Opinion
DBDCV106004907.
11-09-2012
Vasco FERRAZ et al. v. Richard HUNT.
UNPUBLISHED OPINION
OZALIS, J.
I
PROCEDURAL BACKGROUND
The plaintiffs, Vasco and Maria Ferraz, have brought a one-count complaint against the defendant, Richard Hunt for intentional trespass and a violation of General Statutes § 52-560 for cutting the tops off of approximately twenty-seven of plaintiffs' white pine trees. Trial was conducted in this matter on September 13, 2012.
II
FINDING OF FACTS
The court finds the following facts. The plaintiffs and the defendant were abutting property owners for years in Danbury, Connecticut prior to the incident which gave rise to this claim. The relationship between the parties was acrimonious and the parties had repeated conflicts with each other. The defendant's property consisted of a single residence unit and the plaintiffs' property consisted of a multi-family unit that the plaintiffs rented out. In the spring of 2002, the plaintiffs planted multiple white pine trees on their property by the common boundary line between the plaintiffs' and the defendant's property from the front of the plaintiffs' property to the rear of this property. At the time the plaintiffs planted them, the trees were approximately two feet tall. There was no dispute at trial that the trees were planted on plaintiff's property and that they significantly grew in height to about twenty feet tall and a diameter of twelve inches. The plaintiff Vasco Ferraz credibly testified that he had planted the trees in 2002 for privacy and shade, instead of installing a fence.
On July 8, 2010, the plaintiffs discovered that approximately twenty-seven of those white pine trees had their tops significantly cut off and were damaged. The trees that were cut were the trees that lined the portion of the common boundary line in front of the side of the defendant's house. The defendant did not dispute at trial that he cut the trees. Only the middle section of the row of white pine trees were cut and undisputedly the defendant now had an unobstructed view into plaintiffs' yard from his second-story window. Credible evidence was presented that the cut trees were approximately eight to ten feet shorter than the other trees that were on the boundary line. The pictures offered into evidence also demonstrated how these trees would have provided some privacy to the plaintiffs' property from the defendant's property. The pictures offered into evidence also showed that the plaintiffs' property was surrounded primarily by other residences and a church.
The plaintiff's expert, Kurt Stoffel, a licensed real estate appraiser gave testimony as to the diminished value of the property as a result of the loss of privacy from the cutting of the tree tops. Stoffel first testified that he was qualified to testify as to the market value of the property because he was a certified real estate appraiser and had done approximately 1, 400 appraisals, including seventy appraisals of multi-family units in downtown Danbury, Connecticut. Stoffel testified in connection with this appraisal that he did a physical inspection of the property and surrounding area and utilized a sales comparable analysis to determine the value of the property. Stoffel also testified that the trees that were cut would have extended up close to or above the second-floor windows of defendant's house. Stoffel opined that the privacy of the plaintiffs had been clearly compromised by defendant's tree cutting. In his opinion, Stoffel put the value of the property if the trees were not cut at $260,000 and the value of the property with the trees cut at $245,000. Stoffel testified and opined in his report that the diminished value of the property because of the privacy loss was $14,500. Stoffel also testified that, in his opinion, if the trees had not been cut, there would have been a greater privacy enjoyment with the property. The court finds the testimony and opinion of Stoffel to be persuasive and credible.
The difference in value between $260,000 and $245,000 is $15,000. However, the appraiser has opined the diminution in value is $14,500.
The defendant also had an expert testify as to diminution in value to the plaintiff's property as a result of the defendant's cutting the tops of the plaintiff's trees. The defendant's real estate appraiser, Shawna Bedard, first testified that she was qualified to testify as to the market value of the property because she was an appraiser and had done over 1, 500 appraisals. She also testified that she was licensed to appraise commercial and residential real estate in Connecticut. Bedard testified that since the plaintiffs' property was in a commercial zone the plaintiffs had a reduced privacy interest. She further testified that the plaintiffs had zero expectation of privacy as the property consisted of a multi-family housing unit in Danbury, Connecticut. Bedard then opined that there was zero diminution in value to the plaintiffs' property as a result of the defendant cutting the tops off of plaintiffs' trees.
Notwithstanding Ms. Bedard's opinion, she testified that she did notice that the trees along the front of the boundary line between plaintiffs' and defendant's house and to the rear of houses were substantially higher than the trees located in the middle section of the boundary line. She also testified that the defendant had admitted to her that he had cut the middle trees. Ms. Bedard further testified that she went inside the defendant's residence, looked out a second-story window and was able to see right into the plaintiffs' backyard and admitted that she could not assess what the view was like prior to the defendant's cutting of the trees. Ms. Bedard further testified that she never asked the plaintiffs what their expectation of privacy was with respect to their property or what their privacy was like prior to the tree cutting. The court did not find the opinion of the defendant's expert as to diminution in value to be persuasive or credible.
