Opinion
No. FST CV 08 5007128 S
June 29, 2011
MEMORANDUM OF DECISION AFTER TRIAL
I. Background
This unfortunate dispute has arisen between the owners of two residential properties located on a private road ending in a cul-de-sac known as Northside Lane in Westport, Connecticut. The defendants (Hancocks) own 2 Northside Lane on the north side and at the eastern end of Northside Lane where it intersects with North Avenue. The plaintiffs (Lilliens) live at 5 Northside Lane located at its westerly end, the cul-de-sac, close but not adjacent, to the Hancock property. Northside Lane itself is situated on a right-of-way jointly owned by the owners of the seven residential properties it serves. The Lilliens and the Hancocks each own an undivided one-seventh of the right-of-way in conjunction with the owners of the five other properties on the road. Exhibits 1, 8 and B.
Northside Lane is approximately sixteen feet wide with an additional unpaved "snow shelf" of about two feet on one side or the other of the paved road. The right-of-way on which the road Northside Lane is located is a slightly serpentine-shaped parcel, winding westward from North Avenue, about 850 feet long, and generally 40 feet wide except at its western terminus where it widens to allow for a turn around area at its end. A resolution approving the 16 foot width and snow shelf was passed by the Westport Planning and Zoning Commission in 1997. Exhibit 40.
For the remainder of this memorandum the paved private roadway is referred to as "Northside Lane," and the entirety of the jointly owned parcel on which the paved road is situated is referred to as the "right-of-way."
In the spring of 2005 the Hancocks, whose property is located at the corner of Northside Lane and North Avenue, had a stone wall built facing both roads. The wall appears to vary in height between five and eight feet and is two to two and a half feet wide. The construction cost was about $120,000. Subsequent to construction, the height of the wall has been reduced. In addition, the Hancock's driveway, which exits onto Northside Lane, was rebuilt and asphalt curbing was placed along a portion of the north edge of Northside Lane nearest North Avenue. This project took less than six months. The primary issues in 2005 were about the location of the Hancock wall in connection with wetlands, and a claim by the Town of Westport that the wall encroached on its right-of-way for North Avenue. Exhibits 15 and 16. The testimonies of the parties to this lawsuit disagree as to whether the Lilliens communicated to the Hancocks while the wall construction was ongoing any concerns about its location, relative to the right-of-way.
In 2008 the Lilliens commenced this action against the Hancocks claiming that the Hancocks had constructed the wall, driveway and asphalt curbing on a portion of the jointly owned right-of-way. The first count of the revised complaint seeks ejectment by means of an injunction ordering dismantling the portions of the wall, driveway and curbing located on the right of way adjacent to Northside Lane. Other counts allege trespass, wrongful obstruction of an easement, nuisance, wilful and wanton misconduct, violation of the Inland Wetlands and Watercourse Act, General Statutes § 22a-44, and seek an injunction to restrain a violation of zoning regulations. The Wetlands and Watercourses Act count was subsequently withdrawn; Dkt. Entry 150.00; and the claim to enjoin the violation of a zoning regulation was dismissed. Dkt. Entry 103.00.
The Hancocks filed an answer that was later amended. The amended answer denied most of the material allegations of the revised complaint and raised the following special defenses: laches, equitable estoppel, the doctrine of comparative hardship, adverse possession and res judicata based on a trial in another matter, Hancock v. Town of Westport, CV 07 4012848. The Lilliens are seeking equitable relief in the form of a mandatory injunction ordering removal or alteration of the wall, driveway improvements, and asphalt curbing. The Lilliens claim for money damages is limited to the claims of the alleged wilful and wanton conduct of the Hancocks. The defenses of comparative hardship and laches are directed toward the plaintiff's claims for injunctive relief. The remaining defenses are directed at all counts.
The trial of this case before the court took place from December 15 through 17, 2010. The parties submitted post-trial memoranda and replies up to February 10, 2011, and the court heard argument on June 7, 2011.
II. Discussion of Claims and Defenses
Among the pieces of evidence presented at trial were two surveys. One was prepared by Leonard Surveyors in March 2007 for the Lilliens, Exhibit 11 (Leonard Survey); the other was prepared by LaFerriere Associates for the Hancocks later in 2007, Exhibit 12 (LaFerriere Survey). Both surveys show significant portions of the Hancock wall constructed in 2005 are located outside the boundaries of the Hancock property. Specifically, on the Hancock's eastern boundary, along North Avenue, almost the entire length of the wall (about 150 feet) is located off the Hancock property. Exhibits 11, 12, see also Exhibit 58. On the southeastern and southern side of the Hancock property, where the Hancock property abuts the right-of-way, a majority of the 130 feet of wall is similarly outside the boundaries, although the portions of the wall nearest the driveway entrance are located on the Hancock premises. Id. At one point the wall extends nine feet onto the right-of-way. Id. Exhibit 11. The Hancock driveway, by necessity, crosses that part of the right-of-way between the Hancock's property and Northside Lane, and the Belgian block driveway surface ends when it meets the pavement of Northside Lane, although a strip of asphalt appears to smooth the transition from driveway to roadway. Exhibit 56. The asphalt curb divides Northside Lane from the northern portion of right-of-way for a length of maybe one hundred feet. Exhibits 11, 43, 50.
