Opinion
No. CV-01-096955
January 13, 2004
MEMORANDUM OF DECISION
The plaintiff owns a parcel of land, which consists of 23 undeveloped acres. The land is sited downhill from the defendant's land The plaintiff acquired the property in 1998 from a corporation controlled by the plaintiff's president. The first corporation acquired it in 1995.
The defendant is a condominium association. The condominium complex was built in the 1980s. The drainage system in question remains unchanged from its original configuration.
Both properties are downhill of other properties and Connecticut Route 66. The plaintiff seeks injunctive relief and, in the alternative, damages. It relies, in part on Farnham, Water and Water Rights (1904); the laws of trespass and nuisance; and arguments by analogy to other types of cases involving injunctive relief.
It is appropriate to review the law of surface waters as it relates to the plaintiff's claims for relief. Since a claimant must have no adequate remedy at law to obtain equitable relief, an initial review of the law of surface water and damages is appropriate. Whether the relief is by law or equity, the general law regarding this situation applies; it is the nature of the injury, and how it may or may not be remedied, that dictates the available relief.
This case involves the rights of landowners when development of the land of one allegedly affects the course or effect of surface water on the land of the other. Generally, the law concerning this situation is found in Tide Water Oil Sales Corporation v. Shimelman, 114 Conn. 182 (1932) (internal citations omitted). "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 and quantity. Id. at 184. 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." Id. at 189. (In some earlier cases, the standard is substantial injury; the court makes no assumption that one description demands a higher degree of proof than the other.)
In Page Motor Co. v. Baker, 182 Conn. 484 (1980), the rule set forth in Tide Water was modified by the rule of "reasonable use," which states that a 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. Id. at 488-89. Reasonableness is determined on a case-by-case basis. A court must consider all of the relevant circumstances, including the amount of harm caused, its foreseeability, the purpose with which the action was taken, and whether the utility of the use of the land outweighs the gravity of the harm done, Peterson v. Oxford, 189 Conn. 740, 745 (1983). The basic measure of damages for injury to real property is the resultant diminution in its value. Blakeman v. Tobin, 177 Conn. 597, 598 (1979). A limitation on this rule is that while the diminution in value may be determined by the cost of repairs, such cost must not exceed the former value of the property and repairs shall not enhance the former value of the property. Whitman Hotel Corporation v. Elliott Watrous Engineering Co., 137 Conn. 562 (1951).
As to the plaintiff's application for injunctive relief, it is well established that a party has the burden of proving irreparable harm and lack of an adequate remedy at law. A request for such relief is addressed to the sound discretion of the court. Tomasso Brothers, Inc. v. October Twenty-Four, Inc., 230 Conn. 641, 648 (2002). The cases cited by the plaintiff in its quest for injunctive relief are either inapplicable or selectively quoted. The plaintiff relies on eavesdropping cases that are completely different in character from the case at bar. Indeed, such cases were considered trespasses, and thus injunctive relief was appropriate. The treatise on which the plaintiff so heavily relies, Farnham, supra, makes clear that even in 1905, surface water cases required proof of injury before damages or injunctive relief could be granted. None of the cases or treatises cited by the plaintiff, when read fairly and completely, stand for the proposition that an injunction might be appropriate without injury.
While the plaintiff has posited a historical review of the common enemy rule, it has ignored the modern (post-1862) version of that rule as it is set forth in Tidewater and its progeny. It urges the court to apply an approach based in property law, an approach first abandoned in the 1800s in favor of the modern tort law approach.
It is important to note that this is a case involving surface water. In its brief the plaintiff cites roof dripping cases for the proposition that the water flowing onto one's property from another's is injury enough for the court to act. While this may or not be true of water dripping from roofs built close to a property line, it is not true of surface water and has no relevance here. (See Farnham, at Sec. 888a — "Roof water" as distinct from Sec. 888 — "Rendering surface impervious" — an owner must, if paving, provide outlet or retention for water so as not to injure adjoining properties. While the plaintiff broadly portrays the two different types of cases as trespass or nuisance, they are distinct. The eaves dripping cases involve overhanging structures, and trespass to property. Surface water cases first abandoned the law of property in favor of the law of torts in Basset v. Salisbury Mfg. Company, 43 N.H. 569 (1862); See Restatement (Second) of Torts, Sec. 833, and notes thereto. While under the law of property, water dripping from an overhanging e*ave was actionable, the law of torts, which governs surface water, requires the water do damage before a right of action accrues.
