Opinion
No. CV 09 5012873 S
December 15, 2010
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (#108)
The plaintiffs, Oliver L. Patrell and Katherine F. Patrell, in their capacities as trustees of the Oliver L. Patrell Connecticut Qualified Residence Trust, bring this action pursuant to General Statutes §§ 52-570 and 52-480 against the defendant, Barbara B. Gaudio, seeking an injunction ordering the removal of an earthen berm and line of trees that the defendant erected on her property. Before the court is the defendant's motion for summary judgment in which she argues that the plaintiffs' claim fails because an earthen berm and tree line is, as a matter of law, not a "structure" within the meaning of §§ 52-570 and 52-480. For the following reasons, the court disagrees and, therefore, the motion for summary judgment is denied.
I BACKGROUND A Allegations
The plaintiffs allege the following in their complaint: The plaintiffs owned a parcel of land located in Old Lyme, Connecticut. The defendant owned an adjacent parcel, the eastern border of which abutted the plaintiffs' property. On July 15, 2009, for the purpose of obstructing the view of Long Island Sound from the plaintiffs' property, the defendant erected a five-foot-high earthen berm on top of which she planted a line of ten-foot-tall trees. She created this obstruction after the plaintiffs had unsuccessfully opposed a special permit application that the defendant had filed with the zoning commission of the town of Old Lyme.
B
Procedural History
The plaintiffs brought the present action against the defendant on August 11, 2009. They filed a one-count complaint alleging a cause of action under § 52-570 for the malicious erection of a structure. The plaintiffs seek an injunction pursuant to § 52-480 compelling the defendant to remove the berm and tree line. On August 24, 2010, the defendant filed this motion for summary judgment with a memorandum of law in support. The plaintiffs filed a joint objection (#110) on September 3, 2010. The court heard argument on the motion at short calendar on September 13, 2010.
II DISCUSSION
"Practice Book § [17-49] requires that judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. A material fact is a fact that will make a difference in the result of the case . . . The facts at issue are those alleged in the pleadings . . ."
"In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact . . . To satisfy his [or her] burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent." (Internal quotation marks omitted.) Tuccio Development, Inc. v. Neumann, 111 Conn.App. 588, 593-94, 960 A.2d 1071 (2008).
The defendant's sole argument is that hedges and trees are categorically excluded from the definition of "structure" under case law interpreting §§ 52-480 and 52-570 because they are not artificial or man-made constructions. The defendant cites Dalton v. Bua, 47 Conn.Sup. 645, 822 A.2d 392 (2003), for this proposition. She further asserts that there is no case in Connecticut in which a tree or hedge was held to be a "structure" within the meaning of §§ 52-480 and 52-570. Finally, she argues that, because §§ 52-480 and 52-570 are in derogation of the common law, they should be construed narrowly and their application limited to the construction of man-made barriers.
The plaintiffs' response is that they do not allege that the tree line itself is the "structure" but rather the berm on which the trees were planted. They contend that the berm is clearly a man-made structure that would qualify under the statute pursuant to the defendant's reading of Dalton. Therefore, the plaintiffs conclude, they could prevail on their claim based on the defendant's use of the man-made berm.
Section 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 his land." Section 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 the same."
The leading case on what constitutes a "structure" under these statutes is, as the parties have indicated, Dalton v. Bua, supra, 47 Conn.Sup. 645, a decision rendered by Judge Blue. In Dalton, the plaintiffs alleged that the defendants "out of animosity . . . allowed [one hedge] to grow to a height of eight to nine feet along Hotchkiss Lane directly across from the Dalton [property], creating a visual barrier that now obstructs and hinders the plaintiffs from viewing Long Island Sound from their property." Id., 646. The defendants moved to strike the complaint on the ground that the offending hedge was not a "structure." See id., 645-46.
Judge Blue noted that the Supreme Court has defined "structure" in a different context as "[including] any production or piece of work artificially built up, or composed of parts and joined together in some definite manner." (Internal quotation marks omitted.) Id., 647, quoting Hendryx Co. v. New Haven, 104 Conn. 632, 640, 134 A. 77 (1926). Judge Blue then stated that, although the definition given by the Supreme Court is broad, "it is not limitless . . . An obstruction that is not `artificially built up' is not a `structure.'" (Citation omitted.) Dalton v. Bua, supra, 47 Conn.Sup. 648. On that basis, the court granted the motion to strike. See id., 649.
Contrary to the defendant's contention, Dalton does not stand for the proposition that there is some inherent quality of a hedge that categorically puts it outside of the definition of "structure." Instead, it stands for the proposition that the malicious erection statute does not impose an affirmative duty on a landowner to maintain naturally occurring objects on his or her property so that they do not injure another's use and enjoyment of his or her own property. See id., 648 ("Rather than, `Don't build it,' the Daltons want the law to say, `You must trim it.' This is a significant difference. The complaint is not that the Buas have done something. The complaint, rather, is that they have not done something . . . These statutes prohibit malicious `structures' from being `erected.' They do not require naturally growing plantings to be affirmatively trimmed." [Citation omitted.]).
In the present case, it is undisputed that the defendant created a five-foot-high berm and then planted ten-foot-tall trees on top of the berm in a line. It could hardly be said that this obstruction was not "artificially built up" or "composed of parts and joined together in some definite manner." Unlike in Dalton, the plaintiffs here are not seeking to affirmatively compel the defendant to maintain a naturally occurring tree line so as not to exceed a certain height, they are seeking to compel the defendant to remove an obstruction that she affirmatively created. That the obstruction consisted of naturally occurring elements, i.e. dirt and trees, is inapposite.
Accordingly, the defendant has not shown an entitlement to judgment as a matter of law. The motion for summary judgment is therefore denied.
It is so ordered.