RULING ON MOTION FOR TEMPORARY INJUNCTION

ANGELO L. DOS SANTOS, J.

The plaintiff seeks a temporary injunction requesting injunctive relief against the defendants ordering, among other things, the defendants to cease and desist trespassing on the plaintiff's land. Based upon the court's consideration of the testimony and the evidence, the court orders a temporary injunction, as articulated in the court's Conclusion.

FACTS

This case arises out of a property dispute between neighboring landowners. The plaintiff, DPF Financial Holdings, LLC (DPF), filed a summons and complaint against the defendants, Amy Lyons (Amy Lyons), Valley View Riding Stables (Valley View), Mae Lyons StoneHouse Real Estate (Mae Lyons) and the town of Killingly, planning and zoning department (Department), on April 18, 2008. The complaint contains sixteen counts alleging a wide array of wrongdoings by the defendants. The plaintiff alleges certain facts in the complaint.

The plaintiff is the owner of two parcels of land in Killingly, Connecticut (Lot #1 and Lot #2), which it bought in 2006. The plaintiff began construction of residential dwellings on the lots that same year. The defendant, Amy Lyons, is the owner of an adjacent parcel of land, which was used as a horse farm at the time of the plaintiff's purchase of Lots #1 and #2. Amy Lyons' farm includes two lots located behind the plaintiff property that are designated as Lots #3 and #4. She is the holder of an "access easement" over the plaintiff's Lot #2 which allows her access to Lots #3 and #4. Amy Lyons purchased the farm and Lots #3 and #4 after the plaintiff purchased his two lots from the same grantor.

The common grantor, Valley View, had sought and was approved a subdivision of the farm. The approved subdivision map is on file in the clerk's office of the town of Killingly (Ex. 1). The map includes Lots #1, #2, #3, and #4. After purchasing Lots #1 and #2, the plaintiff noticed that the fence running along the common boundary between the farm and Lot #2 was partially located in the plaintiff's land. The plaintiff brought the issue to the attention of the common grantor who informed the plaintiff that it would have to deal with the purchaser, Amy Lyons, of the farm and the remaining two lots.

Amy Lyons began a contentious relationship with the plaintiff almost immediately after purchasing the farm and two rear lots. She or her agents moved the pins marking the boundary of plaintiff's Lot #2.

At the time that the common grantor conveyed the two lots to the plaintiff, the legal description of the lots comported with the size and the boundaries contained on the site plan approved by the town. A part of the defendant's fence is located on land owned by the plaintiff, creates a trespass on the plaintiff's land. The court credits the testimony of Robert Hellstrom who placed the boundary pins in accordance with the legal description on the deeds and the town approved subdivision map.

Amy Lyons constructed, close to the plaintiff's property, and without proper permits, a pig pen out of a converted commercial trailer. The pig pen obstructs the view from the plaintiff's property. Amy Lyons then proceeded to house pigs, chickens and other fowl close to the plaintiff's property line. The animals continually trespass upon the plaintiff's land.

The defendant's farm is located at a higher elevation than the plaintiff's lots. The plaintiff had constructed a berm to prevent erosion to Lots #1 and #2. The defendant, Amy Lyons, or her agents removed the berm. The erosion that the plaintiff had feared occurred after the berm was removed by the defendant.

As part of the presentation of her case, Amy Lyons submitted a letter (Ex. D) from the State of Connecticut, Department of Environmental Protection. In the letter, the author makes certain recommendations regarding her farm. Specifically, the author of the letter recommends that the contaminated runoff from the "poultry turn out area can be reduced by placing woodchips two to three inches thick over the area and providing a down gradient woodchip berm eighteen (18) inches high and three (3) feet wide . . . Ultimately you are responsible if you pollute your new neighbors well." She has failed to act on the recommendations in that letter.

Amy Lyons has deposited animal remains and bones, as well as discarded construction material, on the plaintiff's land. She removed loam from an area of the plaintiff's land, primarily where the access easement is located, and replaced it with low-quality soil and animal remains. By placing her animals so close to the plaintiff's property, she has directed animal fecal matter from the animal pens onto the plaintiff's land, causing environmental damage and possible well contamination. These frequent trespasses have resulted in the physical destruction of certain areas of the land owned by the plaintiff.

The plaintiff, through Douglas P. Fleming, testified that the activities of the defendants were meant to devalue the property causing the plaintiff to sell its lots to the defendant at a substantially reduced price.

The sixteen counts in the plaintiff's complaint essentially allege trespass, nuisance, tortuous interference, negligence and intentional infliction of emotional distress. In its prayer for relief, the plaintiff asks for equitable relief, including an injunction against further trespassing, further destructive activities and further interference with the plaintiff's marketing activities; declaratory relief stating that the defendant has only an access easement on the plaintiff's property; money damages; and costs.

