Opinion
No. CV 05 5000290 S
August 16, 2007
MEMORANDUM OF DECISION
Facts
The plaintiff Anne-Marie Burdo is the record owner of property located at 184 West Avenue, Milford, Connecticut. The plaintiff Marsha Anne DeFelice is Ms. Burdo's daughter and the plaintiff Alexander William DeFelice is Ms. Burdo's husband. All of the plaintiffs reside at the aforementioned address.
The defendants Robert and Lorraine Utz are the record owners of 196 West Avenue, Milford, Connecticut, a property that abuts the Burdo property. The Burdo property and the Utz property are abutting parcels of land.
There is a great deal of hostility between the parties.
The plaintiff filed a three-count complaint against the defendants. The first count sounds in trespass. The second count is a private nuisance cause of action; and the third count is a quiet title action.
As to Count One Trespass
The essential elements of a trespass are: (1) the plaintiff's ownership or possessory interest in the land; (2) an invasion by the defendant which affects the plaintiff's ownership or possessory interest; (3) that such invasion was "done intentionally"; and (4) damages. See Abington Ltd. P'ship v. Talcort Mountain Science Ctr. for Student Involvement, Inc., 43 Conn.Sup. 424, 427 (Super.Ct. 1994).
After hearing the testimony, evaluating the credibility of the witnesses and weighing the evidence this court finds that the plaintiff met her burden of proof to show ownership of the property located at 184 West Avenue, Milford, Connecticut. The court also finds that the plaintiff failed to meet her burden of proof to show that the defendant Lorraine Utz invaded the plaintiff's property in a manner that affected the plaintiff's ownership or possessory interest in her property located at 184 West Avenue Milford Connecticut.
As to the defendant Robert Utz, with the exception of the allegation that the he temporary placed a fence on the plaintiff's property, the Court finds that the plaintiff has failed to met her burden of proof to show that the defendant Robert Utz invaded the plaintiff's property in a manner that affected the plaintiff's ownership or possessory interest in her property located at 184 West Avenue Milford Connecticut. As to the aforementioned fence, the credible and convincing evidence presented at trial proved that there was a short period of time while the boundary lines of the property were in dispute and being hotly contested that the defendant Robert Utz placed a fence that encroached upon the plaintiff's property by two point seven (2.7) feet. The length of the encroachment was approximately thirty-two (32) feet.
The plaintiff also alleges that her driveway was damaged as a result of the defendant having holes drilled for the fence post. She specifically claims that the drilling of the holes caused her driveway to crack; however the court finds that the plaintiff has failed to prove the damage to her driveway by a fair preponderance of the evidence.
"The measure of damages to be awarded for an injury resulting from a trespass depends upon whether the injury is permanent or temporary . . . A temporary injury is one which may be abated or discontinued at any time . . . and, when injury to property is remedial by restoration or repair, it is considered to be temporary." 75 Am.Jur.2d 95-96, Trespass § 127 (1991); see also Vincent v. New York, N.H. H.R. Co., 77 Conn. 431, 441-42, 59 A. 491 (1904) (discussing difference between permanent and temporary taking and damages occasioned thereby). "There is no fixed, inflexible rule for determining the measure of damages for injury to . . . property resulting from a trespass. The measure of damages differs according to the nature of the injury . . . Damages for the dispossession of property are regarded as an award of compensatory damages for the violation of a recognized property right and encompass more than actual pecuniary loss . . . If one is entitled to a judgment for detention of or preventing the use of . . . land . . . the damages include compensation for . . . [t]he value of the use during the period of detention . . . and . . . [t]he harm to the property or other harm of which the detention is the legal cause." 75 Am.Jur.2d 95-96, supra, § 126; see 4 Restatement (Second), supra, § 931, pp. 551-52; 1 F. Harper, F. James O. Gray, Torts (3d Ed. 1996) § 1.8, p. 1:36 ("[w]hen the injury is to possession alone, damages are typically measured by rental value" [internal quotation marks omitted]).
The court finds that the defendant Robert Utz' invasion of the plaintiff's property was temporary in nature. The court further finds that the invasion of the plaintiff's property did not cause any lasting physical damage.
As was previously stated herein, the total size of the defendant's encroachment was 2.7 feet by 32 feet. No evidence was introduced at the hearing as to the value of the defendant's use of the portion of the plaintiff's property during the period of detention. Furthermore, no evidence as to the value of the plaintiff's property with and without the encroachment was presented at the hearing. In light of the foregoing, the court finds that the plaintiff has failed to meet her burden of proof to show damages.
