Opinion
No. UWY-CV-08-6000950S
October 27, 2010
MEMORANDUM OF DECISION
PROCEDURAL BACKGROUND
The parties in this action are the plaintiffs, Michael and Marian Keller and the defendant, town of Southbury. On April 4, 2008, the plaintiffs filed a two-count complaint alleging claims in nuisance and trespass claiming damages they allegedly sustained to their real and personal property as a result of water flowing from a culvert controlled and maintained by the defendant located at 125 Luna Trail Extension, Southbury, Connecticut. On January 8, 2009, the defendant filed an answer denying the claims asserted and asserted two special defenses, statute of limitations and governmental immunity, to the claims asserted.
On September 8, 2010, the court conducted a one-day trial in this matter. During trial, the plaintiffs stipulated to the fact that the First Count of the Complaint asserts a claim for absolute nuisance, as opposed to negligent nuisance. Shortly after the plaintiffs rested their case, the defendant withdrew its governmental immunity special defense. The defendant also moved for judgment on the two counts in plaintiffs' complaint on the grounds that the plaintiffs had failed to present sufficient evidence that the defendant intended to bring about the conditions that were a nuisance in this case and/or that it intentionally caused the trespass or knew it was certain to cause the trespass. On September 20, 2010, October 19, 2010 and October 22, 2010 post-trial briefs were filed both by the plaintiffs and the defendant.
II
THE EVIDENCE
At trial, the plaintiffs presented evidence that in 1994 they purchased a residence located at 115 Luna Trail Extension in Southbury, Connecticut, and have lived in such residence since that date. The plaintiff Marian Keller testified that the house was located below the road and that prior to November 29, 2005, there had been no water problems in the house. Evidence was presented that the defendant town of Southbury possessed, controlled and maintained a mesh grate and culvert near the plaintiffs' residence in a wooded area located at 125 Luna Trail Extension. The evidence at trial was that in or about 2000, the town of Southbury installed this mesh grate in front of the culvert to catch and stop leaves and debris from flowing through the culvert and clogging up the catch basin on the other side of Luna Trail Extension. According to the testimony at trial, the mesh grate was bolted to two poles, which were formerly sign posts, and such poles were driven into the bed of the streambed. At trial, plaintiffs presented evidence that a heavily wooded area and subdivision were located uphill from the culvert and both areas drained downhill into the culvert. The water that flowed into the culvert carried water under Luna Trail Extension into a catch basin and eventually into the Housatonic river.
The plaintiff Marian Keller testified at trial that on November 29, 2005, after a period of heavy rain, she was awakened at 3 a.m. by the sound of water rushing into her house and that she soon discovered it was coming into the basement of the house. She testified that the water was overflowing from the parking area in front of the house where the street was and coming over the retaining wall like a waterfall. She testified that she called 911 and thought the cause of the flooding might be a broken Bridgeport Hydraulic storage tank, but soon found out that the culvert on the street was blocked. At that point the water was ankle deep in the street in front of her house. She testified that shortly thereafter an excavator came and cleared out the culvert and that once the culvert was cleared out the water drained into the culvert. Mrs. Keller also testified about her observations of water streaming downhill from the wooded area above the culvert and photographic evidence was admitted at trial of such streaming water.
Mrs. Keller further testified that the basement of her house was a finished in-law apartment. As a result of the flood the night of November 29, 2005, she testified that the water in her basement was ankle deep and that she opened a downstairs exterior door to let the water out. She testified that she and husband then used a wet dry vacuum and mops to clean up the rest of the water. Mrs. Keller testified that they had to discard a number of personal things because of the water damage, including the carpeting in the bedrooms and dining room. Mrs. Keller testified that she did not believe the malfunction of the grate was an intentional act by the defendant.
The plaintiff Michael Keller testified at trial as to the damage suffered at his residence as a result of the flooding on November 29, 2005. He testified as to the outside damage caused by the flooding, including the gravel from the driveway being washed into the grass area in front of the house. He also testified that a sink hole appeared in his yard after the flooding and the stairs of the retaining wall were damaged by the flood.
