Opinion
No. CV 04 0199821 S
February 2, 2005
MEMORANDUM OF DECISION
On March 24, 2004, the plaintiffs, Dario Palladino, Jr. and Flora Palladino filed a two-count complaint. The plaintiff's first cause of action is a claim of malicious erection of a structure as provided in General Statutes §§ 52-480 and 52-570. The plaintiffs allege that the defendant maliciously erected a fence on her property which impairs the value of the plaintiffs' property as well as the plaintiffs' enjoyment of their property. The plaintiffs seek money damages and injunctive relief. In the second count of the complaint, the plaintiffs allege that the fence interferes with the plaintiffs' use and enjoyment of their property and is therefore a private nuisance. The plaintiffs also seek monetary damages and injunctive relief as a result of this claim.
The defendant contends that the plaintiffs have failed to establish that the defendant acted maliciously or with intent to injure them or their property rights by extending the fence along the common boundary line; and that the plaintiffs have also failed to show that the impact of the extension on their real property interests is substantial enough to warrant a finding of private nuisance. The defendant further claims that the plaintiffs have failed to show irreparable harm and interference with the use and enjoyment of the plaintiffs' property such that an injunction should issue against the defendant; and that the plaintiffs have failed to prove monetary damages.
The evidence brought forth at trial by both parties establishes the following salient facts which are dispositive of the legal issues before the court: The plaintiffs own real estate located at 17 Wells Avenue in Stamford, Connecticut. This real estate is a single-family home rented to third parties unrelated to this dispute. The plaintiffs purchased 17 Wells Avenue in May 2002 from Mr. Palladino, Jr.'s parents, who had owned the property for many years prior to selling it to the plaintiffs.
The defendant, Caterina Pellini, is the owner of the parcel of land adjacent to the plaintiffs' property on the western side, commonly known as 19 Wells Avenue. The defendant resides at Wells Avenue with her two children. The defendant has resided at 19 Wells Avenue since 1993. In 1998 when the defendant and her former husband divorced she continued to reside at 19 Wells Avenue as her sole residence. In April 2002, the defendant purchased 19 Wells Avenue from her former husband as part of a divorce settlement.
In January of 1997 the defendant's former husband sought to construct a fence along the common boundary between 17 and 19 Wells Avenue when he and the plaintiffs' predecessors in title were the owners of the property. The defendant and her former husband were contemplating the installation of a swimming pool at this time and therefore needed a fence to comply with the City of Stamford's official requirements that swimming pools be surrounded by locked enclosures at least four feet high. The swimming pool was installed in June of 1997. Shortly thereafter the defendant's former husband began construction of the fence along the common boundary between the premises when a dispute ensued between he and Dario Palladino, Sr., the plaintiffs' predecessor in title to 17 Wells Avenue. The two ultimately reached an agreement that a fence would be placed along the property line to a point approximately 75 feet from the back property line. This portion of the fence was erected at this time, and there the matter remained until the defendant, pursuant to a divorce settlement, purchased 19 Wells Avenue from her former husband in April of 2002. Shortly after making this purchase, in August of 2002, the defendant continued the permitting process to complete construction of the fence as originally contemplated by she and her former husband. A permit was granted on August 29, 2002 to complete the fence. At this time the defendant enclosed the backyard of 19 Wells Avenue by connecting the existing fence to the easterly rear corner of her house, and decided to extend the fence along the common boundary line another 25 feet or so. Although not in what the court would describe to be the most neighborly manner, the defendant informed the plaintiffs of her intention to construct the fence prior to starting construction. The plaintiffs objected to this extension in writing and filed complaints with the City of Stamford Land Use Bureau in an attempt to have construction of the fence stopped. The defendant did receive a letter from the City of Stamford Land Use Bureau ordering her to cease construction of the fence until a survey was performed to determine the property line. No formal cease and desist order or finding of a zoning violation was ever issued by any municipal official.
