Opinion
No. CV 08 4032923S
September 6, 2011
MEMORANDUM OF DECISION RE MOTION TO DISMISS FOR LACK OF PRIMA FACIE CASE P.B. § 15-8
I BACKGROUND
Scott Hurlburt, the plaintiff, brought this action in five counts against the defendants, Scott DeRosa, Carl DeRosa and Patricia DeRosa, seeking damages and injunctive relief based on allegations of intentional or negligent obstruction of the plaintiff's drainage easement, nuisance, trespass and breach of covenant. The plaintiff also seeks a judgment to quiet title. The case was tried before the court on April 5, 6 and 26, 2011. During his case-in-chief, the plaintiff withdrew his nuisance claim as well as relief of traditional damages because he acknowledged that there was no harm or actual damages. After the plaintiff rested, the defendants orally moved for judgment of dismissal in their favor on the ground that the plaintiff failed to establish a prima facie case pursuant to Practice Book § 15-8. More specifically, the defendants argued that because this is essentially a case in tort, the plaintiff failed to prove his case since he did not present any evidence of current or imminent harm. No further evidence was presented and the parties agreed to submit post-trial briefs by May 24, 2011 and reply briefs by June 7, 2011.
II FACTS
If believed, the court accepts the following facts as true, and interprets said facts in the light most favorable to the plaintiff, Scott Hurlburt. The plaintiff purchased his property on or about March 14, 1994. The plaintiff's property is described in his deed as lot #123 and a portion of lot #124, known as 888 Indian Hill Road. The plaintiff's deed conveyed lot #123 and a portion of lot #124 and contained the following language which is relevant to the issues before this court: "Together with an agreement contained in a deed from Harry B. Cook to Cullen B. Snell, dated July 6, 1937, and recorded in Volume 148, Page 520 of the Orange Land Records." (Plaintiff's Ex. 1.) The deed from Harry B. Cook to Cullen B. Snell, dated July 6, 1937 which conveys lot #133 and which is Indian Hill Road and Dogburn Road (Plaintiff's Ex. 26) contains the following agreement which is the subject of this litigation: "It is hereby understood and agreed between the parties hereto and their respective heirs and assigns, that within a reasonable time they shall cooperate in opening the natural watercourse extending over the piece hereby conveyed so as to drain any surface water from Lots Nos. 123 and 124 shown on said Map, and in maintaining said watercourse to so drain said Lots." Emphasis added. As previously stated lots #123 and #124 are owned by the plaintiff. Lot #133, which is the property that is the subject of the agreement contained in the deed from Harry B. Cook to Cullen B. Snell is owned by the defendants. Lot #133 was conveyed to the defendants, by warranty deed on May 22, 2000 and does not recite the agreement contained in the deed from Harry B. Cook to Cullen B. Snell.
At the time the plaintiff purchased his property, there was a pronounced "swale" or dip in the grade that ran from the northern portion of [the plaintiff's] lot all the way along the western boundary and north of the defendants' property. The plaintiff's property was located northerly of the defendants' and surface flow of water was northerly to southerly/southwesterly across the plaintiff's property and across and through defendants' property and properties southerly of defendant's property until deposited through the municipal drainage system into water company property. In 2005, the plaintiff had some material brought in by a professional contractor to recontour his yard in order to take some of the pitch out of it but not to eliminate the pitch. The contractor brought in about 100 yards of fill and in addition to eliminating some of the pitch out of the swale, the plaintiff raised the elevation slightly at the back of his yard with stones to make a one and one half foot deep hole referred to as the "Hurlburt hole." This Hurlburt hole is at the southerly edge of the plaintiff's property near the boundary line of the plaintiff's and defendant's properties. On various other occasions, the plaintiff connected his leaders and gutters to a diagonal underground 12" drainage pipe or reinforced concrete pipe (RCP) which runs northeasterly to southeasterly across his property. This pipe into which water from the plaintiff's gutters and leaders deposit, and water from the plaintiff's modified swale, all deposit into the "Hurlburt hole."
