Opinion
No. CV 02 0067838
May 30, 2003
MEMORANDUM OF DECISION
This case is a boundary dispute between two formerly friendly neighbors residing on Fitts Road in Ashford, Connecticut. Each party is represented by counsel. The relevant facts and procedural history are set forth as follows.
On April 4, 2002, the plaintiff, Christopher Robertson, filed this two-count lawsuit against the defendant, Patricia Theriault, seeking relief for trespass and an injunction for zoning violations. The plaintiff claims that the defendant has installed a pool and cabana on his property. The plaintiff seeks a permanent injunction requiring the defendant to remove the pool and cabana from his property and to bring her property into compliance with the zoning regulations of the town of Ashford. The defendant filed a special defense claiming that the plaintiff should be estopped from seeking the relief requested, pursuant to the theories of estoppel and equitable acquiescence. On May 13, 2002, the case of Theriault v. Robertson (CV 020067786), was consolidated with this case. On September 13, 2002, the court, (Foley, J.), granted Robertson's motion for summary judgment on the complaint/counterclaim of Theriault, but denied the motion for summary judgment as it related to Robertson's complaint.
Trial of all disputed matters was held on February 13, 2003, and post trial legal memoranda were filed with the court on March 3, 2003.
"The essential elements of a trespass action are: (1) ownership or possessory interest in the 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." Abington Ltd. Partnership v. Talcott Mountain Science Center, 43 Conn. Sup. 424, 427, 657 A.2d 732, 11 Conn.L.Rptr. 349 (1994). "One is subject to liability to another for trespass, irrespective of whether he thereby causes harm to any legally protected interest of the other, if he intentionally . . ., fails to remove from the land a thing which he is under a duty to remove . . . Further, [a] trespass may be committed by the continued presence on the land of a structure, chattel, or other thing which the actor has tortiously placed there." (Citation omitted; internal quotation marks omitted.) Ashford v. Rogers, Superior Court at Housing Session, judicial district of Windham at Danielson, Docket No. CV 11-9212 (February 2, 2001, Kocay, J.) ( 29 Conn.L.Rptr. 333, 337).
"An action for damages for trespass is a possessory action . . . for which title is only incidentally relevant . . . When an injunction is sought to restrain a trespass, however, title is an essential element in a plaintiff's case . . . Consequently, where both damages for trespass and an injunction are sought, both title to and possession of the disputed area must be proved . . ., and the burden of proving them is on the plaintiff." (Citations omitted; internal quotation marks omitted.) McCullough v. Waterfront Park Association, Inc., 32 Conn. App. 746, 749, 630 A.2d 1372 (1993).
"Although, 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, this is not so in cases of trespass upon land." Ashford v. Rogers, supra, 29 Conn.L.Rptr. 337. "Injunction is available in a suitable case, and will ordinarily issue at the suit of a landowner to compel the removal of encroachments . . . A decision to grant or deny an injunction must be compatible with the equities in the case and balance the injury complained of with that which will result from interference by injunction." (Citation omitted; internal quotation marks omitted.) Raph v. Vogeler, 45 Conn. App. 56, 62, 695 A.2d 1066, cert. denied, 241 Conn. 920, 696 A.2d 342 (1997).
The evidence shows that the plaintiff acquired the property located at 57 Fitts Road by a warranty deed dated June 8, 1998. His deed from Richard Larsen referenced a map entitled "FINAL SUBDIVISION PLAN OF PROPERTY OWNED BY RICHARD W. LARSON FITTS ROAD ROUTE NO. 44 — ASHFORD, CONNECTICUT HENRY CHARLES COTTON ENGR. SERVICES CONSULTANT LAND SURVEYOR 730 HOPMEADOW STREET SIMSBURY, CONNECTICUT 06070" and was more particularly described as lot no. 3 on said subdivision plan. Shortly thereafter, in August of 1998, the defendant acquired her property located at 63-65 Fitts Road. Her deed was also from Richard Larsen, and referenced the same subdivision plan as referenced in the plaintiff's deed. Her lot was designated as lot 2 on the subdivision plan.
The parcels of land were each improved with a residential structure. From pictures of the lots, entered into evidence at trial, the lots are covered with grass and there is a stand of coniferous trees that are located behind and between the residences. In the spring of 2000, the defendant started the process for erecting an above ground pool and cabana located to the side of her home closest to the plaintiff's property. This process necessitated the securing of a variance from the Ashford zoning board of appeals (ZBA) to locate the cabana twenty feet from the boundary between her property and the plaintiff's property. The defendant's husband presented her application. The plaintiff received notice of the variance application but did not attend the hearings. Although the ZBA requested that a survey be provided to support the application for a variance, the defendant did not obtain a survey.
Some foreshadowing of the problems that presently vex the neighbors occurred at the ZBA hearing, but apparently were not noticed by the defendant. At the ZBA hearing, the defendant's other neighbors, the Devlins, questioned that the defendant had not had a formal survey done to conform the boundary lines of her lot. The Devlins felt that Mr. Theriault (representing his wife, the plaintiff) had "mistakenly identified some of his (Theriault's) property as theirs (Devlin's)." Despite these questions, no survey was undertaken by the plaintiff or required by the zoning board of appeals and the variance was granted.
