Opinion
No. CV04-4000404-S
October 19, 2005
MEMORANDUM OF DECISION RE MOTION TO STRIKE #114
I PROCEDURAL HISTORY
On August 3, 2004, the plaintiffs, Kenneth M. Crowell and Sandra B. Crowell, filed a five-count complaint against the defendant, Jessica Adelman Kogut. On April 25, 2005, the defendant filed a motion to strike counts one, two, four and five of the plaintiffs' revised complaint, accompanied by a memorandum in support. On May 13, 2005, the plaintiff's filed a memorandum in opposition. The motion was granted by the court "absent objection" on May 16, 2005. The plaintiffs moved to reargue on May 25, 2005, noting that their memorandum of law in opposition was not in the file for the short calendar hearing. On June 2, 2005, the motion to reargue was granted.
The defendant later filed an apportionment complaint naming Michael S. Hamrah as the apportionment defendant. On March 10, 2005, the plaintiffs filed a revised complaint adding a sixth count against Hamrah. This motion to strike is brought only by the original defendant and concerns only counts one, three, four and five of the plaintiffs' revised complaint, which remain unchanged from the original complaint.
In their complaint, the plaintiffs allege that the defendant is the owner of a parcel of land abutting their property. Both parcels are located on a hillside, with the defendant's parcel located on a higher portion of the hill than the plaintiffs'. Counts one and four assert that the defendant has caused damage to the plaintiffs' property in the course of constructing a dwelling and paving a driveway on her property. According to these counts, the defendant has created "diversion swales" that alter the natural flow of surface water and discharge water onto the plaintiffs' property. Count three alleges that the defendant violated an easement she held in common with the plaintiffs when she caused a paved driveway to be constructed within the easement. Count five concerns repairs of the plaintiffs' property undertaken by the defendant pursuant to an alleged "Hold Harmless Agreement," which the plaintiffs allege were "not performed in a workmanlike fashion" and "unacceptable."
"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) CT Page 13351-cq Fort Trumbull Conservatory, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). The court "take[s] the facts to be those alleged in the complaint . . . and [it] construe[s] the complaint in the manner most favorable to sustaining its legal sufficiency . . . [I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied . . . Thus, [the court] assume[s] the truth of both the specific factual allegations and any facts fairly provable thereunder. In doing so, moreover, [it] read[s] the allegations broadly, rather than narrowly." (Internal quotation marks omitted.) Larobina v. McDonald, 274 Conn. 394, 400, 876 A.2d 522 (2005). "A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Fort Trumbull Conservatory, LLC v. Alves, supra, 262 Conn. 498.
II DISCUSSION A. INTERFERENCE WITH WATER SURFACE RIGHTS
The defendant moves to strike counts one and four on the grounds that they are legally insufficient because the plaintiffs failed to plead that the defendant's actions in diverting water onto the plaintiffs' property were unreasonable. She argues that the "reasonable use" doctrine set forth in Page Motor Co. v. Baker, 182 Conn. 484, 488, 438 A.2d 739 (1980) controls "interference with surface water" claims such as those the plaintiffs allege in counts one and four. The plaintiffs counter that the reasonable use doctrine only applies to cases of repulsion of water, and not to diversion of water cases such as this one.
Tide Water Oil Sales Corp. v. Shimelman, 114 Conn. 182, 189-90, 158 A. 229 (1932), summarized the law on repulsion and diversion of surface waters before Page Motor. "A landowner is under no duty to receive upon his land surface water from the adjacent properties, but in the use or improvement of it he may repel such water at his boundary. On the other hand, he incurs no liability by reason of the fact that surface water falling or running onto his land flows thence to the property of others in its natural manner. But he 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.) Tide Water Oil Sales Corp. v. Shimelman, supra, 114 Conn. 189-90. "The rule of Tide Water Oil was a modified version of the common enemy doctrine . . . Although it granted immunity to a landowner who merely CT Page 13351-cr repelled surface water, it imposed liability upon a landowner who diverted surface water in such a way as to damage substantially the property of his neighbor." (Citation omitted.) Ferri v. Pyramid Construction Co., 186 Conn. 682, 686, 443 A.2d 478 (1982).
As the Connecticut Supreme Court explained in Ferri, "In Page Motor, this court substituted the reasonable use doctrine for the first branch of the rule of Tide Water Oil. We announced that a repelling landowner would no longer enjoy immunity in dealing with surface water. Instead, we held . . . that, in dealing with surface water, the landowner would be `entitled to take only such steps as are reasonable, in light of all the circumstances of relative advantage to the actor and disadvantage to the adjoining landowners, as well as social utility.' In increasing the possible liability of a landowner repelling surface waters, we did not address, and certainly did not diminish, the existing liability of a landowner diverting surface water under the second branch of the rule of Tide Water Oil." Ferri v. Pyramid Construction Co., supra, 186 Conn. 686. Thus, landowners 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.
