief." Ivimey v. Watertown, 30 Conn. App. 742, 754, 622 A.2d 603,cert. denied, 226 Conn. 902, 625 A.2d 1375 (1993); see Shays v. LocalGrievance Committee, 197 Conn. 566, 571, 499 A.2d 1158 (1985). The thirdcount, concerning which jurisdiction in this case never existed, couldnever be the source of granting relief. See 1 A. Freeman, Judgments (5thEd. 1925) § 321. Moreover, no valid argument can be made making thejurisdictional issue on the third count in any way contingent upon thesustaining or overruling of the cross appeal as the plaintiff claims.

27. The Restatement (Second), Judgments § 11, comment (a) (1982),states: "The rules of subject matter jurisdiction of a court are generallyprescribed by the political authority that created the court . . . .Questions of subject matter jurisdiction are therefore matters of organiclaw of the government involved, state or federal . . . ."

28. The plaintiff, in his brief, refers to the heightened damagesrecommended by the attorney trial referee as "enhanced" damages. Theattorney trial referee never used the term "enhanced damages" in either herfinding or her memorandum of decision.

29. The attorney trial referee, who cited no legal authority for heraward of the $6000 of "heightened damages," arrived at that figure by"increasing" by half the $12,000 award on the second count to $18,000.

30. The plaintiff, speaking of "enhanced civil damages," says that thereare many circumstances where "allegations of violation of a statute whichis criminal in nature may be made to establish entitlement to enhancedcivil damages. "By way of example he cites General Statutes §§ 14-295 and52-564. The former statute does provide that the trier of fact may awarddouble or treble damages where the defendant has operated a motor vehicle"deliberately or with reckless disregard" in violation of any of ninespecific statutes set out in § 14-295. The latter statute provides for thepayment of treble damages against any person "who steals any property ofanother or knowingly receives and conceals stolen property . . . ." Thereare other statutes that allow the recovery of double or treble damages inaddition to compensatory damages by specifically so stating that in thestatute. Such statutes include General Statutes §§ 52-565, 52-570, 52-566,52-567, 52-568, 52-569, 52-560 and 47a-46. These are statutes thatspecifically use the words "punitive damages" in awards authorized by suchstatutes. See §§ 31-290a, 52-240b. The plaintiff, however, has not pointed to any statutory authorityfor the awarding of "heightened" damages where the statute involved alreadycontains, as does § 52-560, for damages over and abovecompensatory damages and where the trebling of his compensatory damages hasalready been adjudged. Simply, the plaintiff's actual loss was found to be$4000 but because of the circumstances, the attorney trial refereerecommended and the trial court ordered judgment for $12,000 on the secondcount, thus giving him the maximum recovery which was provided for under§ 52-560.

31. See Practice Book § 138.

32. The plaintiff makes reference to the $6000 award as "enhanced"damages. His analysis as to just how "enhanced damages" is to be definedis lacking. We do note, however, that , when addressing the doubleor treble damage statutes, have referred to such damages as involving"statutorily enhanced damages." See Avis Rent A Car System, Inc.v. Liberty Mutual Ins. Co., 203 Conn. 667, 671, 526 A.2d 522 (1987);Caulfield v. Amica Mutual Ins. Co., 31 Conn. App. 781,785, 627 A.2d 466, cert. denied, 227 Conn. 913, 632 A.2d 688 (1993).The environmental statutory scheme permits the recovery of "[statutorily]enhanced damages." See General Statutes § 22a-451 (a), allowing damagesequal to "one and a half times the costs and expenses incurred," and incertain circumstances "two times the costs and expenses" incurred by thedepartment of environmental protection in handling certain types ofenvironmental law violations, and Connecticut Resources Recovery Authorityv. Refuse Gardens, Inc., 229 Conn. 455, 457, 642 A.2d 697 (1994). We have already decided that the void nature of the judgment of thetrial

33. The plaintiff has not demonstrated any persuasive reason for notfollowing "[t]he general rule of law known as the American rule . . . thatattorney's fees and ordinary expenses and burdens of litigation are notallowed to the successful party absent a contractual or statutoryexception." (Citations omitted.) Chrysler Corp. v. Maiocco, supra,209 Conn. 590.

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