Opinion
No. FST CV 06 4007854 S
April 21, 2008
MEMORANDUM OF DECISION
Background
The plaintiffs, Dominick and Anita Perri, brought a two-count complaint against the defendant, Theo Constantine. The plaintiffs own a residence at 4 Sweet Briar Lane, Greenwich, Connecticut. The defendant owns residential property to the east and uphill of the plaintiffs' property at 536 River Road. In Count One, the plaintiffs claim that there is an increased volume of surface water flowing onto the property causing irreparable harm and is a nuisance. Count Two alleges trespass caused by the intentional increase of water flow onto the plaintiffs' property due to changes on the topography of the defendant's property, changes in impervious surfaces and changes in drainage. The increased water flows were allegedly due to the construction of a new home on the property, which replaced the older, smaller home which previously existed on the defendant's property.
A Notice of Lis Pendens was filed by the plaintiffs on the land records. The defendant filed an answer denying the allegations. The case was tried before this court on February 28 and 29, 2008.
The parties have briefed the issues and have submitted proposed findings and orders. Trial exhibits have been reviewed.
Law
To establish a private nuisance claim in Connecticut, "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." Pestey v. Cushman, 259 Conn. 345, 361, 788 A.2d 496 (2002).
The Pestey Court also held:
CT Page 6033
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.
Id., 361.
Other factors should also be considered "in light of the fact that some level of interference is inherent in modern society . . . [and that 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." (Emphasis added.) Id.
In order to evaluate the reasonableness of the actions, they must be viewed on a case by case basis. The court is directed to consider "all of the relevant circumstances, including the amount of harm caused, its foreseeability, the purpose with which the action was taken and whether the utility of the use of the land outweighs the gravity of the harm done." George Street of Middletown, LLC 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), quoting Petersen v. Oxford, 189 Conn. 740, 745, 459 A.2d 100 (1983).
The current law involving the diversion of surface water was set forth in Tide Water Oil Sales Corporation v. Shimelman, 114 Conn. 182, 158 A. 229 (1932). "[A]n owner of land has the right to occupy and use it as he sees fit, generally speaking, by changing its surface or erecting structures upon it, despite the fact that such a use will cause surface water falling upon it or naturally flowing over it from adjacent lands to accumulate upon the latter or to pass over them in changed direction or quantity." Id., 184. The rule, however, is that the landowner "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." (Emphasis added.) Id., 190. See also Ferri v. Pyramid Construction Co., 186 Conn. 682, 685-87, 443 A.2d 478 (1982). "[L]andowners who divert surface water from its natural flow in such a way as to substantially damage the property of their neighbors are liable regardless of whether or not their conduct is reasonable." (Internal quotation marks omitted.) Chase v. Tusia, Superior Court, judicial district of Windham at Putnam, Docket No. CV 04 4000354 (May 8, 2007, Booth, J.) (43 Conn. L. Rptr. 688, 689).
The water must do damage. In order for recoverable damages to have occurred, the plaintiffs must prove that the defendant has "(1) altered the volume or flow of surface water; (2) in a way that caused injury or irreparable harm." George Street of Middletown, LLC v. Woodgate Condominium Assn., supra, 36 Conn. L. Rptr. 382.
"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." (Internal quotation marks omitted.) Bristol v. Tilcon Minerals, Inc., 284 Conn. 55, 87, 931 A.2d 237 (2007).
The distinction between trespass and nuisance in the context of a surface water dispute is discussed in Chase v. Tusia, supra, 43 Conn. L. Rptr. 688. The court there referred to the elements of trespass as: "(1) ownership or possessory interest in land by the plaintiff; (2) invasion, intrusion or entry by the defendant affecting the plaintiffs' exclusive possessory interest; (3) done intentionally; and (4) causing direct injury." (Internal quotation marks omitted.) Id., 689.
A nuisance is characterized as a condition that exists rather than the act of creating the condition.
If the creator of the condition intends the act that brings about the condition found to be a nuisance, the nuisance thereby created is said to be absolute and its creator is strictly liable . . . If the condition claimed to be a nuisance arises out of the creator's unintentional but negligent act, i.e., a failure to exercise due care, the resulting condition is characterized as a negligent nuisance . . . The only practical distinction between an absolute nuisance and one grounded in negligence is that contributory negligence is not a defense to the former but may be as to the latter.
(Citations omitted; internal quotation marks omitted.) Quinnett v. Newman, 213 Conn. 343, 348-49, 568 A.2d 786 (1990), overruled on other grounds by Craig v. Driscoll, 262 Conn. 312, 329, 813 A.2d 1003 (2003).