The asphalt which paves the plaintiffs' driveway encroaches approximately one foot or so onto the defendant's property. Both the survey provided by the plaintiffs and the survey provided by the defendant confirm that the fence as currently constructed lies directly on the common boundary line. The surveys also confirm that extension of the fence as contemplated by the defendant would also lie directly on the common boundary line. The 25-foot extension of the fence which defendant constructed in the summer of 2002, narrows the plaintiff's driveway to approximately eight and one-half feet for a distance of approximately twenty feet. The evidence brought forth at trial demonstrates that this width is sufficient to permit access to most automobiles, however access by full size vehicles such as pick up trucks and delivery vans would be difficult unless their side rear-view mirrors are folded back. While commercial vehicles, construction trucks and emergency vehicles would have a difficult time gaining access to 17 Wells Avenue via the back of 17 Wells Avenue through the narrower driveway, access could be made at the front.
No credible evidence was offered by the plaintiffs or by experts to demonstrate on the plaintiffs' behalf how extension of the fence would diminish the fair market or rental value of 17 Wells Avenue. In fact the evidence submitted at trial demonstrates that the fair market value of 17 Wells Avenue has increased since the date the plaintiffs purchased it in May of 2002. Additionally, although there have been complaints by the tenants at 17 Wells Avenue about access and parking, there was no evidence submitted that the tenants of 17 Wells Avenue had threatened to vacate the premises or withhold rent due to the construction of the fence and its proposed extension.
The defendant testified at trial that she had always planned to continue extension of the fence as originally contemplated but was unable to because she was not the owner of 19 Wells Avenue until April of 2002. The defendant's reasons for extending the fence are to enclose her swimming pool as required by the City of Stamford; to protect two air conditioning compressor units that had to be located on the easterly side of her house; and generally to ensure privacy and restrict access to her backyard. Although she did not formally complain to the plaintiffs, the defendant testified that she had unwanted guests some of whom were tenants residing at 17 Wells Avenue, freely roaming through her backyard, often leaving trash behind and making unauthorized use of her swimming pool. The defendant also testified that she had been warned of the pool enclosure regulations by City of Stamford officials when they came onto the premises to inspect unrelated construction on the property. In addition, the defendant's insurance company also insisted on enclosure of the pool to continue insurance coverage on her home. Thus, the defendant seeks to continue the fence in order to take full advantage of her side yard, to comply with pool enclosure regulations, to protect her investment in the air conditioning compressors and to restrict access to her backyard for privacy and liability reasons.
I. (COUNT ONE) MALICIOUS ERECTION OF A STRUCTURE
General Statutes § 52-480 provides:
An injunction may be granted against the malicious erection, by or with the consent of an owner lessee or person entitled to the possession of land, of any structure upon it, intended to annoy and injure any owner or lessee of adjacent land in respect to his use or disposition of same.
General Statutes § 52-570 provides:
An action may be maintained by the proprietor of any land against the owner or lessee of land adjacent who maliciously erects any structure thereon, with intent to annoy or injure the plaintiff in his use or disposition of the land.
It is clear that § 52-480 provides for equitable relief against the "malicious erection" by the owner of land of any structure "intended to annoy and injure" the owner of adjacent land, while § 52-570 provides a legal remedy in damages for the same kind of act, using only slightly different language. Although these two statutes have been in existence for over one hundred fifty years, there have been few reported decisions interpreting or applying these statutes.