In 2007, the defendants regraded the backyard area on lot #133, by depositing 100-200 cubic yards of fill. Prior to the depositing of the material in the rear portion of lot #133, the land sloped generally down hill in a southerly direction away from the plaintiff's property and across lot #133. The purpose of bringing in the fill was to level out the defendants' backyard. Some of the ground surfaces were raised and some were not. The high points were not raised and the low points were raised. In other words, less material was deposited where the high points were and more was deposited where the low points were. More material was placed in the lower sections of the yard than in the high sections of the yard. The lowest section of the yard was located along the DeRosa fence near the "Hurlburt hole" which is the southerly part of the DeRosa backyard, however, no fill was deposited adjacent to the Hurlburt hole area. There was material deposited southerly of that area. When the fill was moved to the backyard the purpose was to fill in uneven places and even out the yard and to cut down weeds and remove trash. According to John Paul Garcia, the plaintiff's expert, the deposit of the material in the rear portion of Lot #133 resulted in the rear portion of Lot #133 being elevated to at least two feet higher than the lowest elevation at the rear of the plaintiff's property.
During this regrading of the property, the defendants connected a gap in the 12" RCP that ran from the "Hurlburt hole" southerly through the defendants' property to the next southerly property. The 12" RCP piping has a life expectancy of between 25 and 50 years. There is no evidence of past pipe failure nor any evidence of imminent future pipe failure. There is no evidence that at any time from the plaintiff's purchase of his property that the "Hurlburt hole" fully filled up with water or the pipes clogged to substantially interfere with the plaintiff's use and enjoyment of his property.
As previously stated, the plaintiff and defendant acquired root title from a 1937 deed which referenced an understanding and agreement by the predecessors of the plaintiff and defendant to "within a reasonable time co-operate in opening the natural watercourse extending over" the defendant's property to drain surface water and maintain said watercourse for such drainage. No evidence was admitted to indicate that the signatory parties to the 1937 deed nor their successors or assigns ever opened the referenced natural watercourse. As of the date of trial and some time prior thereto, no natural watercourse existed over the defendants' property. There is no evidence that at the time the plaintiff purchased his property in 1994, a "watercourse" within the meaning of Connecticut General Statutes § 22-38(16) existed on either the plaintiff's or defendants' property. The plaintiff had continuing problems with the Town of Orange not keeping the catch basin on the road north of the westerly portion of his property clean, which adversely affected the flow of water across the westerly section of the plaintiff's property. The plaintiff did have water backup into his yard in the winter months of 2007 during a heavy snow and then freezing rain. In addition, during periods of heavy rain, water from the defendant's property did make its way onto the plaintiff's property, but demonstrative evidence submitted showed that there was water standing on both the plaintiff's and defendant's property without any evidence of substantial or lasting backup. In addition, there is no evidence of damage or harm to the plaintiff's property as a result of water backing up from the defendant's property. There is no back up of water from the "Hurlburt hole" onto the plaintiff's property. There is no evidence that the defendant intentionally caused any surface water to flow onto the plaintiff's property which resulted in damage or harm to the plaintiff's property. The plaintiff's claim at best is anticipatory with no evidence of actual damage or imminent harm.
III DISCUSSION A Legal Standard
Practice Book § 15-8 provides: "If, on the trial of any issue of fact in a civil matter tried to the court, the plaintiff has produced evidence and rested, a defendant may move for judgment of dismissal, and the judicial authority may grant such motion if the plaintiff has failed to make out a prima facie case. The defendant may offer evidence in the event the motion is not granted, without having reserved the right to do so and to the same extent as if the motion had not been made." "A prima facie case . . . is one sufficient to raise an issue to go to the trier of fact . . . Whether the plaintiff has established a prima facie case entitling the plaintiff to submit a claim to a trier of fact is a question of law . . ." (Citations omitted; internal quotation marks omitted.) Sullivan v. Thorndike, CT Page 18877 104 Conn.App. 297, 302, 934 A.2d 827 (2007), cert. denied, 285 Conn. 907, 942 A.2d 415 (2008).
"The standard for determining whether the plaintiff has made out a prima facie case, under Practice Book § 15-8, is whether the plaintiff put forth sufficient evidence that, if believed, would establish a prima facie case, not whether the trier of fact believes it . . . In testing the sufficiency of the evidence, the court compares the evidence with the allegations of the complaint . . . In order to establish a prima facie case, the proponent must submit evidence which, if credited, is sufficient to establish the fact or facts which it is adduced to prove . . . [T]he evidence offered by the plaintiff is to be taken as true and interpreted in the light most favorable to [the plaintiff], and every reasonable inference is to be drawn in [the plaintiff's] favor." (Internal quotation marks omitted.) Moss v. Foster, 96 Conn.App. 369, 378, 900 A.2d 548 (2006).