In count one, the plaintiffs have pleaded that the defendant's construction of an earth berm diversion swale has "caused numerous natural water courses on the property owned by the defendant to be diverted into a preexisting drainage ditch which discharges water onto the plaintiff's property when it overflows." The plaintiffs allege that this diversion has resulted in saturation of their land causing their driveway, patio, and retaining wall to be wet and slick. "This problem is exacerbated in the winter due to freezing on the driveway, at the base of the retaining wall and covering the patio and results in frost heaves as well as safety and liability concerns . . . [Further] the water . . . accumulates upon the plaintiffs' premises and remains standing thereon which creates a nuisance and a dangerous condition." The court finds that the plaintiffs have pleaded sufficient facts in count one, especially when construed in the manner most favorable to sustaining the complaint's legal sufficiency, to support the conclusion that the defendant's earth berm diversion swale diverted surface water in such a way as to damage substantially the property of the plaintiffs.
Count four alleges that the defendant caused a driveway to be paved that also constitutes a diversion swale that redirects water flowing down across the defendant's property and discharges it onto the plaintiffs property and "[s]aid paved driveway blocks the previous natural drainage from the defendants' property into an adjoining culvert." The court finds these facts support the conclusion that the paved driveway caused a CT Page 13351-cs diversion and it can be inferred that the damages to the plaintiffs' property were similar to those alleged in count one as having been caused by the earth berm diversion swale. "[W]hat is necessarily implied [in an allegation] need not be expressly alleged." (Internal quotation marks omitted.) Commissioner of Labor v. C.J.M. Services, Inc., 268 Conn. 283, 292, 842 A.2d 1124 (2004). Therefore, the motion to strike counts one and four is denied.
B. VIOLATION OF INGRESS/EGRESS EASEMENT
In count three, the plaintiffs allege that the defendant violated an ingress/egress easement granted to the defendant in the warranty deed to her property. According to count three, the warranty deed provided that the property was granted to the defendant "together with a perpetual easement in common with [the plaintiffs] for ingress, egress, and the installation and maintenance of underground utilities." The copy of the warranty deed incorporated into the complaint describes the easement as "over and under Hillcrest Terrace." The plaintiffs further allege that on the same date the defendant received her warranty deed, Lydale Development Company, LLC quitclaimed to the plaintiffs a portion of the paper street known as Hillcrest Terrace. According to count three, the defendant caused a paved driveway to be constructed within the ingress/egress easement and the driveway "blocks the previous natural drainage from the plaintiffs property into an adjoining culvert . . . Said paved driveway constitutes a violation of the easement for ingress and egress over the paper street."
See Practice Book § 10-29.
The defendant moves to strike count three on the ground that it fails to allege any facts that support its conclusion that the easement was violated. She argues that constructing a driveway over an ingress/egress easement shared by the parties is reasonably connected with the reasonable use of the land to which it is appurtenant and, if anything, facilitates rather than violates the shared easement. The defendant further argues that count three merely makes a bald conclusion that the easement was violated by the paving of the driveway without alleging any facts showing how the easement was violated. The plaintiffs argue that the increased water flow to their property caused by the paving of the driveway within the easement has unreasonably overburdened the defendant's easement for ingress and egress.
In Zhang v. Omnipotent Enterprises, Inc., 272 Conn. 627, 636-37, 866 A.2d 588 (2005), the Connecticut Supreme Court explained the applicable law with regard to the scope of such easement rights. Discussing Abington Ltd. Partnership v. Heublein, 246 Conn. 815, 717 A.2d 1232 (1998), the court explained that it "adopted the position CT Page 13351-ct set forth in certain provisions of the Restatement (Third) of Property that recently had been approved . . . [S]ee 1 Restatement (Third), Property, Servitudes § 4.1 and 4.10 (2000). [The court] noted that §§ 4.1 of the Restatement (Third) [ supra] makes the intentions or the reasonable expectations of the parties the overarching consideration in the construction of a servitude. Only if the rules of § 4.1 are not fully applicable do supplemental principles, set forth in [§ 4.10 of the Restatement (Third), supra], provide additional guidance. Subject to the proviso that the servitude beneficiary is not entitled to cause unreasonable damages to the servient estate, or interfere unreasonably with its enjoyment, § 4.10 permits the beneficiary of an easement to make any use of the servient estate that is reasonably necessary for the convenient enjoyment of the servitude for its intended purpose.'" (Citation omitted.) Zhang v. Omnipotent Enterprises, Inc., supra, 272 Conn. 636-37.
