Opinion
No. CV 03-0196802 S
August 10, 2005
Memorandum of Decision
The parties to the action both own residential property in the northern part of Stamford in the watershed of the Mianus River, a source of supply for public water. The plaintiff owns and resides at 168 Echo Hill Drive and the defendants own and reside at 165 North Lake Drive. The properties owned by the parties are separated by a fifty-foot wide strip of land owned by Aquarian Water Company, which supplies public water to the residents of Stamford and neighboring communities. The Aquarian property runs in a westerly direction from Long Ridge Road to a reservoir owned by Aquarian. Although it appears that Aquarian owes the fee to the property, the strip of land is commonly referred to as a "right of way."
The Aquarian right of way is bordered by residential properties on the north and south. The plaintiff's property is located on the north side of the right of way with frontage on the right of way of approximately 200 feet. The defendants' 4.76-acre property is located on the south side of the right of way with frontage of approximately 750 feet. A dirt road is situated within the right of way. Pipes of various types and sizes run under the dirt road permitting the flow ground surface waters to approximately conform to natural drainage patterns.
In the vicinity of the properties owned by the parties the land slopes generally east to west. A pond is located on the easterly side of the defendants' property. A watercourse runs westerly from the pond through the length of the defendants' property. The plaintiff's land is generally flat with gentle slope running from the location of her residence toward the right of way.
The plaintiff claims that the defendants have taken certain actions on their property and on the right of way which have CT Page 11889-cy caused her property to flood and her septic system to fail. These actions include alleged violations of regulations protecting inland wetlands and watercourses and the construction of an additional residence in violation of zoning regulations. They also include the destruction of a drainage pipe in the right of way and preventing Aquarian from replacing the pipe.
The first count alleging trespass claims that the defendants' activities have caused excessive amounts of water as well as feces and excrement to enter the plaintiff's property. The second count alleges that the defendants' activities violated the Inland Wetlands and Watercourses Regulations of the City of Stamford. The third count alleges violations of the Zoning Regulations of the City of Stamford. The fourth count alleges common-law nuisance. The fifth count alleges health code violations in connection with the illegal connection of the defendants' additional residence to their existing septic system.
The plaintiff's case was consolidated with an enforcement action brought by the City of Stamford to force the defendants to comply with zoning and wetlands regulations. Immediately prior to trial the defendants entered into a stipulation with the City admitting the alleged violations and agreeing to pay fines and attorneys fees to the City.
Neither of the parties' properties are connected to the public sewer. The properties are serviced by on-site septic disposal systems. In 1995, prior to the events on which this action was based, the plaintiff found that her septic leaching field was saturated and was no longer functioning in a satisfactory manner. To alleviate this situation she hired an experienced licensed contractor who constructed a new system with leaching galleries to a higher elevation on her property. The relocation also required that septic waste be pumped from the septic tank to the level of the new leaching galleries.
Testimony established that leaching galleries consisting of precast concrete were more efficient than leaching fields which consist of gravel filled trenches.
Defendant, Joseph Gabriele, is a self-employed contractor who stores various pieces of construction equipment on his property. In the winter of 2001-2002 the plaintiff observed the defendant operating construction equipment on the Aquarian right of way. In early 2002 she saw the defendant place a rock in a pipe running under the dirt road situated in the right of way. That pipe was located immediately to the south of the plaintiff's property. When the plaintiff inspected the right of way she found that the rock had been placed on the north end of the pipe and that the CT Page 11889-dz south end of the pipe which would normally discharge water in the direction of the defendants' property had been crushed and covered with dirt. She also observed that a significant number of trees had been removed from the defendants' property and that a number of new pvc pipes were discharging water from the defendants' property into the right of way.
On Sunday April 21, 2002, the plaintiff went to turn a mulch pile located in the rear of her backyard. When she pushed her spade into the ground she found that water was present just below the surface of her yard. For the most part, the plaintiff's backyard had been dry in prior years. In the spring of 2002, the entire state of Connecticut was in the middle of a prolonged drought. Consequently, the plaintiff was surprised and concerned to discover the level of water present on her property. She believed that the defendants' activities may have led to the saturation of her yard and called the City of Stamford to complain.