The conduct necessary to make [an] actor liable for . . . a private nuisance may consist of (a) an act; or (b) a failure to act under circumstances in which the actor is under a duty to take positive action to prevent or abate the interference with the . . . invasion of the private interest . . . A possessor of land is subject to liability for a nuisance caused while he is in possession of an abatable artificial condition on the land, if the nuisance is otherwise actionable, and (a) the possessor knows or should have known of the condition and the nuisance . . . and (b) he knows or should have known that it exists without the consent of those affected by it, and (c) he has failed after a reasonable opportunity to take reasonable steps to abate the condition or to protect the affected persons against it.
Chase v. Tusia, supra, 43 Conn. L. Rptr. 689.
Under Connecticut General Statutes § 52-325(a), a notice of lis pendens is properly filed when it is connected to an action "intended to affect real property."
The Supreme Court of Connecticut has interpreted Connecticut General Statutes § 52-325(b) to mean that a "notice of lis pendens is appropriate only where the pending action will in some way, either directly or indirectly, affect the title to or an interest in the real property itself." Garcia v. Brooks Street Associates, 209 Conn. 15, 22, 546 A.2d 275 (1988). Accordingly, Connecticut courts have consistently granted motions to discharge a notice of lis pendens in cases where the notice of lis pendens is filed in association with a nuisance and/or trespass action. See Founders C.D., LLC v. Bray, Superior Court, Docket No. 03 0830337 (January 9, 2004, Berger, J.) (36 Conn. L. Rptr. 315, 316); Bielonko v. Blanchette Builders, Inc., Superior Court, judicial district of Hartford, Docket No. 98 0581188 (February 2, 1999, Lavine, J.); Widlitz v. Conklin, Superior Court, judicial district of New Haven, Docket No. CV 98 0419812 (January 29, 1999, Hadden, J.T.R.); Eppoliti Realty Co. v. Piacentini, Superior Court, judicial district of Danbury, Docket No. CV 92 0311135 (January 28, 1993, Fuller, J.) (8 Conn.Ops. 103) [8 Conn. L. Rptr. 322].
Findings of Fact
1. The property located at 4 Sweet Briar Lane, Greenwich (Cos Cob), Connecticut, is owned by Anita and Dominick Perri, Jr.
2. The property located at 536 River Road, Greenwich (Cos Cob), Connecticut, is owned by Theo Constantine.
3. The property located at 536 River Road, Greenwich (Cos Cob), Connecticut, had an existing dwelling that was demolished and a new dwelling was constructed.
4. The plaintiffs' property is located at the bottom of a watershed area downhill from the defendant's property. (Trial transcript, February 29, 2008 ("Transcript A") pp. 72; trial transcript, February 28, 2008 ("Transcript B"), pp. 61. .
5. Water flows in a natural state from the defendant's property downhill to the plaintiffs' property. (Transcript A, pp. 72-73; Transcript B, pp. 80.)
6. The preconstruction slope of the defendant's property was steeper than the post construction slope. (Transcript A, pp. 72; Transcript B, pp. 123-25.)
7. The Town of Greenwich requires that new construction not adversely affect and/or increase the flow of surface water to adjacent properties. (Transcript A, pp. 74.)
8. The defendant's site plan was designed with three subsurface storage galleries to be placed on the defendant's property. (Plaintiffs' Trial Exhibit 5.)
9. The three subsurface storage galleries on the defendant's property were placed to help disperse surface water within the property as opposed to concentrating it on one spot. (Transcript B, pp. 56.)
10. The defendant's builders' site engineer, Michael J. Mazzucco, designed the subsurface storage system to mitigate any increased surface flow to any adjacent properties. (Transcript B, pp. 61-64.)
11. The surface water is placed and stored in the galleries that are below the surface of the ground. (Transcript B, pp. 61.)
12. Arthur Grecco's property is next to the defendant's property and uphill from the plaintiffs' property. (Transcript A, pp. 43.)
13. There is evidence that surface water flows from Mr. Grecco's property onto both the defendant's property and plaintiffs' property. (Transcript A, pp. 44.)
14. The plaintiffs have poorly draining soil in their backyard. (Exhibit A, page 82.)
15. The plaintiffs' property has a limited storage capacity for rain and surface water. (Transcript A, pp. 125-26.)
16. The plaintiffs' backyard consists of normally wet soil. (Transcript 13, pp. 126.)
17. The infiltration rate on the plaintiffs' property is very slow. Water is absorbed at approximately 1 inch per hour and it takes days for puddles to disappear. (Transcript B, pp. 43, 126-27.)