A considerable amount of testimony and other evidence were presented concerning the location of the Hancock wall along the east side of the Hancock property facing North Avenue, a public road. To the extent the wall is off the Hancock property in that area, it is on the right-of-way owned by the Town of Westport. Except for the claim raised by the Lilliens alleging a public nuisance, i.e., that the wall interferes with the visibility of drivers exiting Northside Lane onto North Avenue, this case does not involve the issues between the Hancocks and Westport about the portion of the wall along North Street.
There is presently pending litigation between the Hancocks and Westport about the location of the wall, CV 10 5013285.
The court will now turn first to the legal and equitable claims pursued by the plaintiffs and then to the special defenses asserted by the defendants. The plaintiffs' first claim is that of ejectment.
A. Ejectment. The cause of action of ejectment arises from the English common law and has now mostly evolved into an action by a landlord against a tenant. However, the cause of action seems to have a broader application although Connecticut appellate court references to the nature of the action and its essential elements are sparse. The Connecticut Supreme Court has suggested that a complaint alleging (1) the plaintiff owns the land, (2) the defendant wrongfully entered the land and dispossessed the plaintiff and continued to remain in possession, (3) the action deprived the plaintiff of the use of the land or rents and profits, and (4) the plaintiff suffered damages, stated a valid cause of action for ejectment. Simmons v. Parizek; 158 Conn. 304, 306 (1919). A few Superior Court cases have recognized the same elements. See Mitchell Trust, LLC v. Birmingham, Superior Court, judicial district of New London, D.N. 5657540 (May 28, 2004, Martin, J.); Mount View Plaza Associates, LLC v. Naugatuck, Superior Court, judicial district of Waterbury, CV 01 0166658, (January 25, 2004, Moraghan, JTR). Ejectment is not a proper claim when the plaintiff holds only an easement on property. Waterbury Trust Co. v. T.L.D. Realty Co., 121 Conn. 50 (1936).
The uncontradicted evidence presented in this case showed that the Lilliens owned an undivided one-seventh interest in the common right-of-way along with the Hancocks and the owners of the other parcels of land fronting the right-of-way. To the extent that the Hancock wall is located on a portion of the right-of-way without permission, the Lilliens are wrongfully dispossessed of their interest in that portion of the right-of-way under and behind the wall, and are continued to be deprived of that portion and its use. The Hancocks contend that since they are also part owners of the right-of-way, they have a possessory interest in that property, and their construction of the wall was not wrongful. This argument cannot withstand scrutiny. The plaintiff has quoted Peck v. Smith, 1 Conn. 103 (1814), and the court has located the quotation in the opinion of Justice Swift who said:
. . . it is not necessary that the plaintiff should have the exclusive right of possession to maintain ejectment. If a tenant in common be disseised by his co-tenant, he can maintain ejectment against him, and be put into possession with him. He recovers subject to the right of the co-tenant. It is sufficient, if he has the right of possession for any purpose; and then if he is ousted of that right, he may always recover possession so as to be enable to enjoy it, but not so as to destroy any co-existent right in another.
Peck v. Smith, supra, 1 Conn. 136. Contrary to the plaintiffs' assertion, this language is not a holding of the Connecticut Supreme Court because it appears in only one of seven opinions written in the case (albeit an opinion siding with the majority) and because it does not directly address the issues in the case which involved trespass. Nevertheless, the words of Justice Swift, written almost two hundred years ago appear to accurately reflect the state of the law then and now. The defendants also contend that the plaintiffs, who offered no evidence at trial as to the amount of monetary damages, if any, they incurred as a result of the Hancock structures' location on the right-of-way, have not established a prima facie claim of ejectment because such a claim requires a showing of damage. The court determines that a showing of monetary damages is not essential to the Lilliens' claim. The Lilliens are not seeking monetary damages on this claim, and the existence of the wall on the right-of-way is sufficient to establish a prima facie claim. The wall effectively dispossesses the Lilliens of their interest in the portion of the right-of-way on which the wall is situated as well as the portion of the right-of-way within the confines of the wall. The court finds that the elements of an ejectment claim have been proven as to the stone wall only, and whether the Lilliens are entitled to a remedy, and the nature thereof, will depend on the validity of the Hancock's special defenses and other considerations to be discussed herein.