Richard Talamelli, an environmental planner employed by the Environmental Protection Board was sent to investigate the plaintiff's complaint. He found significant disturbances in wetlands area both on the defendants' property and in the Aquarian right of way. Several corridors had been cut through the wetlands on the defendants' property and drainage pipes had been installed at various locations. Talamelli also found that a number of improvements had been erected on the defendants' property without the required permits. These included a fuel storage tank, an underground propane tank, a shed, a tented garage and a two-story residence measuring approximately thirty feet by thirty feet. Talamelli confirmed that the drainage pipe under the right of way had been destroyed. He testified that he was thoroughly familiar with the right of way and knew that the pipe had been in place for over twenty years prior to its destruction.
When Talamelli questioned defendant, Joseph Gabriele, regarding the improvements on his property he denied that he had erected them or was responsible for them. When questioned about the disturbance of the wetlands, he was evasive. After Talamelli returned to his office a cease and desist order was issued to the defendants and they were ordered to appear before the Environmental Protection Board on May 2, 2002. After a hearing on that date, the Board issued orders requiring the defendants to present a restoration plan and to co-operate with Aquarian to CT Page 11889-da restore the drainage to the conditions which existed prior to the defendants' activities. The defendants did not submit a restoration plan to the Board until November 2003. The application filed at that time proposed minimal restoration work and was unacceptable to the Board.
The result of defendants' activities on their own property was to drain water from their land onto the Aquarian right of way. The slope of the land resulted in some of that water, (particularly from the easterly part of the defendants' property) flowing across the right of way toward the plaintiff's property. The destruction of the pipe under the right of way prevented water from naturally flowing from the plaintiff's property across the right of way on to the defendants' property where it drained toward the west. It is obvious to the court that these activities were undertaken with the intent of achieving such results. It is not clear that the defendants intended to injure the plaintiff's property by their initial actions. However, those actions were undertaken with complete indifference to the effect that they might have on the plaintiff's property.
In retaliation for the plaintiff's complaint to the City of Stamford defendant, Joseph Gabriele, filed his own complaint with the police claiming that the plaintiff was, herself in violation of wetlands regulations. That complaint was found to be without merit.
As early as the end of April 2002, the defendants' diversion of water from their property on to the right of way and the destruction of the pipe under the right of way had led to flooding in the plaintiff's backyard despite the continuation of drought conditions.
In April 2003, Aquarian employees began work to replace the pipe under the right of way that had been destroyed by Joseph Gabrielle. Gabrielle confronted the employees claiming that the site of the proposed work was owned by him and that they were trespassing. The employees left the site without installing the replacement pipe and water continued to back up onto the plaintiff's property. Immediately thereafter, the defendants' attorney wrote to Aquarian complaining of the attempt to install the replacement pipe. While not repeating his client's claim of ownership, the attorney claimed that installation of the pipe "interferes with my clients' property." The defendants' claims caused Aquarian to conduct a through search of their title and to CT Page 11889-db delay the installation of a replacement pipe until 2004. The court finds that the actions of the defendant, Joseph Gabrielle, in preventing the reinstallation of the pipe in the right of way were intentional and without justification. The court further finds that Joseph Gabrielle took these actions with full knowledge that they would result in continued harm to the plaintiff's property.
In May 2003, the plaintiff's septic system experienced a malfunction. The pump had burned out due to over use. The plaintiff's contractor determined that the overuse was caused by an increase in ground water in the area of the septic system. The plaintiff incurred the cost of replacing the pump.
At that time, standing water to a depth of 18 inches was found on parts of the property. In June 2003, samples of surface water were taken by the Health Department of the City of Stamford on both the plaintiff's property and the defendants' property. All samples were found to contain high levels of fecal material. However, the samples from the defendants' property indicated that wildlife might have been responsible for the possible test results. After these tests the plaintiff's contractor ran a dye test on the plaintiff's septic system and determined that the system was not leaking waste materials into the ground water. No similar tests were conducted on the defendants' septic system. The plaintiff testified that she was in the habit of disposing of waste from her dogs in the mulch pile at the rear of her property, not far from the area where the samples were collected by the Department of health. Based on this evidence the court finds that the plaintiff has failed to prove that the defendants were in any way responsible for any contamination of fecal material on the plaintiff's property.
The plaintiff has also failed to show that any damages to her property were caused by the construction of the additional residence on the defendants' property, the installation of a toilet and other bathroom fixtures in the new residence and the connection of such plumbing fixtures to the defendants' existing septic system. However, the evidence shows that the defendants' activities in the wetlands on their property and in the Aquarian right of way was responsible for causing flooding on and damage to the plaintiff's property.