The plaintiff, through counsel, filed this application for a temporary injunction on May 30, 2008, seeking relief in the form of (1) an order requiring the defendants to cease dumping materials on the plaintiff's property, (2) an order instructing the defendants to refrain from improperly using the access easement, (3) an order instructing the defendants to cease dumping materials on the area of land on which the access easement exists, and (4) an order mandating that the defendants otherwise cease and desist trespassing on the plaintiff's land. Included with the application is a memorandum of law.

Two hearings were held on the application. At the first, on September 5, 2008, the plaintiff presented its case, and at the second, dated October 17, 2008, the defendants presented their case. Three post-trial memoranda of law were filed on October 24, 2008: One by the plaintiff; one by Amy Lyons, Mae Lyons and Michael Sobieniak; and one by the Department. Additional facts will be discussed, as necessary.

DISCUSSION

"The principal purpose of a temporary injunction is to preserve the status quo until the rights of the parties can be finally determined after a hearing on the merits." (Internal quotation marks omitted.) Rustici v. Malloy, 60 Conn.App. 47, 56, 758 A.2d 424, cert. denied, 254 Conn. 952, 762 A.2d 903 (2000). "[A] temporary injunction is an extraordinary remedy . . . It should not be granted where, among other things, the plaintiff's legal rights are not clear." (Internal quotation marks omitted.) Taylor v. Hoffman Ford, Inc., Superior Court, judicial district of Tolland, Docket No. CV 04 4000390 (September 22, 2005, Scholl, J.) (40 Conn. L. Rptr. 49). "[A] party seeking injunctive relief has the burden of alleging and proving [that party's entitlement to relief]." (Internal quotation marks omitted.) Branch v. Occhionero, 239 Conn. 199, 207, 681 A.2d 306 (1996). "[A] prayer for injunctive relief is addressed to the sound discretion of the court . . ." (Internal quotation marks omitted.) Id.

"Ordinarily, in order to prevail on an application for temporary injunction, a plaintiff must establish (1) a reasonable degree of probability of success on the merits of the claim; (2) irreparable harm with no adequate remedy at law; and (3) that the harm likely to be suffered by the plaintiff [absent the injunction] is greater than that which will result from the interference with defendant's operations occasioned by the injunction." Enfield v. Ingraham, Superior Court, judicial district of Tolland, Docket No. CV 07 4007649 (May 28, 2008, Vacchelli, J.), citing Waterbury Teachers Ass'n. v. Freedom of Information Commission, 230 Conn. 441, 446, 645 A.2d 978 (1994). The plaintiff has demonstrated these three elements and is thus entitled to a temporary injunction.

First, the plaintiff has demonstrated that there is a reasonable degree of probability of success on the merits. To satisfy this element, the plaintiff must demonstrate that there is probable cause that it will prevail in the underlying action. Diagnostic Oncology CRO, Inc. v. Ballas, Superior Court, judicial district of Ansonia-Milford, No. CV 07 4007820 (June 26, 2007, Esposito, J.) ("[T]he trial court . . . must determine, in light of its assessment of the legal issues and the credibility of the witnesses, whether a plaintiff has sustained the burden of showing probable cause to sustain the validity of its claim." (Internal quotation marks omitted.)).

"The legal idea of probable cause is a bona fide belief in the existence of the facts essential under the law for the action and such as would warrant a man of ordinary caution, prudence and judgment, under the circumstances, in entertaining it . . . Probable cause is a flexible common sense standard. It does not demand that a belief be correct or more likely true than false." (Citation omitted; internal quotation marks omitted.) Pero Building Co. v. Smith, 6 Conn.App. 180, 183, 504 A.2d 524 (1986).

Considering the actions of the defendant, Amy Lyons, and the effects of those actions on the plaintiff's land, there is probable cause to believe the plaintiff will succeed on the merits of its claims. The nature and extent of the acts and actions of Amy Lyons have denied the plaintiff the ability to properly market his properties; especially, the continuous trespasses upon its land.

Second, the plaintiff has proved that it has suffered irreparable harm that lacks an adequate remedy at law. "[A] harm is `irreparable' when it cannot be adequately compensated in damages or cannot be measured by any pecuniary standard . . . Put differently, a harm is not irreparable if it can be assuaged by money." (Citation omitted; internal quotation marks omitted.) Morytko v. Westfort, Superior Court, judicial district of New Haven, Docket No. CV 04 400600 (May 31, 2005, Tanzer, J.) [39 Conn. L. Rptr. 427].