B Counts One and Two — Intentional and Negligent Obstruction of Drainage Easement
"In construing a deed, a court must consider the language and terms of the instrument as a whole . . . [The Supreme Court's] basic rule of construction is that recognition will be given to the expressed intention of the parties to a deed or other conveyance, and that it shall, if possible, be so construed as to effectuate the intent of the parties . . . In arriving at the intent expressed . . . in the language used, however, it is always admissible to consider the situation of the parties and the circumstances connected with the transaction, and every part of the writing should be considered with the help of that evidence . . . The construction of a deed in order to ascertain the intent expressed in the deed presents a question of law and requires consideration of all its relevant provisions in the light of the surrounding circumstances . . . Thus, if the meaning of the language contained in a deed or conveyance is not clear, the trial court is bound to consider any relevant extrinsic evidence presented by the parties for the purpose of clarifying the ambiguity." (Citation omitted; internal quotation marks omitted.) IL Giardino, LLC v. Belle Haven Land Co., 254 Conn. 502, 510-11, 757 A.2d 1103 (2000). "[T]he determination of the intent behind language in a deed, considered in the light of all the surrounding circumstances, presents a question of law . . ." (Internal quotation marks omitted.) Stefanoni v. Duncan, 282 Conn. 686, 699, 923 A.2d 737 (2007).
At trial, the plaintiff submitted the deed, as exhibit two, which conveyed "a certain piece or parcel of land, with the improvements thereon, situated in said Town, known as Lot No. 133" to Cullen B. Snell from the grantor Harry B. Cook in 1937. The plaintiff maintained that the following language in the deed created a right of easement for him to drain surface water over the defendants' property, Lot No. 133: "It is hereby understood and agreed between the parties hereto and their respective heirs and assigns, that within a reasonable time they shall cooperate in opening the natural watercourse extending over the piece hereby conveyed so as to drain any surface water from Lots Nos. 123 and 124 shown on said Map, and in maintaining said watercourse to so drain said Lots."
General Statutes § 22a-38(16) defines "watercourses" as "rivers, streams, brooks, waterways, lakes, ponds, marshes, swamps, bogs and all other bodies of water, natural or artificial, vernal or intermittent, public or private, which are contained within, flow through or border upon this state or any portion thereof . . . Intermittent watercourses shall be delineated by a defined permanent channel and bank and the occurrence of two or more of the following characteristics: (A) Evidence of scour or deposits of recent alluvium or detritus, (B) the presence of standing or flowing water for a duration longer than a particular storm incident, and (C) the presence of hydrophytic vegetation."
"A water-course consists of bed, banks and water. Yet the water need not flow continually; there are many water-courses which are sometimes dry. To maintain the right to a water-course it must be made to appear that the water usually flows in a certain direction, and by a regular channel, with banks and sides . . . It may be natural, as where it is made by the natural flow of the water caused by the general superficies of the surrounding land from which the water is collected into one channel; or it may be artificial, as in case of a ditch or other artificial means used to divert water from its natural channel, or to carry it from low lands from which it will not flow in consequence of the natural formation of the surface of the surrounding land . . . A water-course implies a source, a current and a place of discharge. A river or stream begins at its source, where it comes to the surface . . . It is the moving of the water from the source to the mouth that makes the water-course . . . It is a river or water-course from the point where the water comes to the surface and begins to flow in a channel, until it mixes with the sea, arm of the sea, lake or other water. It may sometimes be dry, but in order to be within the above definition it must appear that the water usually flows in a particular direction and has a regular channel with bed, banks or sides . . . A water-course as defined in the law means a living stream with definite banks and channel, not necessarily running all the time, but fed from more permanent sources than mere surface water." (Citations omitted; emphasis added; internal quotation marks omitted.) Chamberlain v. Hemingway, 63 Conn. 1, 5-6, 27 A. 239 (1893).
While the Supreme Court "did not attempt to frame an exact definition of [surface waters], [the Court] did say that such waters had their source in fallen moisture, and as to the form which the water assumed upon the surface of the ground, it was not in any case water collected or flowing in mass, but always water scattered and diffused over the earth as conditions of the weather and the conformation and character of the ground dictated, and standing still or moving aimlessly along until it should be dissipated by percolation or evaporation, or lost in the current of a stream . . . On the other hand the distinguishing mark of a watercourse is a supply which is permanent in the sense that similar conditions will always produce a flow of water, and that the conditions recur with some degree of regularity, so that they establish and maintain for considerable periods of time a running stream." (Citation omitted; internal quotation marks omitted.) Sozanska v. Stratford, 112 Conn. 563, 566-67, 153 A. 164 (1931). Furthermore, the Appellate Court recently quoted from Webster's Third New International Dictionary 2300 (2002) and Black's Law Dictionary 1729 (9th Ed. 2009) in defining surface water: "natural water that has not penetrated much below the surface of the ground" and "[w]ater lying on the surface of the earth but not forming part of a watercourse or lake." (Emphasis added.) Herasimovich v. Wallingford, 128 Conn.App. 413, 422, 17 A.3d 502 (2011).