B. Trespass. The essential elements of a civil trespass claim as stated in many Connecticut cases, are "(1) ownership or possessory interest in land by the plaintiff, (2) invasion, intrusion or entry by the defendant affecting the exclusive possessory interest of the plaintiff, (3) done intentionally, and (4) causing direct injury." City of Bristol v. Tilcon Minerals, Inc., 285 Conn. 55, 87 (2007); see also Avery v. Spicer, 90 Conn. 576, 579 (1916). On the issue of intent, it is enough that the defendant intended the act that produced the intrusion or entry. City of Bristol, supra, 284 Conn. 88. The Hancocks contend the Lilliens did not have an exclusive ownership or possessory interest in the portion of the right-of-way affected by the Hancock wall for the simple reason that they were not the exclusive owners or possessors of that property which was held in common ownership with their neighbors. In opposition to that contention, the plaintiffs cite several Superior Court cases which describe the elements of a trespass claim as affecting a party's "possessory rights" without the modifier "exclusive." See e.g. Day v. Gabriele, Superior Court, judicial district of Stamford-Norwalk, CV 03 0196802 (August 10, 2005, Tobin, J.); Robert v. Kunzli, Superior Court, judicial district of Tolland, CV 05 4002572 (February 9, 2006, Peck, J.). The latter case cites Campbell v. Rankin, 99 U.S. 261 (1878), wherein the United States Supreme Court held the obvious: that an actual possessor of land had superior rights to the land over a mere trespasser. Plaintiffs also cite Judge Corradino's decision in Zanoni v. Hudon, Superior Court, judicial district of Hartford-New Britain at Hartford, CV 91 399162 (sic) November 21, 1994 [ 1994 WL 673460], which stated that joint possession with another is sufficient to have the right to bring a trespass action. In fact, that statement had very little to do with the case before him, and Judge Corradino went on to say "[b]ut the exercise of possession must be exclusive, the acts of the persons claiming the right . . . must taken together evidence an exclusive right of possession." Indeed, on appeal the Appellate Court stated that to maintain an action in trespass, the plaintiff must have title or actual exclusive possession of the property. Zanoni v. Hudon, 42 Conn.App. 70, 74 (1996).
While the cases are not entirely clear, this court determines that an element of the claim of trespass is that the claimant have exclusive possession of the real property at issue. That requirement is set out in the portion of Bristol v. Tilcon Minerals quoted above, but was repeated by the Bristol court ". . . it is the right of the owner in possession to exclusive possession that is protected by an action for trespass . . ." Bristol v. Tilcon Minerals, Inc., supra, 284 Conn. 87-88. As more recently put by the Appellate Court:
Since trespass is a possessory action, it is incumbent on the plaintiff to prove possession, actual or constructive, in order to prevail . . . Actual possession required the plaintiff to demonstrate his exclusive possession and control of the land; constructive possession requires proof that the plaintiff was the owner of the land and no one else had possession.
Boyne v. Town of Glastonbury, 110 Conn.App. 591, 601, cert. denied, 289 Conn. 947 (2008). The plaintiffs, who share title and possession of the right-of-way with both the defendants and other neighbors, do not have the necessary exclusive possessory interest to maintain a trespass action.
C. Obstruction of an Easement. The Lilliens' third count alleges that the Hancock wall, the improvements to the Hancock driveway and the asphalt curbing along the travel way of Northside Lane have obstructed the Lilliens' easement to access their property. This claim seeks the equitable relief of an injunction ordering the Hancocks to remove the wall, the driveway and curbing from the commonly owned right-of-way. In Leabo v. Leninski, 182 Conn. 611, 615 (1981), the Connecticut Supreme Court stated that "[t]he rule is well established that the owner of an easement is entitled to relief upon a showing that he will be disturbed or obstructed in the exercise of his right [citing Wambeck v. Lovetri, 141 Conn. 558, 564 (1954).] The alleged easement rights of the Lilliens presumably arise from the co-ownership of the forty foot wide right-of-way, a part of which is the paved roadway Northside Lane, for the purposes of access to the Lillien property at the end of the cul-de-sac. While the Lilliens' rights do not technically arise from an easement, but rather from their co-owner status, it seems to this court that their claim is at least analogous to an interference with easement claim.
In Kelly v. Ivler, 187 Conn. 31 (1982), the Connecticut Supreme Court discussed the issue of impairment of an easement. It upheld a trial court determination that certain drainage pipes which diverted water onto an easement causing damage was an impairment of the easement, but in the absence of any proof as to the amount of damages incurred by the easement holder, reversed an award of $500.00 holding that only "minimal" damages should be awarded. Kelly v. Ivler, supra, 187 Conn. 45-47. Further, the Connecticut Supreme Court held that since the sole purpose of the easement was to provide the owners of the easement the right of passage to a beach, a fence erected by the servient owner of the land that "slightly" encroached on the easement area (by 7-1/4 inches) did not materially or substantially interfere with passage over the easement. Id. 47-49.