18. The construction of the defendant's property did not affect the subsoil conditions of the plaintiffs' property. (Transcript B, pp. 124.)
19. There is evidence that the water table is located below the gallery in the southwestern part of the defendant's property. (Transcript A, pp. 112.)
20. There is evidence that the post construction concentration of flow is less than the preconstruction concentration of flow. (Transcript A, pp. 116-17, 127.)
21. There is evidence that the drainage swale/grate/dam located in the southwestern portion of the defendant's property never overflowed allowing surface water to enter onto plaintiffs' property. A day or two after a storm, the catch basin leading to the gallery was empty. (Transcript A, pp. 45.)
22. There is evidence that the subsurface galleries located on the defendant's property were designed and sufficient to handle a 25-year storm, including the 25-year storm of April 15, 2008 (Transcript A, pp. 87-90).
23. There is evidence that surface water flows from the plaintiffs' property onto the defendant's property near the mafia block walls located near the defendant's driveway. (See defendant's video marked as Trial Exhibit DD.)
24. There is no photographic or video evidence depicting any surface water flowing from the defendant's property to the plaintiffs' property. (See plaintiffs' photographs and video marked as Trial Exhibits 12 through 36.)
Discussion
During the trial, it was obvious that a very poor relationship had developed between the parties. The plaintiffs had constructed their house themselves and had lived on the property for over 25 years. The defendant, who had a young family, bought the house of the plaintiffs' neighbor, demolished it, and constructed a much larger home which, in the court's opinion, changed the look and atmosphere of the neighbor's yard that the plaintiffs had experienced for years.
Having reviewed the evidence, which included photographs and videos taken during and after rain storms, and having evaluated the facts and expert testimony submitted, the court concludes that the plaintiffs have not established that the conduct of the defendant constituted a nuisance or a trespass.
There was no evidence of substantial damage done to the property of the plaintiffs. See Tide Water Oil Corporation v. Shimelsmen, supra, 114 Conn. 182; George Street of Middletown, LLC v. Woodgate Condominium Assn., supra, 36 Conn. L. Rptr. 381.
The testimony of Manuel J. Silva, the plaintiffs' expert, and Jeffrey Cissell, the defendant's expert, was that surface water flowed from the defendant's property to the plaintiffs' property in a natural state. Mrs. Perri testified that after a rain storm, there were puddles in their backyard that remained for a couple of days. There was evidence that there were chronic drainage problems in the plaintiffs' backyard which preexisted the construction of the defendant's new home. Mr. Cissell also testified that the drainage on the defendant's property has improved since pre-construction.
The plaintiffs offered no evidence that the subsurface galleries ever failed. The galleries as designed by the site engineer, Mr. Mazzucco, were large enough for a 25-year storm per the plaintiffs' expert, Mr. Cissell.
The plaintiffs' video and photo evidence failed to depict surface water flowing onto their property from the defendant's property. The video of the so-called "mafia block" walls did not show any water flowing onto the property of the plaintiffs in any substantial way. The video evidence shows water flowing from the property of a neighbor, Arthur Grecco, onto both the property of the plaintiffs and defendant.
The plaintiffs have failed to establish that the defendant altered the flow of surface water and caused any substantial amount of water to flow onto the plaintiffs' property, thereby constituting a nuisance.
The plaintiffs have not been able to support the claim of trespass for the reasons discussed above. The record is without any evidence that the defendant intentionally caused any surface water to flow onto the property of the plaintiffs. Additionally, the plaintiffs have not established any evidence that would causally relate the condition of their backyard and property to the defendant's construction activity. See Bristol v. Tilcon Minerals, Inc., supra, 284 Conn. 87.
As to the lis pendens, it is improper. Actions for nuisance and/or trespass against a property owner have been held not to affect the title or interest in a property. See, e.g., Eppoliti Realty Co. v. Piacentini, supra, 8 Conn.Ops. 103; Garcia v. Brooks Street Associates, supra, 209 Conn. 15. Therefore, the notice of lis pendens is improper and must be discharged.
Conclusion
The plaintiffs have not marshaled the quality or quantity of evidence to prove Count 1 (Nuisance) or Count 2 (Trespass). Judgment is for the defendant on both counts. The lis pendens is discharged.
So Ordered.