In the present case, when the plaintiff's expert, Garcia went out to the plaintiff's property to observe and prepare his report on July 11, 2008, there was no existing watercourse over the defendants' property. Furthermore, he did not know whether a natural watercourse ever existed on the defendants' property, except for the language of the 1937 deed. More specifically, he testified that there is no watercourse that exists currently. The expert, opined, however, as he described a path by which water flows to leave the defendants' property, that such path could be defined as a watercourse or a drainage swale "or any of the myriad number of instances."
Accordingly, the plaintiff has failed to put forth sufficient evidence which, if believed, would establish a prima facie case that there was or is a "natural watercourse" extending over Lot No. 133 because he failed to show that any water on the defendants' property fed from more permanent sources than mere surface water so as to constitute a watercourse. Because the plaintiff failed to submit any evidence of the existence of a watercourse over the defendants' property that the defendants were to cooperate in opening so as to drain surface water from the plaintiff's property, and, when taking all evidence to be true, the plaintiff failed to establish the existence of an easement, which he alleged was created by the language in the deed. Accordingly, the defendants' motion to dismiss pursuant to Practice Book § 15-8 is granted as to counts one and two, in which the plaintiff alleged intentional and negligent obstruction of a drainage easement, respectively, because he failed to make out a prima facie case that he had an easement.
Even if the plaintiff had submitted a modicum of evidence of a natural watercourse, he failed to prove that he sustained irreparable damage. "Ordinarily . . . a plaintiff is entitled to an injunction only in the event that he can show that the threatened conduct will cause him irreparable damage. Specifically, the owner of an easement is entitled to relief only if he can show that he will be disturbed or obstructed in the exercise of his right to use it." (Emphasis added.) Wambeck v. Lovetri, 141 Conn. 558, 564, 107 A.2d 395 (1954). During his case-in-chief, the plaintiff acknowledged that he has not suffered any harm or irreparable damage. Furthermore, he failed to present sufficient evidence that, if believed, would establish a prima facie case that he is entitled to relief since he failed to show that he will be disturbed or obstructed in the exercise of his right to use any easement. Therefore, the defendants' motion to dismiss pursuant to Practice Book § 15-8 is granted as to the plaintiff's first and second counts, because he failed to submit any evidence of harm.
C Count Four — Trespass
In the fourth count of his complaint, the plaintiff alleged that the defendants' redirection of surface water, "which previously drained across the [defendants'] property back onto the plaintiff's property is an unauthorized and unlawful trespass by the defendants upon the plaintiff's property." He alleged further in the complaint that, as a result, he has been harmed and continues to be harmed.
"The essentials of an action for trespass are: (1) ownership or possessory interest in land by the plaintiff; (2) invasion, intrusion or entry by the defendant affecting the plaintiff's exclusive possessory interest; (3) done intentionally; and (4) causing direct injury . . . [B]ecause it is the right of the owner in possession to exclusive possession that is protected by an action for trespass, it is generally held that the intrusion of the property be physical and accomplished by a tangible matter. Thus, in order to be liable for trespass, one must intentionally cause some substance or thing to enter upon another's land . . . A trespass may be committed on, beneath or above the surface of the earth, which includes soil, water, trees, and other growths . . . A trespass need not be inflicted directly on another's realty, but may be committed by discharging foreign polluting matter at a point beyond the boundary of such realty." (Citations omitted; emphasis added; internal quotation marks omitted.) Bristol v. Tilcon Minerals, Inc., 284 Conn. 55, 87-88, 931 A.2d 237 (2007). "Regarding the element of intent, [i]t is enough that an act is done with knowledge that it will, to a substantial certainty result in the entry of the foreign matter." (Internal quotation marks omitted.) Id., 88.
