Opinion
No. CV04 4000600S
May 31, 2005
MEMORANDUM OF DECISION RE APPLICATION FOR TEMPORARY INJUNCTION
The issue before the court is whether to grant the plaintiff's application for temporary injunction, in which she asks the court to enjoin the defendants from maintaining a fenced animal pen and a box truck housing two goats and five sheep near her rear property line.
Facts
Based on credible testimonial and documentary evidence and a site inspection of the properties involved, the court makes the following findings of fact. The plaintiff, Joanne Morytko, owns a home located at 65 Westfort Dr., in Meriden's Westfort Highland subdivision. The first named defendants, Richard Westfort, Sr. and Carol Westfort, are farmers whose property borders the plaintiff's property. The remaining defendants — Richard Westfort, Jr., his wife, Billie Jo Westfort, and John Ranno — are residents of the subdivision.
The Westfort Highland subdivision was developed in 1986. Previously, the land had been part of Westfort, Sr.'s farm. The farm was a working dairy until 1975. After Westfort, Sr. subdivided the property, he retained 16.77 acres and continued to farm it. Since then, the farm's primary products have been greenhouse plants and hay, but Westfort, Sr. has continued to raise a few head of livestock, and to allow his son Richard Westfort, Jr. to use the property for the same purpose. Both the plaintiff and defendant agree that Westfort, Sr. has kept livestock on the property uninterruptedly since before the plaintiff bought her home. Westfort, Sr. generally kept the livestock at a distance sufficient to keep the smell and noise from reaching the plaintiff's home. In 1998 or 1999, a dispute arose between the plaintiff and the defendants concerning a proposed rules change in the subdivision. The subdivision's homeowners voted on the proposed changes and the plaintiff's side prevailed. Shortly thereafter, Westfort, Sr. moved some cattle to the area immediately behind the plaintiff's property. The plaintiff claimed that the move was in retaliation for her opposition to Westfort, Sr.'s rules proposal. The plaintiff did not like having cattle near her property, and Westfort, Sr. removed them shortly thereafter.
In 2004, the plaintiff's husband was elected to the subdivision's Board of Directors. One of the new board's first decisions was to install street signs throughout the development. One lot on which the board proposed to place a sign was John Ranno's. Ranno objected to the placement of the street sign, and he admits that in retaliation he threatened to lease the portion of Westfort Sr.'s farm adjoining the plaintiff's property and place livestock there. Ranno also admits that he knew the plaintiff did not like to have livestock near her property.
Ranno stated to a representative of the subdivision's board that he intended to place a box truck on the property adjoining the plaintiff's property and to bring in animals and wait it out until the street sign was removed. Ranno told Robert Green, an abutting neighbor of the plaintiff, that Ranno had a couple of plans and that one was coming shortly. Soon thereafter, the animals and fence pen appeared. Ranno never actually leased the property, but livestock was placed there nevertheless. Westfort, Jr. erected a small sheep pen directly behind the plaintiff's property on his father's remaining 16.6 acres of farmland and placed five sheep and two goats in it.
Robert Green was a witness called by the plaintiff. The day after he testified, the fenced pen area was extended to include an area behind his home.
Another plan Ranno spoke of was delivery of the box truck, which was delayed because Ranno was painting it orange. The box truck has a goat painted on it and the words "Baa Baa." The box truck is Ranno's; he purchased it from his wife. Ranno's wife employs the defendant, Billie Jo Westfort, the wife of Richard Westfort, Jr. Westfort, Jr. installed the box truck with Ranno's help. The truck was placed behind the plaintiff's property with the side painted with the goat and the words "Baa Baa" facing the plaintiff's yard.
Ranno helped Richard West, Jr. unload the animals and assisted him in putting up the fence. Ranno painted the base color and the "Baa Baa" on the box truck and the Westfort children painted the goat on it. Ranno thinks the animals were on the farmland prior to the "feud starting."