The plaintiff's licensed civil engineer testified that the destruction of the pipe in the right of way and the diversion of CT Page 11889-dc water from the defendant's property into the right of way caused the level of the water table to be raised considerably. The engineer's testimony was based on an in-depth study of the property and on site investigations and field surveys establishing elevations, slopes and drainage patterns. The engineer also testified that the installation of a replacement pipe in 2004 might not lead to the restoration of the water table for another three or four years.
The defendant also presented the testimony of a licensed civil engineer who claimed that the defendants' activities could not have increased the level of the water table on the plaintiff's property because of the existence of a depression running across the right of way which would have permitted water to drain from the plaintiff's property across the right of way on the defendants' property. The court found the testimony of the plaintiff's expert to be more reliable.
The plaintiff presented evidence that the increase in the water table on her property caused by the defendants' activities damaged her property in many ways. Her backyard became flooded and unusable. The asphalt covering her driveway became cracked and buckled. A post supporting a gate on her dog run was lifted out of the ground. The plaintiff's well became flooded and a water filtration system needed to be installed to permit continued use of the well water for domestic purposes. Pot holes developed in the floor of her garage.
Defendant Joseph Gabriele testified that he did not know who disturbed the wetlands areas on his property or blocked and crushed the pipe under the Aquarian right of way. The court did not find his testimony to be credible. The court finds that the evidence is overwhelming that defendant Joseph Gabriele was personally responsible for the actions which resulted in the increase in the water table on the plaintiff's property and the resulting damages which the plaintiff suffered. The evidence regarding the responsibility of defendant Victoria Gabrielle is not so direct. However, the evidence shows that she was co-owner of the 165 North Lake Drive property; that she was aware of the construction of the authorized dwelling on that property, that the actions done on the wetlands on the defendants' property and in the right of way were intended to render the defendants' property drier, particularly in the area of the new dwelling. Moreover, Victoria Gabrielle signed the stipulation with the City of Stamford in which she agreed to pay legal fees and fines CT Page 11889-dd relating to the activities which caused damage to the plaintiff's property. The court finds the evidence supports a finding both defendants bear responsibility for plaintiff's damages.
In a post-trial brief the defendants argue that the plaintiff's failure to plead or prove that she possessed an easement permitting her to maintain a pipe under the Aquarian right or way is fatal to her claim for any damages resulting from the destruction of that pipe. On this point the defendants are mistaken. The plaintiff is not claiming damages for the destruction of the pipe or for any claimed interference with any easement rights she might have in the Aquarian right of way Her claim is based upon damage to her residential property caused by the defendants' actions.
TRESPASS
In count one of the complaint sounding in trespass, the plaintiff alleges that in early 2002, the defendants diverted water from their property onto the Aquarian right of way and the plaintiff's property and destroyed a pipe within the right of way which drained water from the plaintiff's property 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 her property, including water damage to her home, driveway trees and yard. 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 by showing the wrongful diversion of surface water.
Connecticut's common law regarding the diversion of surface water is found in Tide Water Oil Sales Corporation v. Shimelman, 114 Conn. 182, 158 A. 229 (1932) "An owner of land has the right to occupy and use it as he sees fit, by changing its surface or erecting structures upon it, despite the fact that such a use will cause surface water falling upon it or naturally flowing over it from adjacent lands to accumulate upon the latter CT Page 11889-de or to pass over them in changed direction and quantity." Id. at 184. "A landowner 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." Id. at 189. (Internal citations omitted.) This rule is known as the "common enemy doctrine."
In Page Motor Co. v. Baker, 182 Conn. 484, 438 A.2d 739 (1980), the common enemy doctrine set forth in Tide Water was modified to adopt the rule of "reasonable use," which states that a landowner, in dealing with surface water is 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. Id. at 488-89. Reasonableness is determined on a case-by-case basis. A court must consider all of the relevant circumstances, including the amount of harm caused, its foreseeability, the purpose with which the action was taken, and whether the utility of the use of the land outweighs the gravity of the harm done, Peterson v. Oxford, 189 Conn. 740, 745, 459 A.2d 100 (1983). Here the plaintiff has shown that the defendants' use of their property was not only unreasonable, it was also illegal. It involved numerous violations of regulations designed to protect inland wetlands and watercourses as well as the construction of an illegal dwelling in close proximity to wetlands areas. These activities were undertaken as part of a plan or design by the defendants to intensify the use of their property and to divert water from their property without regard to the consequences to others. The court cannot find that the defendants' illegal activities have any utility under the Peterson test, let alone sufficient utility to outweigh the harm done to the plaintiff's property. Accordingly, the court finds the issues on the first count for the plaintiff.