It is clear that an injury must be proven for either damages or injunctive relief, and evidence must be reviewed to determine whether or not the plaintiff has proven that the defendant has (1) altered the volume or flow of surface water; (2) in a way that has caused injury or irreparable harm. See Gould, The Law of Water Secs. 513-21. The plaintiff's argument that no injury is required would mean, essentially, that no development could ever change the course of water flow, even if the change is inconsequential to surrounding landowners. No citation offered by the plaintiff stands for such a proposition, nor would such a policy be beneficial in any way.
The court has made a thorough review of all the evidence, which relied heavily on expert calculations regarding water flow and volume. What is clearly true is that the defendant (when it owned all the land in question) built a condominium project on the more highly elevated section of the property. In so doing it rendered certain areas of the raw land impervious to water, it provided for drainage and retention of the water whose "sheeting action" had been altered by the construction.
The plaintiff offered evidence as to the increased volume of the discharge. The court is unpersuaded that the change in volume is significant. The expert testimony offered by the plaintiff, through Mr. Smilas, was based on complex calculations involving many assumptions about extraordinary storms, rates of water flow, and impervious surfaces, but omitted certain information and calculations which make his opinions unreliable. He did not consider the effect the Woodgate detention basin might have on the water flow, nor did he calculate the amount of surface water runoff entering the defendant's drainage systems from other properties, nor did he calculate the amount of water flowing directly on to the plaintiff's land from other uphill properties. At best, the plaintiff has proved that during any extraordinary storm there might be an increase in the volume of water discharge. The plaintiff has not proved a change in volume by a fair preponderance of the evidence.
While it is true that the flow of surface water has been changed in part from "sheeting" to "point discharge," it has had little consequence. The plaintiff's property is raw land According to the topographical maps, there has been no change in its terrain, other than some minor depressions in the land near the discharge.
More important, even if the plaintiff had shown a significant change in volume or course, it would still have to prove that an injury has been sustained. Plaintiff has proved no such injury. Neither Mr. Russo, the plaintiff's president, nor the plaintiff's experts ever saw this land before the development of Woodgate. The "weak channel" seen near the discharge point is just that, a weak channel, an indentation whose effect dissipates in short order. At no time during the trial did the plaintiff offer any evidence, other than it is the president's claim, that flooding on its land, and on the George St. neighbors' properties, is caused by the Woodgate development. Water has always flowed down the hill on to the plaintiff's property from the properties and highway above it, and continues to go down the hill toward the George St. neighbors. This is clear from a view of the topographical maps and acknowledgment of the fact that water seeks the lowest point. No persuasive causal link has been shown for any of' the claimed damages. Indeed, the plaintiff has failed to show that the water problems claimed have not always existed.
Also problematic in this matter is the court's determination that the plaintiff's president, Mr. Russo, is not a credible witness. His credibility was lost when he laid out the need for an elaborate and costly system of drainage that would cross the plaintiff's property and culminate in a new culvert on George Street. This testimony was clearly inflated and contradicted by his own expert. Mr. Russo's claims were an excessive exaggeration and unbelievable. This lapse has adversely affected the court's view of the rest of his testimony.
The plaintiff owns a parcel that it may or may not develop. The plaintiff essentially claims that the defendant's drainage system will have the consequence of increasing its development costs if and when it develops. Unfortunately, since damages are limited to a diminution in the value of the property, there would be no recovery here even if the plaintiff had proved an injury. The plaintiff has failed to present any evidence whatsoever upon which the Court could base an award of money damages. Without evidence as to the value of its property, the court is unable to determine whether there might be any diminution in its value or whether repairs would add to its value.
As to its claim for injunctive relief, there has been no showing of an actual or potential injury (substantial or not) that is irreparable.
The historical analysis urged by the plaintiff would upend almost 150 years of case law. The analysis is based on a selective and incomplete reading of the materials cited. Similarly, the plaintiff's argument for injunctive relief is a breathtakingly incorrect view of the law of equity. Further, in its evidentiary presentation the plaintiff has failed to prove, by a fair preponderance of the evidence, any of the elements required by the law, which does govern this case.
Judgment shall enter in favor of the defendant.
By the Court
GORDON, JUDGE.