Ron Metcalfe, the road foreman for the town of Southbury, also testified at the trial. He testified that the culvert was installed to allow water to pass under the road, that the mesh grate was created in 2000 and used in front of the catch basin in the culvert to stop debris from blocking the opening of the catch basin. Metcalfe testified this system was implemented because debris had previously blocked the catch basin and caused flooding damage to an adjacent property owner. He testified the culvert runs through a headwall and the street is above the headwall. He testified that the grate was created by using a mesh screen that was bolted to two sign posts by 3/8" bolts. He further testified the mesh screen was a sander screen and the poles were installed into the ground with an excavator and pushed down into the channel bed approximately 8-10 inches from the head wall. Metcalfe testified that on or about October 13-14, 2005, the town checked and cleaned out debris in the three culverts with grates in town, including the culvert at issue. He also testified that the grate at issue was successful in keeping debris from blocking the catch basin on the opposite side of the culvert for approximately five years prior to November 29, 2005. The plaintiffs did not dispute this fact.
Metcalfe further testified that on November 24, 2005, the town received five inches of snow and that on November 29, 2005, it received heavy rain. Metcalfe testified that a heavy rainstorm had not been predicted for November 29, 2005. He testified he was called on November 29, 2005, at 3 a.m. about the problem on Luna Trail Extension. He testified he then went down to this site and observed the culvert. He testified that there were tree limbs, leaves and other debris between the grate and the culvert and that the mesh grate had become detached from the posts. He testified that an excavator was called that night and that after the excavator removed the debris from the culvert the water ran through the catch basin again. In his opinion, the bolts broke off the grate due to the heavy rush of water against the grate. Metcalfe testified that prior to this incident there were no problems with the grate and flooding in the area.
Metcalfe testified that when the bolts on the mesh grate broke from the poles, the grate lodged against the catch basin, became clogged with tree limbs, leaves and debris, and water was not able to be contained in the culvert. He testified that water overflowed onto Luna Trail Extension and downward toward and onto the plaintiffs' property and into their home. The plaintiffs claimed they suffered damage from the water that came into their home.
Joseph Furey, a meteorologist, testified at trial that the rain that fell in the Southbury area from November 28 through November 29, 2005, was approximately one-half inch to one and one-half inches and that the storm prior to that on November 24, 2005, produced upwards of five inches of snow. Furey further testified that the snow was gone or melted by November 29, 2005.
James Meyers, a civil engineer and land surveyor, testified as an expert witness for the plaintiffs. He testified that water from the upper road and hill area above the culvert drains onto Luna Trail Extension and that because of the grade of the area where the runoff was occurring this increased the velocity of the water coming down the channel. He also testified that he looked at the weather data, reviewed Metcalfe's testimony and in his opinion the grate broke and it pushed against the catch basin and blocked it. He testified this caused water to back up in the culvert and head over the road. He also testified that the defendant town of Southbury had the right intent with the grate concept for the culvert, but that the grate had to be maintained better and he would have used a larger mesh for the grate. Meyers also stated that in his opinion there was no intent on the part of the defendant to intentionally redirect water to flow toward the plaintiff's property and that there was a natural tendency for water to flow towards the plaintiffs' property. Meyers also conceded at trial that there was a five year period of time prior to the incident where there were no problems with the grate and culvert and that it was difficult to say there was a design flaw in the grate system because it had worked for five years. Meyers finally testified that in his opinion the bolts broke because of the pressure of water against the grate.
III
DISCUSSION
A. Absolute Nuisance
The defendant has moved for judgment with respect to plaintiffs' First Count of their Complaint, which asserts a claim for nuisance. In particular the plaintiffs have claimed in their First Count that the defendant possessed, controlled and/or maintained a grate and culvert in a wooded area at/or near 125 Luna Trail Extension and that 1) the manner in which the defendant placed, installed and/or maintained the grate at the opening of the culvert created a danger which had a natural tendency to inflict injury on real and personal property in the immediate vicinity during heavy rains; 2) the danger created by the condition of the grate was a continuing one; 3) the condition in which the grate was maintained was unreasonable considering its use; and 4) as a result of the defendant's nuisance, the plaintiffs sustained injuries, losses and damages to their real and personal property as a direct result of the defendant's redirection of surface waters because of the clogged grate.