The plaintiff's second count alleges violations of the Stamford wetland regulations arising out of the same conduct constituting a trespass — diversion of surface water, destruction of the pipe in the Aquarian right of way. The plaintiff does not allege that these violations entitle her to damages in excess of those arising out of the trespass alleged in the first count. The court finds the issues on the second count for the plaintiff.
ZONING VIOLATIONS CT Page 11889-df
The plaintiff's third count alleges that the erecting of a new dwelling and other structures on the defendants' property constitute violations of the Stamford zoning regulations. The plaintiff further alleges that these violations have caused her damages. The plaintiff's evidence did not show that the defendants' violations of zoning regulations caused any damage to her property. Accordingly, the court finds the issues on the third count for the defendants.NUISANCE
In her fourth count the plaintiff claims damages for nuisance. "[I]n order to recover damages in a common-law private nuisance cause of action, a plaintiff must show that the defendants' 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. CT Page 11889-dg
In this case the defendants diverted water from their property onto the Aquarian right of way and the plaintiff's property and destroyed a pipe within the right of way which drained water from the plaintiff's property. These actions proximately caused the diversion of the natural flow of the surface water onto the plaintiff's property, and resulted in damage to the plaintiff's property. The court finds that the defendants' actions substantially and unreasonably interfered with the plaintiff's ability to use and enjoy her property and, therefore, constitutes a nuisance under the common law. The court finds the issues on the fourth count for the plaintiff.
HEALTH CODE VIOLATIONS
In the fifth count of the complaint, the plaintiff alleges that the defendants violated the heath code by connecting an additional residence to their existing septic system. While such a violation was proven, the plaintiff failed to prove that the violation resulted in any damage to her. Accordingly, the court finds the issues on the fifth count in favor of the defendants.
DAMAGES
The basic measure of damages for injury to real property is the resultant diminution in its value. Blakeman v. Tobin, 177 Conn. 597, 598, 419 A.2d 336 (1979). The following evidence of damages was before the court.
A. Septic System — The plaintiff presented an invoice showing that she expended $640.05 to replace the pump in her septic system which was overworked and burned out due to the elevation in the water table caused by the defendants' activities.
B. Driveway Restoration — Two estimates for the restoration of the plaintiff's driveway. Both estimates were from reputable contractors and encompassed virtually the same work. The first estimate presented by the plaintiff, was dated May 28, 2005 and quoted $11,024, including sales tax at 6% as the cost of the restoration. The second estimate, presented by the defendants, was dated April 30, 2003 was for $9,500, but did not include tax. The court finds the more recent estimate to be a more appropriate damages for the restoration of the CT Page 11889-dh driveway and according finds damages for that work in the amount of $11,024.
C. Water Filtration System — The plaintiff testified that she expended $2,000 for the installation of a water filtration system required to purify her well water. The court credits the plaintiff's evidence that the system was needed because of the elevation in the water table caused by the defendants' wrongful actions.
D. Restoration of Backyard — The plaintiff obtained an estimate of $62,300 to fill in and regrade her backyard so as to render that portion of her property more useable. The evidence showed that permits and approvals from City agencies would be required before any such work could be undertaken. However, the plaintiff did not offer evidence as to the estimated costs of preparing and submitted plans and obtaining such approvals. The court finds the work included in the proposal to be directly related to the damage to the plaintiff's property caused by the plaintiff.
E. Damages to Plaintiff's Residence and Other Improvements — The plaintiff's evidence showed that the elevation of the water table had caused damage to her residence and other improvements, including a fence and gate located immediately to the rear of the plaintiff's residence. Except for the estimates for work on her driveway and backyard, the plaintiff did not submit any evidence of the cost of repairing the damage to her property caused by the defendants. However, the plaintiff testified that in her opinion the total value of her property would be diminished by $100,000 to $200,000 if the damages to her property were not remedied. She further testified that she believed that the value of her property would be diminished by $25,000 to $50,000 even if all problems caused by the defendants' actions are resolved.
Based on the foregoing the court finds the plaintiff's fair, just and reasonable damages to be $125,324.
ATTORNEYS FEES CT Page 11889-di
The parties stipulated that if the court found in favor of the plaintiff a hearing would be held on the plaintiff's demand for the award of attorneys fees. In light of the court's decision, a hearing will be scheduled on that issue. Thereafter judgment will enter for the plaintiff incorporating the findings of this decision as well as the court's decision on the issue of attorneys fees.David R. Tobin, Judge