Opinion
No. CV00 0274036-S
April 28, 2005
MEMORANDUM OF DECISION
I PROCEDURAL HISTORY
This is a civil case commenced by a six-count complaint dated September 26, 2000. The defendants joined issue through their answer and counterclaim dated June 18, 2001. Briefly stated, the named plaintiff, Richard Zemke, claims that he suffered surface water damage to his property as a result of the actions of the defendants. The defendants are adjoining property owners. The case was tried to the court on February 10, 2005, on claims of common-law nuisance, statutory nuisance and trespass. In count five of the complaint, the plaintiff alleged a breach of contract. At the time of trial, the court entered judgment in favor of the defendants on this claim.
The summons names the plaintiff as Richard Zemke, however, the complaint and all subsequent pleadings name the plaintiff as Peter Zemke.
The plaintiff alleged the defendants breached an oral agreement to maintain a drainage dam on the parties' adjoining property line. The defendants moved for judgment on this count on the basis that it was in violation of the statute of frauds, General Statutes § 52-550. The motion was granted. The court finds that the remaining counts are not barred by the statute of frauds.
At trial, the parties presented sworn testimony and exhibits. Thereafter, in compliance with the court's order, the parties filed post-trial memoranda of law.
The plaintiff alleges that he is the owner of real property located at 518 Main Street, Meriden, Connecticut. Further, he contends that the defendants are owners or occupiers of adjoining real property located at 512 Main Street. The plaintiff asserts that the defendants made numerous alterations to their real property which have had a detrimental effect on the natural flow of surface water, resulting in damage to his property.
The defendants have asserted a counterclaim of common-law trespass. They allege that the plaintiff unlawfully entered upon the defendants' property for the purpose of diverting water on to it.
II FINDINGS OF FACT
From the credible evidence presented at trial, the court finds the following relevant facts. The plaintiff owns a single-family home located at 518 Main Street, Meriden, Connecticut. He purchased the home in 1979. The defendants, Thomas and Marie Edson, live in a home located at 512 Main Street in Meriden. The two parcels of property are contiguous to one another and share a common boundary. The properties are situated on a hill with the plaintiff's home at a higher elevation. Surface water resulting from rain and melting snow flows downhill from 518 Main Street to 512 Main Street and beyond to other properties. The parties' properties are also affected by surface water run off from a street known as Rosemary Terrace. This street is to the rear of the parties' homes and is at a higher elevation.
In 1982, the defendant Circosta purchased the home at 512 Main Street. He made it his residence until he transferred ownership to the Edsons, his daughter and son-in-law. The parties' properties and the surrounding area have had a long-standing problem with surface water drainage.
In 1979 when the plaintiff moved into his home, there was an existing row of railroad ties that ran the length of the joint property line between 518 and 512 Main Street. The plaintiff subsequently installed a four foot high chain-link fence along and in the vicinity of the property line.
In 1982 when Circosta moved into his home, he removed the railroad ties. The removal of the ties resulted in the creation of a shallow trench along the length of the properties. In some areas, additional soil was placed along the trench on the defendants' side of the property line. As a result of these changes, surface water flowed down the plaintiff's property and into the trench where it continued until it reached Main Street. The flow of the surface water caused soil erosion to the plaintiff's property. As a consequence, a dispute arose between the parties. However, after consulting with legal counsel, they reached a temporary resolution in which water was made to flow first on the plaintiff's side of the property line and then cross over to the defendants' property where it flowed into the street.
This was the agreement that formed the basis for the breach of contract claim that was contained in count five of the complaint.
The flow of the water from one property to the other was accomplished through the placement of earth and wooden boards. Defendant Circosta installed a five-foot chain-link fence within close proximity to the plaintiff's four-foot high fence that ran the length of the property. Thereafter, he affixed a wooden stockade fence to the chain-link fence. This wooden fence interfered with the natural flow of surface waters such that the waters flowed primarily on the plaintiff's property toward Main Street. This caused additional erosion.
In an effort to divert the water onto the defendants' property, the plaintiff erected a dam between the two chain-link fences. Initially, the plaintiff utilized rocks and soil for the dam. Later, he used wooden boards. The dam was located on both sides of the property line. The plaintiff entered the defendants' property to install the dam. The defendants did not give the plaintiff permission to enter upon their property. On or about April 2000, the defendant, Thomas Edson, III, obstructed the trench by placing earthen materials in it. Additionally, he removed the wooden dam altogether. He entered upon the plaintiff's property to accomplish the removal of the dam. The plaintiff did not consent to the defendant's entry upon his property. Both the obstruction of the trench and the removal of the dam caused additional soil erosion to the plaintiff's property.
III DISCUSSION A. Common-Law Nuisance
The plaintiff claims that the defendants' removal of the drainage dam which caused the flow of water to remain on the plaintiff's property constitutes a nuisance.
"[I]n order to recover damages in a common-law private nuisance cause of action, 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 . . . 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. No one factor should dominate this balancing of interests; all relevant factors must be considered in determining whether the interference is unreasonable." (Citations omitted.) Pestey v. Cushman, 259 Conn. 345, 361, 788 A.2d 496 (2002).