The Connecticut progenitor of what have commonly been called the "spite fence" cases appears to be Whitlock v. Uhle, 75 Conn. 423, 53 A. 891 (1903). In that case the Connecticut Supreme Court construed and applied the predecessors to §§ 52-480 and 52-570, 1949 Rev. S. 8316 and S.83ll, and sets forth the ingredients necessary to state a cause of action under §§ 52-480 and 52-570. Whitlock v. Uhle, supra, 75 Conn. 426; see also, DeCecco v. Beach, 174 Conn. 29, 381 A.2d 543 (1977); Foldeak v. Incerto, 6 Conn. Cir. 416, 274 A.2d 724 (1970); Rapuano v. Ames, 21 Conn.Sup. 110, 145 A.2d 384 (1958) (restating elements necessary to sustain a cause of action under §§ 52-480 and 52-570). Those essential elements are: 1) a structure erected on the owner's [defendant's] land; 2) a malicious erection of the structure; 3) the intention to injure the enjoyment of the adjacent landowner's land by the erection of the structure; 4) an impairment of the value of adjacent land because of the structure; 5) the structure is useless to the defendant; and 6) the enjoyment of the adjacent landowners' land is in fact impaired. Whitlock v. Uhle, supra, 426; Rapuano v. Ames, supra, 21 Conn.Sup. 111.
Whether a structure was maliciously erected is to be determined by its character, location and use rather than by inquiry into the actual motive in the mind of the party erecting it. Whitlock v. Uhle, supra, 75 Conn. 427; DeCecco v. Beach, supra, 174 Conn. 32. In determining whether a structure was maliciously erected, the Supreme Court in Whitlock v. Uhle, supra, stated:
We think it follows from this purpose of the Act, and from the conditions which define and limit this exception or new right and duty incident to the ownership of land, that the intent to injure by the erection of the structure is an intention which must be discovered mainly from the fact that the structure does impair the value of adjacent land and injure the owner in its use, from the absence of the reasonable possibility of any real advantage, whether of profit, protection or pleasure, in the use of the land, and from the character, location and surroundings of the structure itself . . . Such intention relates to the thing done, its purpose and effect, and does not depend on the existence or non existence of personal spite or ill-will. The intention is not the motive from which it may have sprung, but the established purpose, from whatever motive, to use the land in a manner not justified by its ownership, and forbidden by law. When a structure, useless to the owner, injuring adjacent land and its owner, intended to work such injury, is wilfully erected, it is maliciously erected; that is, it is erected in knowing disregard of the law and the rights of others.
Whitlock v. Uhle, supra, 427. This court finds that the plaintiffs have failed to prove the essential elements necessary to establish that the defendant's extension of her fence was done so maliciously. This court further finds that while the defendant's behavior was not the most neighborly, it was not illegal.
There is no evidence that the defendant intended to impair the use or value of the plaintiffs' property. The evidence elicited at trial supports the conclusion that the defendant had sought for years to complete the enclosure of her backyard but was prevented from doing so because she was not the owner of the property, and had received no cooperation from her former husband in doing so. The evidence demonstrates that the fence serves a useful purpose to the defendant in that she wanted to comply with the law by enclosing her pool and to prevent vandalism by enclosing her two air compressor units. The evidence also demonstrates an intention by the defendant to restrict access to the backyard. Thus, the fence is not useless to the defendant, and hence, element five as set forth in Whitlock, has not been met. The key for determining malice is that the "structure [did not] substantially serve, and is [not] intended to serve [any] purpose but to injure [the plaintiffs] in the enjoyment of [their] land." Whitlock v. Uhle, supra, 75 Conn. 426. The evidence clearly demonstrates that the defendant's fence served several legal and valid purposes.
This court further finds that the plaintiffs have also failed to establish elements four and six, namely the impairment of the value of the plaintiffs' property and, the impairment of the plaintiffs' enjoyment of their property. The plaintiffs, Darlo Palladino, Jr.'s testimony and the appraisal of the 17 Wells Avenue property which was performed only a year prior, in June 2003, demonstrate that the value of the plaintiffs' property increased during the time in question. No evidence, expert or otherwise, was submitted to show a dimunition in the value of the plaintiffs' property if the fence is extended.
Lastly, the plaintiffs have failed to prove element six, and that is that the enjoyment of the plaintiffs' property has been impaired. The evidence submitted through testimony and photographs demonstrate that the enjoyment of the plaintiffs' property has not been impaired. The most this court could glean from the evidence is that the plaintiffs have been inconvenienced by the narrowing of the driveway. Vehicular access to the back of the property is still possible by most automobiles; and the rest of the property remains accessible from the front. Evidence demonstrated by photographs show a U-haul truck in the plaintiffs' driveway being used with ease by the plaintiffs' tenants to unload furniture. Based upon the evidence submitted, this court cannot find that the enjoyment of the plaintiff's property has been impaired by the erection and extension of the fence.
