Opinion
No. CV 05 4002289
July 14, 2005
MEMORANDUM OF DECISION ON APPLICATION FOR PERMANENT INJUNCTION
The plaintiff, Glen Rice, seeks a permanent injunction "ordering the defendant to cease causing run off and flooding on the plaintiff's property." After a hearing in which the defendant was summoned to show cause why the injunction should not issue, the court finds the following facts.
The plaintiff purchased real property on Boulder Dell Road in East Haddam by warranty deed dated June 13, 2003. There was an existing house on the plaintiff's property at the time he purchased it. The property of the defendant, Shawn Donovan, was located adjacent to the plaintiff's property. When the plaintiff purchased his property there was no house on the defendant's property.
The plaintiff's property, which consisted of more than 5 acres, sloped down on the west side and was historically wet, but for many years prior to the plaintiff's purchase of the property, the previous owner had been able to mow the low lying area at least 3 times per year.
Sometime after the plaintiff purchased his property, the defendant built a house on the adjacent land. In the course of building the house he elevated portions of his land five to six feet. In addition, he installed pipes which drain water onto the plaintiff's land.
The Town of Haddam approved the defendant's plan for construction of his house and there was no evidence that the defendant was in violation of any town order with respect to drainage. At the time the plaintiff purchased his property he was aware that the Town of Haddam had an easement to drain over the defendant's property.
The plaintiff presented evidence that after the construction of the defendant's house, there is more water on his property. The defendant presented evidence that the low lying part of the plaintiff's property has always been wet, and the construction of the defendant's house did not substantially change the water present on the plaintiff's property.
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 the circumstances of relative advantage to the actor and disadvantage to the adjoining landowners, as well as social utility. Page Motor Co. v. Baker, 182 Conn. 484, 488-89, 438 A.2d 739 (1980). In Page, the Supreme Court abandoned the "common enemy rule" under which a landowner incurred no liability for diverting or repelling surface water which came upon his land even though such diversion might cause damage to the property of his neighbor. The Court cited the rationale of the New Jersey Supreme Court in Armstrong v. Francis Corporation, 20 N.J. 320, 120 A.2d 4 (1956):
The court said that the casting of surface waters from one's own land upon the land of another, in circumstances where the resultant material harm to the other was foreseen or foreseeable, would appear on the face of it to be as tortious and actionable as was any other unreasonable use of the possessor's land. Concluding that the problems raised by the diversion of surface waters should be approached under tort rather than property concepts, the court declared its adherence to the reasonable use rule, which was said to have the particular virtue of flexibility, since the issue of reasonableness became a question of fact to be determined in each case under a consideration of 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 whether the utility of the use of the land outweighed the gravity of the harm resulting. Although we now announce our decision to replace the common enemy doctrine with the rule of reasonable use, we reiterate that our redefinition of the duty of a landowner with respect to foreign surface waters cannot avail the present plaintiff. In this case, the plaintiff cannot recover because it was not able to establish that the defendants' conduct was a substantial factor in causing the damage it suffered.
182 Conn. 489-91.
The plaintiff seeks a mandatory permanent injunction.
A mandatory injunction . . . is a court order commanding a party to perform an act. Tomasso Bros., Inc. v. October Twenty-Four, Inc., 230 Conn. 641, 652, 646 A.2d 133 (1994). "Relief by way of mandatory injunction is an extraordinary remedy granted in the sound discretion of the court and only under compelling circumstances . . . Ordinarily, an injunction will not lie where there is an adequate remedy at law." (Citation omitted; internal quotation marks omitted.) Monroe v. Middlebury Conservation Commission, 187 Conn. 476, 480, 447 A.2d 1 (1982); accord Harvey v. Daddona, 29 Conn.App. 369, 377, 615 A.2d 177 (1992) ("[i]njunctions should not be issued when damages can adequately protect the injured party"). Moreover, "[w]here the granting of the injunction would cause damage to the defendant greatly disproportionate to the injury of which the plaintiff complains, it may be held inequitable to grant a mandatory injunction and the plaintiff may be remitted to her remedy by way of damages." Moore v. Serafin, 163 Conn. 1, 6-7, 301 A.2d 238 (1972). In sum, "[m]andatory injunctions are . . . disfavored as a harsh remedy and are used only with caution and in compelling circumstances." 42 Am.Jur.2d 560, Injunctions § 5 (2000).
Cheryl Terry Enterprises, Ltd. v. Hartford, 270 Conn. 619, 650-51, 854 A.2d 1066 (2004).
The plaintiff produced no expert testimony as to what was causing the increase in water on his property or the actual amount of the increase. Under the reasonable use rule of Page, the proof of increase in water flow alone is insufficient. Presumably, putting a structure on land which was previously unimproved will cause an increase in runoff under some circumstances, which increase is not actionable. Under Page the plaintiff must prove that the defendant's conduct was not reasonable, which necessarily involves some expert testimony as to what the defendant could have done differently such that he could have improved his property while avoiding excessive runoff onto the plaintiff's property.
The plaintiff seeks the court to order the diversion of certain drain pipes. However, the evidence suggested that other factors, such as the elevation of the level of the defendant's property, were also responsible for the increased water. Without some expert opinion as to what, if anything, is causing the plaintiff to suffer as a result of the defendant's actions the court has no basis on which to conclude that the defendant's conduct is unreasonable, and, therefore, actionable, or to attempt to fashion any injunctive remedy.
For the foregoing reasons the application for permanent injunction is denied. Since it is the normal procedure to seek a temporary injunction at the show cause stage of the proceedings, this ruling is without prejudice to the plaintiff's right to seek a permanent injunction after the complaint is served, the pleadings are closed and the case is tried.
By the court,
Aurigemma, J.