Upon receipt of the variance approval, the defendant moved forward with her planned improvements and the pool and cabana were completely installed in July of 2000. Prior to June of 2001, it is undisputed that there were good relations between the plaintiff and the defendant and their respective families. In June of 2001, however, the relationship soured.
Thereafter, the plaintiff became determined to locate the boundary line between their respective properties. The plaintiff hired a surveyor and the preliminary plan showed clearly and conclusively that the defendant's cabana and pool are located partially on the plaintiff's property. The plaintiff demanded that the defendant remove the cabana and pool from his property. Each side retained an attorney.
In the spring of 2002, at the prodding of the plaintiff, the zoning enforcement officer for the town of Ashford issued a cease and desist order to the defendant. The order stated that the defendant was in violation of the town zoning regulations in that the swimming pool was less than fifteen feet from the side property line and that the shed or cabana, was less than twenty feet from the side property line. The defendant has not successfully appealed that cease and desist order to the Ashford zoning board of appeals.
Thus, the evidence shows that both the plaintiff and the defendant acquired their property from a common grantor. Their deeds reference the same map and the deeds contained metes and bounds descriptions. The plaintiff further offered into evidence a copy of the original subdivision map and a survey of his lot and the structures located on the lot. This uncontradicted evidence established that the defendant's pool and cabana are located on property owned by the plaintiff. The plaintiff further offered the testimony of the zoning enforcement officer for the town of Ashford who testified that based upon the survey and the deeds that the location of the defendant's pool and cabana violated the Ashford zoning regulations. The zoning enforcement officer testified that he had issued a cease and desist order to the defendant with regard to the pool and cabana and that no appeal of that order had been taken by the defendant to the zoning board of appeals.
Based upon the evidence that the court finds credible the plaintiff has established the factual and legal predicates for him to prevail for injunctive relief under either the first or the second count of the complaint. The court, therefore, turns to the special defenses raised by the defendant to determine whether they require the court to reach a different result. Specifically, the defendant's special defenses allege that the plaintiff consented to, or acquiesced in a boundary line such that the erection of the pool and cabana at the present location would be on the defendant's property and, therefore, the plaintiff should be estopped from taking action.
The defendant's special defenses, as set forth in his post-trial memorandum, are essentially rooted in the doctrine of acquiescence. "Acquiescence in the use and development of an area by a landowner is defined as a consent to the boundary as claimed by an adjoining owner and can estop the acquiescing landowner from pursuing a claim of ownership . . . The acquiescence must occur under circumstances that indicate an assent to such a use." (Citation omitted.) Marshall v. Soffer, 58 Conn App. 737, 744-45, 756 A.2d 284 (2000).
In support of the special defenses, the defendant proffered evidence that may be summarized as follows. At the time she took title to the property in August of 1998, the seller identified that the property line between lots 2 and 3 of the subdivision was along a line of coniferous trees. The plaintiff testified that it was his understanding from the seller of his lot that the boundary line between lots 2 and 3 was along the same line of coniferous trees. Neither party actually knew where the boundary was located. From August of 1998 through the spring of 2001 each party mowed the lawn up to the side of the trees that was closest to their respective homes. The plaintiff testified that in the spring of 2000 he was aware of where the defendant planned to place the pool and cabana. The defendant did not rely upon any statements made by the plaintiff as to the location of their mutual boundary line or the location of the cabana and pool.
The case of Monterosso v. Kent, 96 Conn. 346 (1921), is instructive as to the duties of the defendant. In particular the defendant Kent relied upon the fact that Monterosso had knowledge of the construction of the objectionable structure and did not object. The defendant claimed that Monterosso was estopped to obtain the relief he sought. In words that were appropriate then and are appropriate now, the Supreme Court held "It is primarily the duty of an adjoining landowner about to erect a building or a fence near a division line to investigate all convenient available means to determine the division line and so locate it and then respect it in his operations. He cannot disregard this duty and cast upon his neighbor, who has knowledge of the proposed operations, the duty in investigating his operations and preventing any invasion of the neighbor's land . . ." Monterosso at 352. Here despite the foreshadowing of problems in the ZBA hearing, the plaintiff proceeded without professional assistance to locate the boundary line.
The defendant acted at her own peril. There were numerous opportunities for her to obtain a survey. The plaintiff did not take any affirmative acts that the defendant reasonably relied upon. She told the plaintiff where she was placing the pool. Both parties were mistaken as to the location of the boundary line. His lack of objection was based upon his presumption that the defendant owned the property. She had the duty to investigate where her boundary was.
Accordingly, the court finds that the defendant has not established a factual predicate that would support her special defense of acquiescence. Further, in balancing the injury complained of with that which will result from interference by injunction, the court finds that an injunction is appropriate. The court enters judgment in favor of the plaintiff on his complaint and issues the following orders:
The defendant shall move the encroaching structures, the pool and cabana, from the plaintiff's property and shall return the property to its original condition forthwith;
Any relocation of the structures on the property of the defendant must comply with the Ashford zoning regulations;
No monetary damages are awarded to the plaintiff.
Cosgrove, J.
CT Page 7042-a