To establish a claim based upon nuisance in this action, the plaintiff must prove "(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; (4) the existence of the nuisance was the proximate cause of the plaintiff's injuries or damages." Walsh v. Stonington Water Pollution Control Authority, 250 Conn. 443, 449, n. 4, 736 A.2d 811 (1999), quoting Filisko v. Bridgeport Hydraulic Co., 176 Conn. 33, 35-36, 404 A.2d 889 (1978). "We have long held that [l]iability can be imposed on the municipality only in the event that, if the condition constitute[s] a nuisance, it was created by some positive act of the municipality." (Internal quotation marks omitted.) Kenney v. Old Saybrook, 237 Conn. 135, 164, 676 A.2d 795 (1996), citing Brennan v. West Haven, 151 Conn. 689, 692, 202 A.2d 134 (1964).
"Claims of nuisance fall into two discrete categories: (1) absolute nuisance and (2) negligent nuisance. The principal distinction between the two is that an absolute nuisance has the added requirement that the conduct is intentional . . . Intentional in this context, means not that a wrong or the existence of a nuisance was intended, but that the creator of [it] intended to bring about the conditions which are in fact found to be a nuisance." (Citation omitted; internal quotation marks omitted.) Green v. Ensign-Bickford, CT Page 20772 25 Conn.App. 479, 490, 595 A.2d 1383, cert. denied, 220 Conn. 919, 597 A.2d 341 (1991); see also Dingwell v. Litchfield, 4 Conn.App. 621, 624, 496 A.2d 213 (1985). As set forth above, the plaintiffs in this action have stipulated that their claim is an absolute nuisance claim.
Connecticut's common law regarding the diversion of surface water can be traced back to the case of Tide Water Oil Sales Corp. v. Shimelman, 114 Conn. 182, 158 A. 229 (1932). The Supreme Court there stated that "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 or to pass over them in changed direction or quantity." Id., 184. In discussing the "common enemy doctrine," the court stated that "[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." (Internal citations omitted.) Id. 189-90.
In Page Motor Co. v. Baker, 182 Conn. 484, 487, 438 A.2d 739 (1980), the Connecticut Supreme Court explained that the "common enemy doctrine," is where "the owner of land may repel or divert surface waters from its land on to that of another." The court went further and modified the common enemy doctrine to adopt the rule of "reasonable use" with regard to surface water. "Generally, under the rule of reasonable use, the landowner, in dealing with surface water, is entitled to take only such steps as are reasonable, in light of all of the circumstances of relative advantage to the actor and disadvantage to the adjoining landowners, as well as social utility." Id., 488. The reasonable use rule was considered preferable because of its flexibility. "The issue of reasonableness is a question of fact to be determined on a case by case basis, considering all the relevant circumstances, including such factors as the amount of harm caused, its foreseeability, the purpose or motive with which the act was done, and the consideration of whether the utility of the use of the land outweighed the gravity of the harm resulting." Id. 490; see also Peterson v. Oxford, 189 Conn. 740, 459 A.2d 100 (1983).
The evidence admitted at trial in this case was that the defendant had created a grate, culvert and catch basin system to address the water drainage issues on Luna Trail Extension. The system created was a reasonable use of the land and the system had worked reasonably well for approximately five years without incident. The culvert was regularly maintained and able to contain and drain the water that flowed downhill from the upper development and land as well as from the street area. The defendant had removed debris from the culvert a few weeks before the incident in question.
The plaintiff's civil engineer expert James Meyers, testified at trial that in his opinion the defendant did not intend the flooding conditions that occurred on November 29, 2005 and the defendant did not intend to direct water towards the plaintiffs' property that night. He also acknowledged that the grate, culvert and catch basin system was a reasonable system and had worked reasonably well for five years preceding the incident. Meyers testified that in his opinion the bolts on the grate failed that night due to the pressure of the water against the grate. He testified the separation of the bolts from the screen caused the screen to separate from the posts which caused the grate to block the opening in the head wall. While he had suggestions regarding the improvement of the system, he did not testify or opine that the defendant intended to bring about the conditions that ultimately resulted in the flooding on Luna Trail Extension or that the system implemented by the defendant was unreasonable.