In this case the Hancock wall and other improvements have not been proven to "materially or substantially interfere" with the Lilliens' access to their home over Northside Lane. Certainly the wall does encroach more than a few inches into the right-of-way. However, the claim that the improvements were built onto the asphalt pavement of Northside Lane are not borne out by the evidence. Mr. Lillien adamantly testified that portions of the Hancock wall were built on the asphalt portion of Northside Lane, but the builder of the wall, Philip Law, testified that neither the wall, curbing or driveway encroached on the pavement of Northside Lane, and, more importantly, the multitude of pictures and the two surveys contradict Lillien and fail to show such encroachment, although it is difficult to ascertain where the curb ends and the pavement begins. In addition, there was uncontradicted evidence from other residents on Northside Lane that the wall and other improvements did not encroach on the road and had no material impact on access to their homes.
On the evidence before it, the court finds that the Lilliens' right-of-way and access to their residence have not been materially compromised, if compromised at all. It is clear that the wall itself does not impede in any fashion the flow of traffic east and west on Northside Lane, nor do the curb or driveway. Whether these improvements constitute a nuisance will be discussed in the following section, but the claim of obstruction of an easement must fail.
D. Nuisance. The fifth count of the Lilliens' complaint alleges nuisance. The allegations of the revised complaint are that (1) the Hancock wall obstructs "the site (sic) line from Northside Lane to and from North Avenue thereby impacting the plaintiffs' ability to access and egress Northside Lane," (2) the driveway and curb constrict the travel way of Northside Lane creating a traffic hazard; (3) water has been diverted onto Northside Lane exacerbating the deterioration of the road surface; and (4) the wall is structurally unsound.
The complaint itself does not specifically allege whether the Lilliens are claiming a public nuisance or a private nuisance, but in their post-trial papers, the Lilliens argue they have proven the existence of both a public nuisance and a private nuisance. While noting the Lilliens' failure to specify which type of nuisance was alleged in the complaint, the Hancocks' post-trial papers deal with both claims, and this court will consider both claims.
The elements of a public nuisance claim are: (1) that a condition on land controlled by the defendant has a natural tendency to create danger and inflict injury on persons or property; (2) the danger created is a continuing one; (3) the use of the land is unreasonable or unlawful; and (4) the nuisance is the proximate cause of plaintiffs' injuries and damage. In addition, the condition or conduct must interfere with a right common to the general public. Nuisances are public where they produce a common injury. Sinotte v. City of Watebury, 121 Conn.App. 420, 438 (2010) [citing Pestey v. Cushman, 259 Conn. 345, 355 (2003), and Boyne v. Glastonbury, supra, 110 Conn.App. 606.]
To establish a private nuisance and recover damages, the plaintiffs must show: (1) an unreasonable interference with the plaintiffs' use of their property; (2) the defendants' conduct was the proximate cause of the unreasonable interference. In order to determine what is unreasonable, the court must employ a balancing test and consider all factors involving the nature of the interference, and the use and enjoyment interfered with, and all surrounding circumstances. Pestey v. Cushman, supra, 259 Conn. 361.
A private nuisance claim does not require proof of exclusive possession by the plaintiff. Boyne v. Town of Glastonbury, supra, 110 Conn.App. 604. Therefore, a plaintiff may prevail on a private nuisance claim if a defendant has unreasonably interfered with the plaintiff's right to use and enjoy the subject property. Id. As stated by the Connecticut Supreme Court, "ultimately, the question of reasonableness is whether the interference is beyond which the plaintiff should bear under all the circumstances of a particular case, without being compensated." Pestey v. Cushman, supra, 259 Conn. 362.
The court concludes that the Lilliens' public nuisance claim is based wholly on the contentions that: (1) the Hancock wall impairs the sight-lines to the north and south as persons in vehicles heading eastward out of Northside Lane attempt to enter onto North Avenue, (2) the wall and asphalt curbs constrict the travel way of Northside Lane, and (3) the wall is structurally unsound. Each of these contentions, if proven, might show an impact on the safety of the public.