"[T]he law of torts, which governs surface water, requires the water do damage before a right of action accrues. It is clear that an injury must be proven for either damages or injunctive relief, and evidence must be reviewed to determine whether or not the plaintiff has proven that the defendant has (1) altered the volume or flow of surface water; (2) in a way that has caused injury or irreparable harm." Street v. Woodgate Condominium Assn., Superior Court, judicial district of Middlesex at Middletown, Docket No. CV 01 096955 (January 13, 2004, Gordon, J.) ( 36 Conn. L. Rptr. 381).
In the present case, the plaintiff's expert testified that he had no knowledge of any water backing up on the plaintiff's property from the defendants' property. He also testified that consequently, there was no damage to the plaintiff's property due to any backing up of water. The expert, however, testified as to a possibility that the underground reinforced concrete pipe, which generally has a life span between twenty-five and fifty years, may fail some time in the future possibly due to lack of maintenance or it being run over by heavy equipment. Nevertheless, the plaintiff failed to put forth sufficient evidence which, if believed, would constitute a prima facie case of trespass because he failed to show the essential element of direct harm or imminent injury. Therefore, the court dismisses the fourth count of the plaintiff's complaint, pursuant to Practice Book § 15-8.
D Count Five — Third-Party Beneficiary Claim
In the present case, the plaintiff alleged in the fifth count of his complaint that he was and is an intended third-party beneficiary of the warranty covenants set forth in the defendants' chain of title. He also alleged that he has been harmed and continues to be harmed by the defendants' breach of the said warranty covenants because of their "unauthorized and unlawful obstruction of the plaintiff's deeded right to drain surface water from his property over the DeRosa/Quirk Property."
"[T]he ultimate test to be applied [in determining whether a person has a right of action as a third party beneficiary] is whether the intent of the parties to the contract was that the promisor should assume a direct obligation to the third party [beneficiary] and . . . that intent is to be determined from the terms of the contract read in the light of the circumstances attending its making, including the motives and purposes of the parties . . . Although [the Supreme Court] explained that it is not in all instances necessary that there be express language in the contract creating a direct obligation to the claimed third party beneficiary . . . [the Court] emphasized that the only way a contract could create a direct obligation between a promisor and a third party beneficiary would have to be, under [the Court's] rule, because the parties to the contract so intended." (Citation omitted; internal quotation marks omitted.) Dow Condon, Inc. v. Brookfield Development Corp., 266 Conn. 572, 580-81, 833 A.2d 908 (2003). To meet this test, the allegations of a complaint must be sufficient for the court to conclude that both contracting parties intended "to confer enforceable rights in a third party." Grigerik v. Sharpe, 247 Conn. 293, 312, 721 A.2d 526 (1998).
In the present case, as discussed supra, the plaintiff failed to set forth sufficient evidence to establish the existence of "a deeded right to drain surface water from his property over the DeRosa/Quirk property" even when taking all evidence to be true and in the light most favorable to the plaintiff. Accordingly, the defendants' motion to dismiss the fifth count pursuant to Practice Book § 15-8 is granted.
E Sixth Count — Quiet Title
In count six, the plaintiff alleged that the defendants claimed "estates or interests in the land or parts thereof which are adverse to the title and/or interest of the plaintiff." The plaintiff seeks "a judgment quieting title in the plaintiff to the right to drain surface waters across the DeRosa/Quirk property as provided in the deed to the plaintiff's property . . ." The defendants argue in their memorandum in support of the motion to dismiss that no such claim was made by the defendants.
The court has already addressed the language in the plaintiff's deed in paragraph III B, supra, with respect to any easement rights and has ruled accordingly. With respect to any surface water rights the plaintiff may have irrespective of the language in the deed, Tide Water Oil Sales Corp. v. Shimelman and Page Motor Co. v. Baker are two seminal cases in Connecticut on the law of repulsion or diversion of surface waters. Under Tide Water Oil, "[a] landowner is under no duty to receive upon his land surface water from the adjacent properties, but in the use or improvement of it he may repel such water at his boundary. On the other hand, he incurs no liability by reason of the fact that surface water falling or running onto his land flows thence to the property of others in its natural manner. But he may not use or improve his land in such a way as to increase the total volume of surface water which flows from it to adjacent property, or as to discharge it or any part of it upon such property in a manner different in volume or course from its natural flow, to the substantial damage of the owner of that property." Tide Water Oil Sales Corp. v. Shimelman, 114 Conn. 182, 189-90, 158 A. 229 (1932), overruled in part by Page Motor Co. v. Baker, 182 Conn. 484, 438 A.2d 739 (1980). "The rule of Tide Water Oil was a modified version of the common enemy doctrine . . . Although it granted immunity to a landowner who merely repelled surface water, it imposed liability upon a landowner who diverted surface water in such a way as to damage substantially the property of his neighbor." (Citation omitted; emphasis added.) Ferri v. Pyramid Construction Co., 186 Conn. 682, 686, 443 A.2d 478 (1982).