The plaintiffs have not sustained their burden of proving by a fair preponderance of the evidence that the defendant intended to bring about the conditions that resulted in the flooding of plaintiffs' property on November 29, 2005. In fact, the evidence at trial was to the contrary. The defendant over the course of five years, from 2000 through November 29, 2005, repeatedly inspected the system to assure that it was working properly so that adjoining property owners would not be flooded from water draining onto Luna Trail Extension and the evidence at trial was that the system did work properly. No evidence was introduced at trial that any party, including the plaintiffs, suffered injury as a result of the system from 2000 through November 29, 2005. The plaintiffs also have not sustained their burden of proof that the condition complained of had a natural tendency to create danger and inflict injury upon person or property. The evidence at trial was that the system implemented by the defendant eliminated danger and prevented injury to person or property for five years preceding the incident and thereafter. Finally, there was no evidence introduced at trial that the danger created the night of November 29, 2005, was a continuing one. To the contrary, the plaintiffs testified that this was a one-time occurrence.
The court does not minimize the amount of damage that the plaintiffs experienced from the November 29, 2005 flood and the impact that it had on them. However, the plaintiffs have not proven by a preponderance of the evidence their absolute nuisance claim as against the defendant. Based on the foregoing, judgment is rendered in defendant's favor on the First Count of plaintiffs' Complaint.
1. Statute of Limitations
The defendant also claims that the plaintiffs' absolute nuisance claim is barred by the applicable two-year statute of limitations for absolute nuisance claims in General Statute § 52-584. The plaintiffs claim that their absolute nuisance claim is governed by General Statute § 52-577, which provides for a three-year statute of limitation. Since the claim asserted by the plaintiffs is for absolute nuisance, not negligent nuisance, the court finds that the applicable statute of limitation for an absolute nuisance claim is three years pursuant to § 52-577. Estate of Kelsey v. Schoolground Three, Superior Court, judicial district of New Haven, Docket No. CV02 04602415 S (May 17, 2004, Arnold, J.) [ 37 Conn. L. Rptr. 169].
The evidence at trial, and not disputed by the plaintiffs, was that the grate at issue was installed by defendant in the culvert in or about 2000. There was no evidence introduced at trial that the grate was problematic or had any issues within three years of its installation. The plaintiff has argued that by installing the grate system, the defendant has engaged in a continuing course of conduct that tolled the running of the statute of limitations. There is no dispute that if a continuing course of conduct does not toll the statute of limitations, the plaintiff's absolute nuisance claims are barred by the statute of limitations.
"The issue . . . of whether a party engaged in a continuing course of conduct that tolled the running of the statute of limitations is a mixed question of law and fact . . . In order to support a finding of a continuous course of conduct that may toll the statute of limitations there must be evidence of the breach of a duty that remained in existence after commission of the original wrong related thereto. That duty must not have terminated prior to the commencement of the period allowed for bringing an action for such a wrong . . . Where [our Supreme Court has] upheld a finding that a duty continued to exist after the cessation of the act and omission relied upon, there has been evidence of either a special relationship between the parties giving rise to such a continuing duty or some later wrongful conduct of a defendant related to the prior act . . . The continuing course of conduct doctrine is conspicuously fact-bound." (Citations omitted; internal quotation marks omitted.) Jarvis v. Lieder, 117 Conn.App. 129, 978 A.2d 106 (2009).
At trial, the plaintiffs offered no evidence that the grate that was installed in or about 2000 was a nuisance, that they were harmed by it in 2000, or that they continued to be harmed by it from 2000 through November 29, 2005. Moreover, prior to November 29, 2005, the defendant had not received any complaints as to the grate system at 125 Luna Trail Extension, including from the plaintiffs. Thus, there is no evidence of an initial wrong committed by the defendant. Furthermore, the plaintiffs have offered no evidence as to a special relationship between the parties that would give rise to a continuing duty between the parties and the duty to maintain the grate was one owed to the general public.
The court finds that the plaintiffs have offered insufficient evidence at trial to establish a continuing course of conduct that would have tolled the statute of limitations on their absolute nuisance claim. Accordingly, defendant's motion for judgment on the First Count of plaintiffs' Complaint is also granted on the grounds that the plaintiffs' absolute nuisance claim is barred by the statute of limitations.