The plaintiff claims that the animal pen, including the box truck, has interfered with her peaceful enjoyment of her property and reduced her property's value, on account of the odor, noise, dust and flies that it allegedly produces. She filed a complaint in three counts. The first count claims that the fence or pen is a "malicious structure," the erection of which violates General Statutes § 52-570. The second and third counts claim that the maintenance of the animals and animal pen constitutes a common-law nuisance. The plaintiff seeks temporary and permanent injunctions against the structure and the nuisance; damages; statutory treble damages and punitive damages.
The defendants filed an answer, denying all of the allegations in the plaintiff's complaint. Additionally, the defendants filed a special defense, claiming that Westfort Sr.'s farming operation is protected from nuisance litigation by General Statutes § 19a-341, Connecticut's "Right to Farm" law.
Discussion 1. The Standard for Granting an Application for Temporary Injunction
It is well settled in Connecticut that "a plaintiff is entitled to a preliminary or temporary injunction only if that plaintiff proves a reasonable likelihood of success on the merits and irreparable harm to him if the injunction is not issued." Scatena v. Rowland, 47 Conn.Sup. 251, 253, 785 A.2d 1232 (2001).
To demonstrate that she is likely to prevail on the merits, the plaintiff must present enough evidence to make her right clear, but need not put on a full trial on the merits. "[A] temporary injunction is an extraordinary remedy . . . It should not be granted where, among other things, the plaintiff's legal rights are not clear." (Citation omitted.) Zoning Commission of Sachem's Head Assn. v. Leninski, 34 Conn.Sup. 66, 70, 376 A.2d 771 (1976). However, "a hearing on a preliminary injunction is not a forum for a full investigation into the merits of the plaintiffs' claims." Norwalk CORE v. Norwalk Redevelopment Agency, 296 F.Sup. 456, 459 (D.Conn. 1968). The plaintiff need not, for example, present expert testimony on the effect of the defendant's conduct on the value of her property. See Pestey v. Cushman, 259 Conn. 345, 364, 788 A.2d 496 (2002).
"A finding that a substantial probability of irreparable harm exists requires a two part analysis: (1) whether there is a substantial probability that the alleged harm will result; and (2) whether the harm, if it occurs, will be irreparable." International Assn. of Firefighters, Local 786 v. Serrani, 26 Conn.App. 610, 616, 602 A.2d 1067 (1992). Harm is irreparable when it "cannot be adequately compensated in damages or cannot be measured by any pecuniary standard . . ." (Internal quotation marks omitted.) Connecticut Assn. of Clinical Labs. v. Connecticut Blue Cross, Inc., 31 Conn.Sup. 110, 113-14, 324 A.2d 288 (1973).
2. The "Malicious Structure" Statutes
The Connecticut General Statutes empower a landowner to sue a neighboring landowner or lessee "who maliciously erects any structure . . . with intent to annoy or injure the plaintiff in his use or disposition of his land." General Statutes § 52-570. The legal remedy described in § 52-570 has an equitable counterpart in § 52-480, which provides "[a]n injunction may be granted against the malicious erection, by or with the consent of an owner, lessee or person entitled to the possession of land, of any structure upon it, intended to annoy and injure any owner or lessee of adjacent land in respect to his use or disposition of the same."
Cases decided under the statutes have parsed the statutory terms into four required elements. Those four elements are "[a] structure erected on the owner's land; a malicious erection of the structure; an impairment thereby of the value of adjacent land; [and] an intent by means of the structure to injure the adjacent owner in the enjoyment or disposition of his land." Whitlock v. Uhle, 75 Conn. 423, 426, 53 A. 891 (1903).