"The 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." Id. "Ultimately, the question of reasonableness is whether the interference is beyond that which the plaintiff should bear, under all of the circumstances of the particular case, without being compensated." Id., 362. With these standards in mind, the court turns to the present case.
In this case, the defendants, inter alia, removed an existing row of railroad ties that ran the length of the joint property line, creating a shallow trench, constructed a small berm by placing soil along the trench on their side of the property line, and erected a chain-link fence and a wooden stockade fence along the property line. These actions proximately caused the diversion of the natural flow of the surface water onto the plaintiff's property, and resulted in erosion of the plaintiff's soil. The court finds that the defendant's actions substantially and unreasonably interfered with the plaintiff's ability to use and enjoy his property and, therefore, constitutes a nuisance under the common law.
B. Statutory Nuisance under General Statutes § 19a-336
The plaintiff claims that the actions of the defendants in building up the land on the Circosta side of the property line constitutes a diversion and obstruction of the natural flow of a water course and, as such, is a nuisance under General Statutes § CT Page 7567 19a-336.
Section § 19a-336 provides "If any person unlawfully dams or obstructs a watercourse to the special damage of another, such diversion or obstruction shall be a common nuisance and may be abated as such. Any person who violates any provision of this section shall be fined not more than seven dollars, and each week that such nuisance continues shall be a separate offense. If any person removes or injures a mill dam which is not a nuisance, he shall pay to the party injured double damages and double costs."
The proven facts demonstrate that in April 2000, the defendant, Thomas Edson, III, obstructed the trench by placing earthen materials in it. The obstruction of the trench caused additional soil erosion to the plaintiff's property. Thus, the court finds that the plaintiff has sustained his burden of proof on this claim.
C. Common-Law Trespass
In the sixth count of the complaint sounding in trespass, the plaintiff alleges that in April 2000, the defendants entered upon the land of the plaintiff without permission and broke apart the drainage dam causing water to remain on the plaintiff's property. The plaintiff further alleges that as a direct result of the trespass, the plaintiff suffered damages to his property, including soil erosion.
The elements of a common-law trespass are well established. In order to recover on a claim for trespass under the common law, a plaintiff must show "ownership or possessory interest in property; the physical invasion, entry or intrusion by defendant which affects the plaintiff's possessory rights; intent to do that which causes the invasion and a direct injury to the plaintiff's property." Caltabiano v. Jimmo, Superior Court, judicial district of Middlesex, Docket No. CV 93 0068929 (May 5, 1995, Higgins, J.) (quoting Avery v. Spicer, 90 Conn. 576, 579, 98 A. 135 (1916)).
The plaintiff here has proven the necessary elements of common-law trespass as to defendant Thomas Edson, III. As previously discussed, the credible evidence demonstrates that the defendant intentionally entered upon the plaintiff's land without permission in April 2000 for the purpose of removing the makeshift wooden dam, which had been diverting water onto the defendants' property.
In addition, the defendants also claim trespass in their counterclaim, alleging that the plaintiff entered onto the defendants' property without permission in January 1999 and installed some pipes and boards for the purpose of diverting water onto their property.
The court finds that the defendants have sustained their burden of proof on this counterclaim. The credible evidence demonstrates that the plaintiff intentionally entered upon the defendants' land without permission for the purpose of constructing a wooden dam, in order to divert surface water onto the defendants' property.
D. Damages
In the court's consideration of damages, it has attempted to establish a remedy that will enable the parties to resolve their disagreements and minimize future disputes.
With respect to the plaintiff's nuisance claims, the plaintiff has established his right to have the offending activities of the defendants abated. The court orders the defendants to remove all improvements which obstruct the natural flow of water across the joint property line. This order does not prohibit the defendants from having a chain-link or stockade fence on their property as long as such fences do not unreasonably impede the natural flow of surface waters.
With respect to the plaintiff's claim for statutory nuisance under § 19a-336, the court orders the defendants to remove all obstructions to the natural flow of water in the trench as articulated above. The court imposes a fine of $260 (one dollar per week from April 2000 until April 27, 2005).
With, respect to the plaintiff's claim for trespass, the plaintiff failed to produce sufficient evidence of actual damage to his property. Similarly, the defendants failed to produce sufficient evidence of actual damage to their property with respect to their claim for trespass. "Where there has been no proof of actual substantial damages as a result of the trespass, the court is bound under the law to order some token payment." Buika v. Gioele, Superior Court, judicial district of Litchfield, Docket No. CV 97 73570 (July 2, 1999, DiPentima, J.) (quoting Maganini v. Coleman, 168 Conn. 362, 364, 362 A.2d 882 (1975)). The court therefore orders the defendants to pay the plaintiff nominal damages in the amount of $1 and the plaintiff to pay the defendants nominal damages in the amount of $1.
IV CONCLUSION
The court finds that the plaintiff has prevailed on his claims of common-law nuisance, statutory nuisance and common-law trespass. The defendants have prevailed in their counterclaim for common-law trespass. The court orders that the nuisance be abated and awards monetary damages and a statutory fine consistent with this decision.
So Ordered.
BY THE COURT
Peter Emmett Wiese, Judge