There was considerable evidence presented by the parties on the North Avenue sight-lines issue. Among others, the Lilliens called as witnesses the Westport Town Engineer Peter Ratkiewich and Bruce Hillson, a private engineer specializing in traffic issues. Ratkiewich wrote the letter informing the Hancocks that their request for a waiver of the town policy on encroachments had been denied. Exhibit 16. Ratkiewich prepared a memorandum dated August 14, 2007 discussing the Hancock wall and its effects on sight-lines. Exhibit 17. In that memorandum Ratkiewich stated that using the Connecticut Department of Transportation Design Manual sight-line requirements "a significant portion of the wall within the Town right-of-way [along North Avenue] needs to be removed to approximately ground level to afford the clear unobstructed sight distance called for." Id. The memorandum also recommended that an unspecified section of the wall along Northside Lane be removed to reestablish "adequate sight distance." Id. At trial, Ratkiewich testified about a Westport zoning regulation, Section 31-3 which prohibits the extension of any wall, fence or other obstruction "within thirty (30) feet of any corner triangle formed by the intersecting right-of-way lines . . . of any public or private street so as to interfere with traffic visibility around such corner . . ." Hillson testified at trial that he did a field investigation that showed from a point fifteen feet into Northside Lane the Hancock wall restricted sight distance northward on North Avenue to about 150 feet whereas the Connecticut Highway Design Manual recommends a distance of 280 feet when the speed limit of the intersecting road is 25 m.p.h. as it is on North Avenue. Exhibit J. (Conn. DOT Highway Design Manual) § 11-2.0.
The defendants called John Ivan from the University of Connecticut with a Ph.D. in civil and transportation engineering. Ivan measured sight distances northward on North Avenue from a point closer than fifteen feet from the actual intersection of Northside Lane and North Avenue. He testified that with no stop sign nor stop line on Northside Lane it was appropriate to measure sight-lines from a point closer to North Avenue than called for in the Connecticut Manual, and the location he used was more level than other parts of the private road, and more likely to be the place where vehicles exiting Northside Lane would stop before entering North Avenue. Measurements from that point showed a sight-line of 288 feet looking north and the only limiting factor in the view was a double-stemmed ash tree outside the Hancock wall facing North Avenue. Ivan concluded in his testimony and report that the wall did not limit the sight-line at all. Exhibit E, Figs. 2,4; Exhibits G and H.
The court determines that plaintiffs have not carried their burden of proving a public nuisance. The testimony and evidence from Ivan was clearer and more persuasive than the evidence presented by the defendants concerning the potential danger posed by the Hancock wall to drivers exiting Northside Lane. There was uncontradicted testimony from four non-party residents of Northside Lane that they encountered no difficulty exiting from Northside Lane, and that the Hancock wall did not impede the view. Further, there was no evidence of any kind to support the conclusory remark by Ratkiewich that the wall posed a danger to those traveling on Northside Lane. Finally, there was no evidence at all presented that the curbing raised a safety issue or that the wall was structurally unsafe.
The private nuisance claim focuses more on the effect the alleged nuisance has on the Lilliens' use and enjoyment of the right-of-way and private road. Mr. Lillien testified that the work on the Hancock driveway consisting of placing Belgian blocks as pavement on the portion closest to Northside Lane had the effect of increasing the slope of the driveway into the roadway and, coupled with the asphalt curbing along the side of the road, increased the flow of water onto Northside Lane which, when frozen, caused the pavement to deteriorate. Photographs in evidence show some deterioration of the pavement near the Hancock driveway. Exhibits 41, 50, 53-56. However, there is little evidence to show the condition of the pavement elsewhere on Northside Lane, which was apparently paved in the 1990s. It is unclear how the conditions in the exhibits differ from conditions at other locations on the roadway, and it is equally unclear what role the Hancock driveway and curbing played in causing the deterioration. For instance, a driveway immediately across Northside Lane appears to have the same pitch as the Hancock driveway (Exhibit 56) and other portions of the private road also evidence some damage. Exhibit 52 (showing an obvious patch on the pavement at the intersection with North Avenue.) A photograph apparently taken shortly after the wall and curbing were constructed shows considerable prior repair work on an area of Northside Lane adjacent to the Hancock property. Exhibit 43. One neighbor, Jerome Ewing, who lives at 1 Northside Lane (directly across the road from the Hancocks) testified that some ponding occurred on Northside Lane as a result of a stream that ran under the road, and that the ponding had not increased since 2005. Another neighbor, Daniel Horelick, confirmed that there had been no increase in the ponding and freezing of water on the road since 2005. The issue presented is whether the conditions complained of were caused by the Hancocks and whether they place a burden on the Lilliens or an interference with their rights beyond which they should not have to bear. In the absence of any professional or expert testimony linking the deteriorated pavement conditions to the Hancock driveway and curbing, and clearly contradictory evidence from Mr. Lillien and his neighbors, the court concludes that the Lilliens have not met their burden of proof. There is not a preponderance of credible evidence tending to prove that the wall, driveway and curb constructed by the Hancocks are the cause of deteriorating conditions on Northside Lane beyond that which would have occurred in any event.
The Lilliens have not proven their nuisance claims.