In the present case, a fence clearly falls within the meaning of a "structure" under § 52-480. See DeCecco v. Beach, 174 Conn. 29, 32, 381 A.2d 543 (1977); Pressman v. Krause, Superior Court, judicial district of New Haven, Docket No. 93 0350902 (September 12, 1987, Blue, J.) ( 20 Conn. L. Rptr. 183, 184). The term "structure" applies not only to buildings and the like, but to any construction that is artificially built, constructed or erected by persons. Dalton v. Bua, 47 Conn.Sup. 645, 648, 822 A.2d 392 (2003) ( 34 Conn. L. Rptr. 241). The defendants concede that the pen is such a structure. Moreover, although no cases have directly addressed whether a movable piece of personalty, such as the box truck, is a structure under the statute, given that it is artificial, was constructed by persons and was delivered and placed in location by a tractor, the court finds that it too is a structure for purposes of the statute.
The defendants concede that Ranno knew the plaintiff didn't like livestock near her property line. The Westforts also knew this. Ranno admits that he threatened to place livestock there during the dispute over the street sign. Rather, the defendants argue that the presence or absence of malice is to be determined exclusively from the pen's character, not from the relevant conduct. Relying on DeCecco, the defendants argue that "[i]f the structure serves a legitimate purpose, it is not affected by the statutes" and that the structure's purpose "is to be determined by the character, location and use of the structure rather than by an inquiry into the actual motive of the party erecting it." In the defendants' view, the pen has a legitimate purpose — the containment of Westfort, Jr.'s family pets. As such, the defendants argue that the plaintiff has failed to establish the "malice" and "intent to injure" prongs of the Whitlock test, regardless of what an inquiry into Ranno's actual motive might reveal.
The defendants misread DeCecco and Whitlock. Those cases address how a court determines intent when the defendant denies a malicious motive. Neither case, however, suggests that the character of a structure and the incidental purpose it serves may excuse malicious intent. In DeCecco, for example, the defendant did not admit that he intended to harm his neighbor when he erected a ten-foot stockade fence that blocked off her view of the waterfront; he claimed instead that the fence legitimately protected his privacy. DeCecco v. Beach, supra, 174 Conn. 30-31. The court held that a malicious motive could nevertheless be inferred from the fence's "character, location and use [rather] than by an inquiry into the actual motive in the mind of the party erecting it." Id., 32. Yet the court further held that "once it is established that malice was the primary motive in its erection, the fact that it also served to protect the defendant's premises from observation must be regarded as only incidental, since to hold otherwise would be to nullify the statutes." Id., 32-33.
Based on the evidence and reasonable inferences drawn therefrom, the plaintiff is likely to prevail against the defendants, including Westforts, Sr. and Jr., for participating in and consenting to the malicious erection of the structures with intent to annoy. The defendants' testimony to the contrary lacks candor
At to the last element of the Whitlock — an impairment to the value of her land, suffice it to say, "homeowners are qualified to testify as to their personal opinion regarding the value, or diminution in value, of their properties"; (Internal quotation marks omitted.) Pestey v. Cushman, supra, 259 Conn. 364; which the plaintiff has done to the court's satisfaction.
3. Common-Law Private Nuisance
The Connecticut Supreme Court recently clarified the required elements of a common-law private nuisance claim. Pestey v. Cushman, supra, 259 Conn. 358. To prove a private nuisance, a plaintiff must prove three things. First, she must show that there was an invasion of her use and enjoyment of her property. Id. Second, she must show that "the defendant's conduct was the proximate cause of the invasion." Id. Third, she must demonstrate that "the invasion was either intentional and unreasonable, or unintentional and the defendant's conduct was negligent or reckless." Id.
In the present case, the plaintiff has demonstrated the first and second elements of a private nuisance claim — an invasion of the use and enjoyment of her property, proximately caused by the defendants. While the plaintiff and defendants disagree about the extent of the invasion, even the defendants concede that a "slight stercoraceous odor" (the scent of manure) wafts from the farm property onto the plaintiff's property.