In Page Motor, the Supreme Court noted the inflexibility of the common enemy doctrine and thus substituted the rule of reasonable use. Page Motor Co. v. Baker, supra, 182 Conn. 488. In doing so, the Court "announced that a repelling landowner would no longer enjoy immunity in dealing with surface water. Instead, [the Supreme Court] held that, in dealing with surface water, the landowner would be entitled to take only such steps as are reasonable, in light of all the circumstances of relative advantage to the actor and disadvantage to the adjoining landowners, as well as social utility. In increasing the possible liability of a landowner repelling surface waters, [the Supreme Court] did not address, and certainly did not diminish, the existing liability of a landowner diverting surface water under the second branch of the rule of Tide Water Oil." (Citation omitted; internal quotation marks omitted.) Ferri v. Pyramid Construction Co., supra, 186 Conn. 686.
"When one person drains or cultivates his land, grades it or builds roads, structures or embankments upon it, he usually interferes with the flow of surface waters upon or across it; and this interference often causes harm to a neighbor in the use and enjoyment of his land. That harm may arise from the backing up of water on the neighbor's land or from an increase in the flow of the water or from a change in its direction or velocity. It may be intentional or unintentional . . . Whatever the particular situation may be, the same general rules apply in determining liability for the invasion of the neighbor's interest in the use and enjoyment of his land as apply when an invasion results through vibrations, noise, smoke or the pollution of waters . . . When the invasion is not intentional, the liability of the person harmfully interfering with the flow of surface waters depends upon whether his conduct has been negligent, reckless, or abnormally dangerous, assuming that the other elements of liability stated in § 822 [general rule on private nuisance] are present. If, however, the invasion is intentional, liability depends upon whether the invasion is unreasonable." (Citation omitted.) 2 Restatement (Second) Torts § 833, comment (b) Interference with the Flow of Surface Waters.
The defendants testified that some material, including top soil and fill, were either brought in or moved from other parts of Lot 133 to the area closer to the plaintiff's property. The plaintiff, however, failed to present evidence to establish that there was a back up of water or any other form of harm due to such actions by the defendants. Additionally, he admitted that there was no harm or actual damages thus far, and yet, he claimed imminent harm. Thus, when taking all evidence as true and in the light most favorable to the plaintiff, he failed to present sufficient evidence during his case-in-chief to establish that the defendants acted unreasonably so as to cause any harm or imminent injury to the plaintiff. Accordingly, the defendants' motion to dismiss count six is granted as the plaintiff failed to make out a prima facie case that the defendants are claiming estates or interests in the plaintiff's land adverse to his title or interest.
F Requests for Relief
The plaintiff sought punitive damages comprised of attorneys fees and costs of litigation pursuant to the first count, in which he alleged that the defendants intentionally obstructed the plaintiff's right to his drainage easement. He also requested a permanent injunction restraining the defendants from interfering with the plaintiff's easement pursuant to the first and second counts. More specifically, he argues that to the extent that he "claims his property has suffered an ongoing or continuing interference with his claimed right to drain surface water across the lands of the [d]efendants, he is entitled to seek injunctive relief." Additionally, he argues that to the extent that he "claims his property has suffered, or will suffer, a series of encroachments which would require him to bring multiple separate actions for damages, he is entitled to seek injunctive relief."
It should be noted again, however, that the plaintiff withdrew his request for traditional damages because he acknowledges that he has not suffered any harm. Additionally, he failed to make out a prima facie case that the defendants intentionally obstructed or interfered with an alleged easement because the plaintiff failed to present evidence that, if believed, would entitle him to punitive damages or any injunctive relief. Furthermore, as a result of the plaintiff's failure to put forth sufficient evidence which, if credited, would entitle him the right to drain surface waters across the defendants' property, the defendants' motion to dismiss the plaintiff's request for a judgment to quiet title for lack of a prima facie case is also granted.
IV CONCLUSION CT Page 18886
Accordingly, for the foregoing reasons, the defendants' motion for dismissal pursuant to Practice Book § 15-8 as to all counts is granted.