E. Wilful and Wanton Misconduct. In their remaining count, the Lilliens allege that the action of the Hancocks in constructing their wall and other improvements was wilful and wanton misconduct. The terms "wilful" "wanton" and "reckless" have been treated in Connecticut law as meaning the same thing, and conduct deemed wilful, wanton or reckless is deemed to be highly unreasonable conduct, involving an extreme departure from ordinary care in situations where a high degree of danger is apparent. Craig v. Driscoll, 262 Conn. 312, 342-43 (2003). It is more than a mere mistake resulting from inexperience or confusion, and more than thoughtlessness, inadvertence or inattention. Dubay v. Irish, 207 Conn. 518, 533 (1988). Punitive damages (which in Connecticut usually amount to the costs of litigation) may be awarded for wilful or wanton conduct. Gargano v. Heyman, 203 Conn. 616, 622 (1987) ("[T]he flavor of the basic requirement to justify an award of punitive damages is described in terms of wanton and malicious injury, evil motive and violence.").
The Lilliens have failed to prove that the Hancocks acted wilfully or wantonly in deciding to build, and building, their wall and other improvements. Mr. Hancock testified that they did not have a survey of their property to assist in locating where the wall would be constructed, but rather directed that the wall be built on what they believed were the remains of an old stone wall that marked the boundary of their property. Mr. and Mrs. Hancock testified credibly that they originally thought the wall was built on their property. Mrs. Hancock testified that a major reason for the wall was to block the glare of headlights from vehicles entering onto North Avenue from Mystic Lane and from vehicles turning into Northside Lane. Mrs. Hancock is still not convinced that the wall was improperly located. Philip Law, head of Old World Builders Traders Inc., oversaw the locating and construction of the Hancock wall. He testified that he built the wall on the location of a preexisting wall which ranged from in height from two to three feet along North Avenue down to just scattered stones along the Northside Lane portion. He testified that his experience in the Westport area was that a permit was not required for rebuilding a wall, and that he confirmed this in a phone call to Westport Town Hall. Law testified that no one, including Colin Kelly, told him to get a permit for the wall. Colin Kelly, conservation compliance officer of Westport, testified he had received a complaint in April 2005 about the wall. Kelly testified he visited the site and spoke to Law, asking him to erect a silt fence and to obtain a permit for the wall. Law put up the silt fence, but did not obtain the permit. Kelly testified he did not speak to either Mr. or Mrs. Hancock in April, and did not contact them until after the wall was completed. Kelly's concern related to the wall's effect on wetlands. Kelly sent a letter to the Hancocks in late September 2005 notifying them of violations concerning regulated activity within thirty feet of wetlands and building a wall without a permit. Exhibit 28. While there are clearly some conflicts between the testimony of Law and Kelly, there is no evidence except a disputed conversation between Mr. Lillian and Mrs. Hancock that anyone advised the Hancocks, until after its completion, of any problem with the wall or its location.
The plaintiffs argue that defendants ignored some pointed instructions and advice about walls and fences available at the Westport Conservation Department. Exhibit 22. However, one had to know such material was available, since it was not generally distributed in Westport. The evidence shows the Hancocks did not know of it, and Kelly, when he visited the site in April 2005, apparently saw no reason to advise them. The Westport Conservation Department eventually approved the wall.
There has been considerable litigation and controversy about the Hancock wall involving both the Lilliens and the Town of Westport. The Hancocks have not agreed with the Town or the Lilliens on numerous occasions. On the other hand, they have spent more than $50,000.00 in modifications to the wall to satisfy certain complaints. While persons might come to different conclusions about the reasons the Hancock wall is positioned in large part on property not wholly owned, or not owned at all, by them, and certainly a reasonable person could assign a degree of negligence to the Hancocks, nevertheless this court finds no persuasive evidentiary basis to conclude that the Hancocks' actions in locating and building the wall and thereafter were wilful or wanton.
The court now takes up the special defenses asserted by the Hancocks.
F. Laches. The defense of laches may be used to defeat an equitable claim such as a claim for injunctive relief. To establish a defense of laches, it must be proven that the delay in commencing an action was unreasonable or inexcusable and the delay unduly prejudiced the defendant. R.F. Dater v. Shelansky, 123 Conn.App. 725, 737 (2010). The defendants have not established a laches defense because the first element, unreasonable or inexcusable delay, has not been proven. While the evidence before this court tends to show that Mr. Lillian was unnecessarily reticent in making his concerns over the wall known to the Hancocks, his unrebutted testimony was that he was not sure if the wall was located in the right-of-way until after he had received the Leonard survey dated March 15, 2007. Exhibit 11. This case was commenced a little more than one year later, and the wall had already been built. It seems highly likely that this case and much of the ensuing controversy might have been avoided had the Hancocks known or been made aware that portions of the wall were off their property at a much earlier time. Nevertheless, the Lilliens cannot be charged with laches.
