Opinion
No. CV08-4031502-S
October 21, 2008
MEMORANDUM OF DECISION
This is an action brought by the plaintiffs, Frank M. Proto and Emma R. Proto seeking an injunction against the defendants Christopher Healey and Joy Healey to prevent them from diverting water from their property known as 1073 Long Hill Road on to the property of the plaintiffs known as 230 Mirror Lane, both said properties are located in the town of Guilford. The plaintiffs also seek money damages for attorney fees and other relief.
Before the court is the plaintiffs' application for a temporary mandatory injunction to prevent the diversion of the water on to the property of plaintiffs. It has long been our law that "a landowner cannot use or improve his land so as to increase the volume of the surface waters which flow from it onto the land of others, nor can he discharge surface waters from his land onto the land of others in a different course from their natural flow, if by so doing he causes substantial damage." Taylor v. Conti, 149 Conn. 174, 177 (1962).
The properties of the plaintiffs and the defendants are contiguous. The defendants' property, however, is at a higher elevation (approximately thirty to forty feet). The plaintiffs have lived at 230 Mirror Lane for about 40 years. Although there was surface water that flowed from the Long Hill Road property, this flow was always controlled by drainage ditches which enabled the plaintiffs to keep their backyard dry.
During the latter part of 2006, the defendants began removing trees from their land in order to accommodate a swimming pool which they had installed in 2007. This required the removal of their septic system and the installation of a new septic system at a different location. A problem of flooding was encountered with the lower part of the new septic system and as a result the defendants were required to install a curtain drain in order to prevent water from flowing into the new septic system. In doing so the defendants extended a four-inch plastic pipe from the curtain drain on to the property of the plaintiffs discharging water directly in to the backyard of the 230 Mirror Lane property.
This septic system relocation was done under a "repair" permit instead of a new septic permit which would have required more supervision by the town.
At the time of the hearing on this application, the defendant removed that portion of the plastic pipe that was on the property of the plaintiffs pursuant to a stipulation of the parties. There is no claim by the defendants that this removal would abate the flow of water from the curtain drain on to the property of the plaintiffs.
The flow of water collected by the curtain drain on to the property of the plaintiff intensely increased the run off causing a flooding problem on a portion of the backyard of the plaintiffs. The plaintiffs' expert, John P. Garcia, an engineer, measured the flow of water on to the backyard of the plaintiffs to be one-half to a gallon per minute on a date when it had not rained for approximately 7 to 10 days. Marilyn Shup, the environmental analyst for the town of Guilford was called as a witness. When she inspected the property, she estimated there was a flow of water from the defendants' property on to the plaintiffs' property of "a gallon every few minutes."
As a result of the discharge of the water from the curtain drain, a portion of the plaintiffs' backyard was continuously flooded.
The plaintiffs always enjoyed their property and in particular the backyard, where they gardened and entertained guests. Ms. Shup described the plaintiffs' backyard as follows: "it was a beautifully landscaped backyard, lush grass until we got over to the far, if you're looking at the map, the far left of the property. And that area in his upper corner was muddy and wet, had water actually flowing onto it from the, it seemed, from the up-gradient property [that is, the property belonging to the defendants.]"
In deciding this application for temporary mandatory injunction, the court, in addition to the above facts, has taken into account the ages of the plaintiff Frank Proto who is 88 and his elderly wife. He is in poor health, was a veteran of World War II and a former prisoner of war. As argued by the attorney for the plaintiffs: "Mr. Proto should be allowed to enjoy his backyard [of the home he has lived in for forty years] while he's still able to do so. At 88 years of age, he may not have many more summers to plant flowers and entertain his guests."
The defendants argue that they should be given an opportunity for discovery which will be afforded to them before there is a full trial on the merits and only then should the court consider remedial orders. This court was generous with the time that it allotted to the parties, the hearing of which extended over two days. Indeed, no time limitation was placed on the parties. Furthermore, the court notes the application for the temporary mandatory injunction was served on the defendants on June 16, 2008 approximately three months before the court heard this application.
The court has applied the federal standard as set forth by Judge Hodgson in her well reasoned decision in Mirabelle v. Prospect Little League, 82 Conn. L. Rptr. 5 (2002), "that a party who seeks a mandatory injunction must show that he or she `clearly' is entitled to relief or that `extreme or very serious damage' will result from denial of the injunction Phillip v. Fairfield University, 118 F.3d, 131, 133 (2d Cir. 1997); Tom Doherty Assocs., Inc. v. Saban Entertainment, Inc., 60 F.3d 27, 34 (2d. Cir. 1995)."
The plaintiffs have met both standards. They clearly are entitled to the relief that was caused by the defendants putting in the curtain drain, the flow of which is directed to the plaintiffs' property and which has caused the loss of the use of the backyard of this elderly couple.
The defendants argue that the cost to correct the discharge of this water problem will be in the range of $15,000 to $18,000. This may be the case but the court takes into account that this problem was caused by the relocation of the defendants' septic system which resulted from the installation of the swimming pool installed for the defendants' enjoyment.
The court further finds that the plaintiffs have no adequate remedy at law, the plaintiffs suffer irreparable injury, the plaintiffs are likely to prevail and that the balance favors the issuance of this mandatory injunction.
This court does hereby enter a temporary mandatory injunction (without bond) ordering the defendants Christopher Healey and Joy Healey to take whatever action is necessary to prevent the curtain drain from discharging water or other liquids on to the property of the plaintiffs, all of which, is to be accomplished within sixty days of the date of this order.