The general rule is that "[i]njunctions are liberally granted in cases of continuing trespass." Pender v. Matranga, Superior Court, judicial district of Danbury, Docket Nos. 319129, 319038 (August 9, 1995, Riefberg, J.), citing Walton v. New Hartford, 223 Conn. 155, 166, 612 A.2d 1153 (1992). This rule exists for two basic, but related, reasons: (1) a continuing or repeated trespass, such as an encroachment on one's land, is an ongoing harm to that landowner, and (2) injunctive relief is logistically superior to forcing the plaintiff to come to court multiple times to collect money damages. Berin v. Olson, 183 Conn. 337, 342-43, 439 A.2d 357 (1981).

A homeowner who is subject to repeated encroachments on his land will not be made whole by money damages because the payment of damages will not necessarily prevent further encroachments. See, e.g., id., 341-42 (the plaintiff, who was subject to the repeated flooding of his house because the defendant's activities on his own land caused water to flow onto the plaintiff's land, would not have been made whole though money damages due to the prospect of future instances of similar flooding). The court does not want to hear periodic lawsuits seeking relief for the same repeated harm, thus it allows injunctive relief. See id., 342-43.

Trespass occurs when "[one] intentionally cause[s] some substance or thing to enter upon another's land." (Internal quotation marks omitted.) Bristol v. Tilcon Minerals, Inc., 284 Conn. 55, 88, 931 A.2d 237 (2007). Here, there is convincing evidence that the defendant, Amy Lyons and/or her agents intentionally caused water, debris, and animal waste to enter onto the plaintiff's land. At present, these trespasses continue unabated by the defendant, Amy Lyons.

The plaintiff testified, in seeking injunctive relief, that the defendant, Amy Lyons, purposefully placed farm animals close to the boundary with the plaintiff's property causing the runoff of the dejecta of the farm animals onto the plaintiff's property. The condition created by Amy Lyons, as previously noted, constitutes a continuing trespass on the plaintiff's land. Because Amy Lyons' land is located at a higher elevation than that of the plaintiff's, when it rains, there is a runoff of the rainwater together with the excrement of the farm animals on to the plaintiff's land. This harm cannot be measured by money damages, and thus the plaintiff will not be made whole through money.

Finally, the balance of the equities favors the plaintiff because the harm likely to be suffered by the plaintiff if the injunction is not granted is greater than that which will result from the interference with defendant's operations occasioned by the injunction. Here, the granting of a temporary injunction will not affect the ability of the defendant to go about the activities of her farm and she will not be hampered by the court's order. However, without the injunction, the plaintiff will continue to suffer trespasses that interfere with its ability to improve and market its properties effectively.

CONCLUSION

The plaintiff has demonstrated that (1) it has a reasonable probability of success on the merits, (2) it has suffered irreparable harm for which there is no adequate remedy at law due to repeated trespasses by the defendants, and (3) that the harm from the injunction to the defendants is less than the harm to the plaintiffs from the failure to grant the injunction. The court therefore Orders the defendant, Amy Lyons, to immediately cease and desist from trespassing upon the plaintiff's land.

The parties do not clearly understand their rights and obligations with regard to the "access easement" that was created by the common grantor. In Douton v. Norris, Superior Court, judicial district of New London, Docket No. CV 03 0566914 (January 12, 2005, Leuba, J.T.R.), the court noted that: "A servient owner [the plaintiff] ordinarily has no duty to do any positive act with respect to the maintenance or repair of an easement, but he or she is required to refrain from unlawfully interfering with or obstructing the easement . . . The servient owner has, [however], all the rights and benefits of ownership consistent with the easement . . . the right to use the land remains in [him], without any express reservation to that effect, so far as such right does not conflict with the purpose and character of the easement . . . [Thus], the grant of an easement of way which is not exclusive and which can be reasonably enjoyed without being exclusive leaves in the servient [the plaintiff] owner the right of use in common with the owner of the easement. 25 Am. Jur. 2d, Easements and Licenses in Real Property § 86 (1998). [In such event], the servient owner may cultivate or make improvements on the land subject to an easement of way, or use the way for any purpose, provided he does not interfere with the right of passage resting in the owner of the easement." (Internal quotation marks omitted.)

The court suggests that the defendant Amy Lyons move the fence along the boundary common with her farm and lot #2, so that the "access easement" can be located at its proper location in accordance with the site plan. The plaintiff can take remedial action to protect its property so long as the plaintiff's actions do not interfere with the defendant's ability to use the "access easement" through Lot #2 as per the deeds and the site plan. The application for a temporary injunction is hereby granted.