As to Count Two Private Nuisance
Count Two of the plaintiff's complaint sounds in a private nuisance action. "A private nuisance is a nontrespassory invasion of another's interest in the private use and enjoyment of land. 4 Restatement (Second), Torts § 821D (1979); see also Herbert v. Smyth, 155 Conn. 78, 81, 230 A.2d 235 (1967). The law of private nuisance springs from the general principle that [i]t is the duty of every person to make a reasonable use of his own property so as to occasion no unnecessary damage or annoyance to his neighbor. Nailor v. C.W. Blakeslee Sons, Inc., 117 Conn. 241, 245, 167 A. 548 (1933). The essence of a private nuisance is an interference with the use and enjoyment of land. W. Prosser W. Keeton, Torts (5th Ed. 1984) § 87, p. 619." (Internal quotation marks omitted.) Pestey v. Cushman, 259 Conn. 345, 352, 788 A.2d 496 (2002). A principle of private nuisance law is that "in determining unreasonableness, [c]onsideration must be given not only to the interests of the person harmed but also [to] the interests of the actor and to the interests of the community as a whole. 4 Restatement (Second), supra, § 826, comment (c); see also Walsh v. Stonington Water Pollution Control Authority, 250 Conn. 443, 456-57, 736 A.2d 811 (1999). Determining unreasonableness is essentially a weighing process, involving a comparative evaluation of conflicting interests . . . 4 Restatement (Second), supra, § 826, comment (c); Walsh v. Stonington Water Pollution Control Authority, supra, 456; Maykut v. Plasko, 170 Conn. 310, 314, 365 A.2d 1114 (1976); O'Neill v. Carolina Freight Carriers Corp., 156 Conn. 613, 617-18, 244 A.2d 372 (1968). Unreasonableness cannot be determined in the abstract, but, rather, must be judged under the circumstances of the particular case. Wetstone v Cantor, 144 Conn. 77, 80, 127 A.2d 70 (1956)." (Internal quotation marks omitted.) Pestey v. Cushman, supra, 259 Conn. 352-53. "[A] plaintiff must prove four elements to succeed in a nuisance cause of action: (1) the condition complained of had a natural tendency to create danger and inflict injury upon person or property; (2) the danger created was a continuing one; (3) the use of the land was unreasonable or unlawful; [and] (4) the existence of the nuisance was the proximate cause of the plaintiffs' injuries and damages . . . Walsh v. Stonington Water Pollution Control Authority, supra, 250 Conn. 449 n. 4, quoting Filisko v. Bridgeport Hydraulic Co., 176 Conn. 33, 35-36, 404 A.2d 889 (1978); State v. Tippetts-Abbett-McCarthy-Stratton, 204 Conn. 177, 183, 527 A.2d 688 (1987); see also Kostyal v. Cass, 163 Conn. 92, 99-100, 302 A.2d 121 (1972)." (Internal quotation marks omitted.) Pestey v. Cushman, supra, 259 Conn. 355-56. "Despite its grounding in public nuisance law, this four factor analysis has since been applied without distinction to both public and private nuisance causes of action." Pestey v. Cushman, supra, 259 Conn. 356. "Public nuisance law is concerned with the interference with a public right, and cases in this realm typically involve conduct that allegedly interferes with the public health and safety." Id., 357. "Private nuisance law, on the other hand, is concerned with conduct that interferes with an individual's private right to the use and enjoyment of his or her land. Showing the existence of a condition detrimental to the public safety, or, as the first two elements of the four factor analysis discussed previously require, showing that the condition complained of had a natural tendency to create a continuing danger, is often irrelevant to a private nuisance claim." Id. "[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 [its] property. The interference may be either intentional; Quinnett v. Newman, [ 213 Conn. 343, 348, 568 A.2d 786 (1990)] (nuisance is created intentionally if defendant intends act that brings about condition found to be nuisance); or the result of the defendant's negligence. Id., 348-49. 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. "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. See 4 Restatement (Second), supra, § 822, comment (g); W. Prosser W. Keeton, supra, § 88, p. 626. "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. See Walsh v. Stonington Water Pollution Control Authority, supra, 250 Conn. 458-59; see also 4 Restatement (Second), supra, § 822, comment (g), and § 826, comment (e); W. Prosser W. Keeton, supra, § 88, p. 629." Pestey v. Cushman, supra, 259 Conn. 361-62.
Taking into consideration the circumstances concerning the subject properties and the relationship and actions of the parties, as well as the nature, extent and duration of the defendant Robert Utz' interference with the aforementioned portion of the plaintiff's property and the nature of the use and enjoyment invaded; this court finds that the plaintiff has failed to met her burden of proof to show that the erection of the fence at the subject location for such a short period of duration was unreasonable.
Count Three Quiet Title
Based upon the representation of the parties at the hearing the court has determined that the issues involved in this Count have become moot and therefore it will not address the issue raised in said Count.
Conclusion
For all of the foregoing reasons, judgment may enter in favor of the defendants as to Counts One and Two.