B. Trespass Claim
The defendant next moves for judgment in its favor on the plaintiffs' Second Count of their Complaint, which alleges a claim in trespass.
The defendant first claims that the plaintiffs' trespass claim is barred by the statute of limitations. The statute of limitations for a trespass claim is three years from when the trespass occurred. General Statute § 52-577; Lombard v. Edward J. Peters, Jr., P.C., 79 Conn.App. 290, 297-98 (2003). The alleged trespass claimed in this action occurred on November 29, 2005 and this action was commenced on April 15, 2008. The court finds that the plaintiffs' trespass claim is not barred by the statute of limitations.
The defendant also moves for judgment on the grounds that the plaintiff did not present sufficient evidence to prove a cause of action based on trespass. "The essentials of an action for trespass are: (1) ownership or possessory interest in the 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 . . . The invasion, intrusion or entry must be physical . . . [B]ecause it is the right of the owner in possession to exclusive possession that is protected by an action for trespass, it is generally held that the intrusion of the property be physical and accomplished by a tangible matter. Thus, in order to be liable for trespass, one must intentionally cause some substance or thing to enter upon another's land. A trespass may be committed on, beneath or above the surface of the earth, which includes soil, water, trees, and other growths . . . A trespass need not be inflicted directly on another's realty, but may be committed by discharging foreign polluting matter at a point beyond the boundary of such realty." (Citation omitted; internal quotation marks omitted.) Bristol v. Tilcon Minerals, Inc., 284 Conn. 55, 87-88, 931 A.2d 237 (2007).
"Regarding the element of intent, it is enough that an act is done with knowledge that it will, to a substantial certainty result in the entry of a foreign matter." Bristol v. Tilcon Minerals, Inc., supra, 284 Conn. 88, citing to 1 Restatement (Second), Torts, Trespass on Land § 158, comment (I) p. 279. In Bristol v. Tilcon Minerals, Inc., the Connecticut Supreme Court looked to federal law for guidance regarding the element of intent in a trespass action. The court cited to Scribner v. Summers, 84 F.3d 554, 558 (2d Cir. 1996), which stated that "in determining the existence of the requisite intent for trespass, the issue was not whether the defendant had intended the contaminated substances to enter the plaintiff's land, but whether the defendants had intended the act that amounted to or produced the unlawful invasion and had good reason to know or expect that subterranean and other conditions would cause the contaminated substances to migrate from the defendant's to plaintiffs' land." Id., 89. "The federal court distinguished cases in which the requisite intent was lacking on the grounds that the defendants in those cases did not have good reason to know that the invasion of the plaintiff's property would occur because the contamination had been enclosed in storage tanks or kept in place by a retaining wall through which they had leaked or seeped." Id.
In this case, the evidence at trial was that the defendant had created a grate, culvert, and catch basin system to address and contain the water that drained onto Luna Trail Extension. That system had worked reasonably well for approximately five years without incident. The culvert was regularly maintained and able to contain the water that flowed downhill as well as from the street. The evidence at trial was that the defendant installed the grate system to mitigate water damage to abutting landowners. The defendant had removed debris from the culvert a few weeks before the incident in question. The plaintiffs testified that the flooding that occurred on November 29, 2005, was a one-time occurrence. There was no evidence presented at trial that the defendant intentionally caused, knew or had reason to know that the bolts on the grate system in place would break and that this would cause the water to overflow the culvert and cause flooding to the plaintiffs' property.
The court once again does not minimize the amount of damage that plaintiffs experienced from the November 29, 2005 flood or its impact on them. However, the plaintiffs have not met their burden of proving by a preponderance of the evidence that the defendant intentionally caused the intrusion of the water on their property on November 29, 2005. Accordingly, the defendant's motion for judgment on the Second Count of the plaintiffs' Complaint is granted.
IV
CONCLUSION
After having considered the evidence and testimony presented, the court enters judgment in favor of the defendant on the First and Second Counts of plaintiffs' Complaint. Based on the court's findings with respect to the First and Second Counts of plaintiffs' Complaint, the court need not address the issue of damages claimed by the plaintiffs.