Simply stated, a violation of §§ 52-480 and 52-570 is "[t]he erection of any structure on one's own land, which impairs the value of adjacent land . . . when the structure is maliciously erected . . . with an intent . . . to injure the adjacent owner in the use of disposition of his land . . ." Whitlock v. Uhle, supra, 75 Conn. 426. Accordingly, the evidence does not support a finding that the defendant maliciously erected the fence in question and therefore judgment is entered in favor of the defendant on the first count.
II. (COUNT TWO) PRIVATE NUISANCE
The plaintiffs also claim that the extension of the defendant's fence amounts to a private nuisance for which legal and equitable relief may be granted.
"A private nuisance is a nontrespassory invasion of another's interest in the private use and enjoyment of land . . . The law of private nuisance springs from the general principle that [i]t is the duty of every person to make a reasonable use of his own property so as to occasion no unnecessary damage or annoyance to his neighbor . . . The essence of a private nuisance is an interference with the use and enjoyment of land." (Citations omitted; internal quotation marks omitted.) Pestey v. Cushman, 259 Conn. 345, 352, 788 A.2d 496 (2002).
In Pestey, the court formulated the following standard for a private nuisance:
"[A] plaintiff must show that the defendant's conduct was the proximate cause of an unreasonable interference with the plaintiff's use and enjoyment of his or her property. The interference may be either intentional; . . . (nuisance is created intentionally if defendant intends act that brings about condition found to be nuisance); or the result of the defendant's negligence . . . Whether the interference is unreasonable depends upon a balancing of the interests involved under the circumstances of each individual case. In balancing the interests, the fact finder must take into consideration all relevant factors, including the nature of both the interfering use and the use and enjoyment invaded, the nature, extent and duration of the interference, the suitability for the locality of both the interfering conduct and the particular use and enjoyment invaded, whether the defendant is taking all feasible precautions to avoid any unnecessary interference with the plaintiff's use and enjoyment of his or her property, and any other factors that the fact finder deems relevant to the question of whether the interference is unreasonable." (Citations omitted).
Pestey v. Cushman, supra, 259 Conn. 361.
The evidence adduced at trial showed that the neighborhood in question is composed of small homes on narrow lots. Thus, some inconvenience due to the extension of the fence was foreseeable given the nature of the neighborhood as a whole and the small size of the lots. The evidence further showed that the width of the plaintiffs' driveway is sufficient to permit access to most automobiles, sports utility vehicles and mid-size U-haul trucks. Although the narrower driveway would restrict access to commercial trucks, delivery vans, construction vehicles and emergency vehicles, said vehicles and trucks could still access the premises through the front of the property located at 17 Wells Avenue. Thus, the court finds that this limited access does not amount to a substantial interference.
The evidence adduced at trial also showed that the defendant's reasons for extending the fence were reasonable and legitimate, and, hence, balanced against what the court finds to be an insubstantial foreseeable inconvenience to the plaintiffs, does not warrant a finding that the extension of the fence is a private nuisance. As the court stated in Berube v. Nagle "[t]he determination of whether the interference is unreasonable should be made in light of the fact that some level of interference is inherent in modern society. There are few, if any, places remaining where an individual may rest assured that he will be able to use and enjoy his property free from all interference. Accordingly, the interference must be substantial to be unreasonable." (Internal quotation marks omitted.) 81 Conn.App. 681, 695-96, 841 A.2d 724 (2004). Here, the plaintiffs have failed to show that the extension of the fence was a substantial interference with the use and enjoyment of their property and thus, no private nuisance can be found.
Accordingly, judgment is entered in favor of the defendant on the second count.
WILSON, J.