G. Comparative Hardship. The defendants contend that the doctrine of comparative hardship should bar the plaintiff from obtaining the equitable relief of an injunction. The doctrine is recognized in Connecticut, but as far as this court can tell, is only rarely discussed or employed by the courts. As stated by the Connecticut Supreme Court "where the conduct of the defendant was not wilful and inexcusable and where the granting of the injunction would cause damage to the defendant greatly disproportionate to the injury of which the plaintiff complains, and it appears that damages will adequately compensate the latter, in such cases it has been held that it would be inequitable to grant a mandatory injunction and the plaintiff has been remitted to his remedy by way of damages." Bauby v. Krasow, 107 Conn. 109, 115-16 (1927) (citing inter alia several Massachusetts cases). In Bauby the Connecticut Supreme Court upheld a trial court decision not to order the removal of a three-family residence which violated a covenant restricting structures to one-family homes where the larger structure did not adversely affect the availability of light, air and vision to the neighboring residence.
In Waterbury Trust Co. v. G.L.D. Realty Co., 124 Conn. 191 (1938), the defendant had erected, over the course of a year, a four-story brick commercial building on property which was allegedly partially subject to an access easement. The Connecticut Supreme Court upheld a decision denying a mandatory injunction ordering removal of part of the brick structure on the ground that the easement could not be exactly delineated, and on the further ground that because the plaintiff had not taken any action while construction continued it would be inequitable to order removal, citing Bauby. It was also noted that the defendant made its investments in good faith relying on title searches by competent counsel and the building did not impair the plaintiff's access, or cause the plaintiff any injury. Waterbury Trust Co. v. G.L.D. Realty Co., supra, 124 Conn. 199-200.
In Sisters of St. Joseph Corp. v. Atlas Sand, Gravel Stone Corp., 120 Conn. 168 (1935), the defendants substituted a thirty-inch pipe to carry water formerly flowing across their property in a natural stream. After the pipe was in place, plaintiff, upstream from the defendants, was subjected to between fifteen to eighteen floods per year where previously there had been only occasional spring flooding when ice jammed the natural water flow. The lower court found that the defendants' acts reducing the flow capacity by installing the pipe were a nuisance and ordered removal of the pipe which was by then located under several substantial buildings. The defendants claimed that the expense and losses associated with removing the pipe and restoring the stream far outweighed the damage to the plaintiff. The Connecticut Supreme Court held that the lower court had not abused its discretion in ordering the injunctive relief. The court found that the doctrine of comparative injury did not apply because the failure to insure the pipe was of adequate capacity was a failure to exercise sufficient care akin to the lack of due care in failing to locate one's boundary. The Sisters of St. Joseph court also distinguished Bauby by noting that in the latter case a money damage award was adequate, whereas constant flooding of one's lands destroys the enjoyment of real property a loss "so peculiar" as to not be properly compensable by money. Id. 177.
The cases applying the comparative hardship doctrine balance the degree of the offending party's negligence with the relative disparity between the costs of complying with a mandatory injunction and the benefits gained by the complaining party through enforcement of the injunction. For instance, in Bauby and Waterbury Trust, the benefits to the complaining party were deemed minimal compared to the cost of removing all or parts of a large structure. In Waterbury Trust the offending party also had gone to some lengths to assure its actions were appropriate. In Sisters of St. Joseph the Connecticut Supreme Court took note of the significant hardship to the complaining party to be alleviated by injunction while considering the slackness of the offending party's diligence in choosing a pipe size with too little capacity.
This case presents factors militating for and against the applicability of the comparative hardship doctrine. As set forth in Bauby, the doctrine is only utilized to steer a court toward a money damages award in lieu of imposing the expense of complying with an order to remove an encroachment. However, in this case both parties have heightened the difficulty of that approach by not presenting evidence as to the costs associated with removal or the amount of damages arising from the encroachment. The Lilliens have not suffered hardship to the extent imposed on the plaintiff in Sisters of St. Joseph, and the Hancocks' degree of culpability for the encroachment, while not wilful or wanton as noted earlier, was less excusable than found in Waterbury Trust to be attributable to the offending party.
Having considered the matrix of facts and law presented in this case, the court determines that, while a close question, the doctrine of comparable hardship does not apply. It is, after all, a wall we are dealing with, not an office building nor a large residence, and removing it, while imposing a significant, if unknown, expense, is unlikely to be as costly and certainly not as disruptive as removing a larger, habitable structure.
H. Injunctive relief. The Hancocks also argue that the Lilliens have not made the necessary showing to justify the injunctive relief of ordering the removal of any or all of the improvements. Essentially, they contend there will be no irreparable injury if the improvements are not removed. The court agrees that the plaintiffs have not proved any irreparable injury caused by the driveway or asphalt curbing; in fact, the claim of ejectment has not been proven as to either improvement. The driveway, along with other driveways along Northside Lane, necessarily occupies a portion of the right-of-way. The encroachment, if any, of the curbing is minimal at best, and does not support a claim of ejectment. However, the stone wall presents a different story. For two reasons, set forth below, the plaintiffs' arguments are not persuasive.