The court finds that the plaintiffs do not allege sufficient facts to support a claim for a violation of the easement. The plaintiffs allege that the defendant's paving of a driveway over the easement blocks the previous natural drainage from their property onto an adjoining culvert. They do not allege that their property is the servient estate that is burdened by the easement. The complaint instead suggests that the defendant and the plaintiffs share the easement because the easement was granted to the defendant "together with an easement in common" with the plaintiffs. The Restatement rules cited by the Zhang court speak of unreasonable damage to the servient estate. The plaintiffs do allege that they received a quitclaim deed of a portion of the paper street over which the easement runs, but there is no suggestion that this property is the servient estate or that this property is the property that was injured by the paving of the driveway over the easement. Moreover, although the plaintiffs discuss the intentions and reasonable expectations of the parties concerning the scope of the easement in their memorandum of law, they do not do so in the complaint. Therefore, the motion to strike count three is granted.
C. VIOLATION OF HOLD HARMLESS AGREEMENT
In count five, the plaintiffs allege that on or about July 25, 2005, the defendant granted the plaintiffs a "Hold Harmless Agreement," which referred to a separate underground electric distribution easement crossing property owned by the plaintiffs. Incorporated in the count is a copy of a document entitled "Hold Harmless Agreement" that appears to be signed by the defendant. The fifth count alleges that this document "provides that in the normal use of said easement there may be need to disturb the driveway and/or lawn of the plaintiffs." According to count CT Page 13351-cu five, the agreement "further provides that the defendant agrees to indemnify and hold harmless the plaintiffs from all costs and expenses reasonably necessary to restore their existing driveway, lawn and/or landscaping if the same is disturbed in the creation, maintenance and/or, repair of the underground electric distribution easement crossing the land of the plaintiffs." The fifth count goes on to allege that the plaintiffs' lawn and tree were damaged during the construction of the underground distribution system, the defendant attempted to repair the damage, and "[s]aid repair . . . was performed without prior discussion, notice or agreement of the plaintiffs." The complaint avers that the repair was "not performed in a workmanlike fashion and resulted in an uneven and dangerous area which is a mud pit when wet. The topsoil was not replaced and weeds now cover the plaintiffs' front lawn . . . The defendant [has] been notified that the repairs are unacceptable to the plaintiffs."
See footnote 2.
The defendant argues that the plaintiffs have failed to allege a valid contract because the complaint does not allege offer, acceptance or mutual understanding. She further argues that the plaintiffs have not alleged sufficient facts to support their legal conclusion that the "Hold Harmless Agreement" was violated. The plaintiffs argue that sufficient facts have been pleaded to support the conclusion that an agreement existed between the parties to indemnify the plaintiffs for damage caused to their property and that the plaintiffs have not been indemnified.
"[W]hile [contracts] may be stated according to their legal effect, the pleading should be such as to fairly apprise the adverse party of the state of facts which it is intended to prove." (Internal quotation marks omitted.) Lind-Larsen v. Fleet National Bank of Connecticut, 84 Conn.App. 1, 15, 852 A.2d 799, cert. denied, 271 Conn. 940, 861 A.2d 514 (2004). "[W]hat is necessarily implied [in an allegation] need not be expressly alleged." (Internal quotation marks omitted.) Commissioner of Labor v. C.J.M. Services, Inc., supra, 268 Conn. 292.
The court finds that the plaintiffs have pleaded sufficient facts, when construed in the manner most favorable to sustaining the complaint's legal sufficiency, to fairly apprise the defendant of the state of facts they intend to prove. The complaint refers to and attaches an "agreement" apparently signed by the defendant and two unidentified persons, though not signed by the plaintiffs, that states that the defendant will indemnify and hold harmless the plaintiffs from all costs and expenses reasonably necessary to restore their property if it is disturbed in the creation, maintenance or repair of the underground distribution easement crossing the plaintiffs' land. The word "agreement" necessarily implies that there was offer, acceptance, and a mutual understanding. The CT Page 13351-cv complaint's allegation that the defendant's attempted repair was "not performed in a workmanlike fashion and resulted in an uneven and dangerous area which is a mud pit when wet" and that the "topsoil was not replaced and weeds now cover the plaintiffs' front lawn" constitute facts that, if proved true, would violate the terms of the "agreement," which states that the defendant would indemnify and hold harmless the plaintiffs from all costs and expenses reasonably necessary to restore their property if it is disturbed in the creation of the underground distribution easement. Therefore, the motion to strike count five is denied.
III CONCLUSION
For the foregoing reasons, the court grants the defendant's motion to strike the plaintiffs' revised complaint as to count three but denies it as to counts one, four and five.
So Ordered.