The plaintiff claims that the third element is satisfied, because the invasion is "intentional and unreasonable." Assessing this claim requires an inquiry into the meaning of the word "unreasonable" in the private nuisance context. The term has caused considerable confusion, and the opportunity to clarify it was among the reasons the Connecticut Supreme Court transferred Pestey to itself from the Appellate Court. Pestey v. Cushman, supra, 259 Conn. 351-52.
Pestey teaches that, in determining whether an invasion is unreasonable, the key focus is on the reasonableness of the interference imposed upon the plaintiff and not upon the reasonableness of the defendant's conduct. Id., 359-60. "[W]hile an unreasonable use and an unreasonable interference often coexist, the two concepts are not equivalent, and it is possible to prove that a defendant's use of his property, while reasonable, nonetheless constitutes a common-law private nuisance because it unreasonably interferes with the use of property by another person." Id. For example, "an industrial enterprise who properly locates a cement plant or a coal-burning electric generator, who exercises utmost care in . . . minimizing the harm from the emission of noxious smoke . . . and who is serving society well by engaging in the activity may yet be required to pay for the inevitable harm caused to neighbors." Id., 359.
There is no bright-line rule to guide a court in determining when an interference is unreasonable; rather, the determination is to be made "upon a balancing of the interests involved under the circumstances of each individual case." Pestey v. Cushman, supra, 259 Conn. 361. The Supreme Court instructs lower courts to consider "all relevant factors" in making the determination. Neighbors are required to accept some level of interference, and "[a]ccordingly, 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.
One of the factors mentioned by the Supreme Court to be considered is whether the defendant has taken feasible precautions to avoid the interference. Id., 361. Given that the plaintiff is likely to prevail on claim of malicious intent, that is to keep the animals at the plaintiff's property line specifically to cause annoyance, it is likely that the plaintiff will prevail in showing that the defendant has not taken any precautions let alone feasible precautions to pen the animals elsewhere as it has in the past and that she will prevail in her quest for compensation.
4. The Right to Farm Statute
The defendants claim as a special defense that, even if their conduct constitutes a private nuisance, it "is protected by Connecticut General Statutes Section 19a-341, Connecticut's right to farm statute." Section 19a-341 provides that "no agricultural or farming operation . . . shall be deemed to constitute a nuisance" on account of "odor from livestock, manure, fertilizer or feed," "noise from livestock," or "dust created during plowing or cultivation operations." General Statutes § 19a-341(a)(1)-(a)(3). The statute does not apply "whenever a nuisance results from negligence or wilful or reckless misconduct in the operation of" the farm. General Statutes § 19a-341(c).
Based on the facts elicited to date, and as discussed supra, the plaintiff is likely to succeed in her attempt to demonstrate that the defendants' conduct was willful. Therefore, the defendants are unlikely to prevail on their special defense that they are protected by § 19a-341.
5. Irreparable Harm
For the foregoing reasons, the plaintiff will probably succeed on the merits of her claims that she has been harmed under the malicious structure statute and common-law nuisance. In order to obtain a preliminary injunction she must show whether these harms are "irreparable." To recap, a harm is "irreparable" when it "cannot be adequately compensated in damages or cannot be measured by any pecuniary standard." Connecticut Assn. of Clinical Labs. v. Connecticut Blue Cross, Inc., supra, 31 Conn.Sup. 113-14. Put differently, a harm is not irreparable if it can be "assuaged by money." Scoville v. Ronalter, 162 Conn. 67, 75, 291 A.2d 222 (1971). In the present case, based on the court's site inspection and the credible evidence to date, the court is not persuaded that the harm claimed by the plaintiff, if such is found after a hearing on the merits, cannot be assuaged by money whether it is to compensate for a claimed diminution of the value of the property and/or for the cost to landscaping the property to block off or diminish the sights and sounds which are offensive to her.
CONCLUSION
For the reason that the harm of which the plaintiff complains is not irreparable and can be assuaged by money, the application for temporary injunction is denied.
BY THE COURT
TANZER, JUDGE