There is convincing evidence that a substantial portion of the wall along Northside Lane is improperly located on the commonly owned right-of-way. The court determines that the existence of irreparable harm is not the sole basis for granting an injunction, and that the plaintiffs' success on their claim of ejectment itself provides the basis for an order removing, or ejecting, the Hancock wall. As noted earlier, the wall effectively denies the plaintiffs the use and enjoyment of their one-seventh interest in that part of the right-of-way underneath and behind the wall. The action of ejectment has been authoritatively defined as seeking the "specific restitution" of land. Black's Law Dictionary (9th ed. 2009) 594 ([citing Heuston, Salmond on the Law of Torts (17th ed. 1947)]. Other authorities are to the same effect. An appropriate remedy in an ejectment case is a judgment of possession. 25 Am.Jur.2d., Ejectment, § 49. The result of a successful ejectment claim is to put the plaintiff in possession of the subject land. Dobbs, Law of Torts, § 50, pp. 97-98 (West Group, 2000). There is no other way known to this court to place the plaintiffs in effective joint possession of the whole of the right-of-way than to give actual meaning to the word "ejectment" and order removal of the Hancock wall from the right-of-way.
In addition, the law in Connecticut (and elsewhere) recognizes that interests in real property are more often susceptible to the protections of equitable remedies such as an injunction than other interests. See Sisters of St. Joseph, supra, 120 Conn. 177 (". . . it is not alone tangible physical injury and damage which equity regards.") For instance, Connecticut courts have found specific performance an appropriate remedy for breach of contract claims involving the purchase or sale of real property. See e.g. Jaramillo v. Case, 100 Conn.App. 815-28 (2007). Indeed, the Appellate Court has likened the remedy of specific performance to "a form of injunctive decree." Marguarit Roche/Meditz Hackett, Inc., v. Riverbend Executive Center, Inc., 74 Conn.App. 412, 421 n. 2 (2003) [citing Dobbs, Law of Remedies (2d ed. 1993) § 12.8(1).] The Connecticut Supreme Court has held that in cases regarding restrictive covenants on real property, there is an exception to the general rule that substantial irreparable harm must threaten before an injunction will issue. "A restrictive covenant may be enforced by injunction without a showing that violation of the covenant will cause harm to the plaintiff, so long as such relief is not inequitable." Hartford Electric Light Co. v. Levitz, 173 Conn. 15, 22 (1977). The court determines, while a considerable undertaking, that it is not inequitable to order the Hancocks to remove the wall from the right-of-way. This determination rests in part on the analysis set forth above in dismissing the Hancocks' comparative hardship defense, and also in recognition that while reasonable people may differ as to the extent of the Lilliens' injury, the responsibility for the unfortunate placement of the wall lies with the Hancocks.
I. Other Special Defenses and Defense Arguments. The Hancocks also pleaded special defenses of equitable estoppel, adverse possession, and res judicata. These defenses were not briefed by counsel in the post-trial memoranda, and the court deems them abandoned. One issue that was briefed by the Hancocks was an argument based on a recorded Road Maintenance Covenant and Agreement signed in 1990 by the then residents on Northside Lane including the Hancocks and binding on the Lilliens pursuant to language in their deed. Exhibit 7, Exhibit C, Exhibit 1. The Road Maintenance Covenant and Agreement states that the necessary maintenance and repair of the "roadway right-of-way and turnaround" as determined by the majority of owners on Northside Lane, shall be equally shared by the owners. The Hancocks contend that four neighbors, Scott Fishoff, Jerome Ewing and Jan and Dan Horelick testified that they did not want the Hancock wall torn down, and this represents a practical majority of the owners.
However, it is doubtful that the erection of the wall or its removal is maintenance or repair. Furthermore, the defendants have only produced the testimony of six of fourteen owners (including themselves) and there is no evidence of the matter being taken up by all the owners or that a vote was ever held on the issue of removing the wall, or for that matter, its construction. The court is not persuaded by this argument.
III. Conclusion and Order CT Page 14576
The court finds in favor of the plaintiffs on the first count of the revised complaint alleging a claim of ejectment, with respect to the wall, and finds that the defendants' special defenses and other arguments directed at the ejectment count to be unavailing. The court further finds that the plaintiffs have not proven the remaining claims in the case.
The court hereby orders the defendants to remove those portions of the wall originally constructed in 2005 which are located on the right-of-way extending westward from North Avenue. This removal is to be completed no later than November 1, 2011.
SO ORDERED.