The defendant testified at trial and admitted he had cut the tops of the trees and that he wanted to watch the plaintiffs' property because of nuisances on that property.
III
DISCUSSION
Intentional Trespass and General Statutes § 52-560
The plaintiffs claim in this action that the defendant intentionally trespassed on their property and cut the tops of approximately twenty-seven white pine trees belonging to the plaintiffs.
" The essentials of an action for trespass are: (1) ownership or possessory interest in 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 ... [I]n order to be liable for trespass, one must intentionally cause some substance or thing to enter upon another's land." (Citations omitted; internal quotation marks omitted.) Bristol v. Tilcon Materials, Inc., 284 Conn. 55, 87-88, 931 A.2d 237 (2007).
The plaintiffs further claim that by cutting the tree tops, the defendant violated General Statutes § 52-560. General Statutes § 52-560 provides that " any person who cuts, destroys or carries away any trees, timber or shrubbery, standing or lying on the land of another or on public land, except on land subject to the provisions of section 52-560a, without license of the owner ... shall pay to the party injured three times the reasonable value of any tree ... but, when the court is satisfied that the defendant was guilty through mistake and believed that the tree, timber or shrubbery was growing on his land, or on the land of the person for whom he cut the tree ... it shall render judgment for nor more than its reasonable value." When the trial court is faced with " an action for trespass to the land to which trees were appurtenant ... [i]t is an appropriate remedy either for the recovery of damages for the mere unlawful entry ... for the recovery of the value of the trees removed, considered separately from the land; or for the recovery of damages to the land resulting from the special value of the trees as shade or ornamental trees while standing on the land. For a mere unlawful entry upon land nominal damages only would be awarded. If the purpose of the action is only to recover the value of the trees as chattels, after severance from the soil, the rule of damages is the market value of the trees for timber or fuel. For the injury resulting to the land from the destruction of trees which, as a part of the land, have a peculiar value as shade or ornamental trees, a different rule of damages obtains, namely, the reduction in the pecuniary value of the land occasioned by the act complained of." Eldridge v. Gorman, 77 Conn. 699, 701, 60 A. 643 (1905); see also Caciopoli v. Lebowitz, 131 Conn.App. 306, 312, cert. granted, 303 Conn. 913, 32 A.3d 965 (2011) (proper measure of damages is either the market value of the tree, one it is severed from the soil, or the diminution in the market value of the plaintiff's real property caused by the cutting); Palmieri v. Cirino, 90 Conn.App. 841, 850, 880 A.2d 172, cert. denied, 276 Conn. 927, 889 A.2d 817 (2005) (proper measure for damages includes diminution in market value of real property caused by cutting of trees).
" [R]eplacement value is not a proper measure of damages in tree cutting cases because [s]uch a measure of damages ... would lead to unreasonable recoveries in excess of the market value of the land ... would raise impossible issues in resolving the replacement values of healthy or partially damaged trees ... [and] cannot be practically applied." (Internal quotation marks omitted.) Ventres v. Goodspeed Airport, LLC, 275 Conn. 105, 159 (2005), cert. denied, 547 U.S. 1111, 126 S.Ct. 1913, 164 L.Ed. 664 (2006). In Ventres, the Connecticut Supreme Court further held that " the plain language of § 52-560 authorizes treble damages only for the value of trees as commodities, not for the reduction in the pecuniary value or for the replacement cost of the trees." Id., at 160.
In this case, the plaintiff has pled a claim of intentional trespass and a violation of General Statutes § 52-560. The property line between the plaintiffs' property and the defendant's property was clearly demarcated by a stone wall. The trees at issue were on the plaintiffs' side of the stone wall. There was no dispute at trial that the trees at issue were located on the plaintiffs' property or that the defendant intruded onto the plaintiffs' property with a tree cutting device and cut the plaintiffs' trees. There was also no dispute at trial that the trees were intentionally cut by the defendant and that he knew he was cutting the plaintiffs' trees. The defendant even admitted to cutting off the tops of the trees so that he could see what was going on in the plaintiffs' yard.
Applying the above legal standards the Court concludes that not only did the defendant trespass on the plaintiffs' land, but the defendant's willful cutting of the tops of approximately twenty-seven of the plaintiffs' white pine trees on the plaintiffs' property, caused the plaintiffs to lose an expectation of privacy that they had with respect to the defendant's house. The court finds that by virtue of this cutting, the plaintiffs' property was diminished in value by $14,500, the approximate difference in the value assessed at $260,000 by the plaintiffs' expert appraiser of the property if the trees were not cut and the $245,000 value assessed of the property with the trees cut.
As the plaintiffs' claimed damages are the diminution in value of their property and not the value of the trees as commodities, treble damages are not awarded to plaintiff.
IV
CONCLUSION
Having met their burden of proof and for the reasons stated above, judgment shall enter in favor of the plaintiffs as against the defendant in the amount of $14,500. The plaintiffs' request for treble damages is denied.