Opinion
MMXCV136013438
03-24-2017
Russell Jordan et al. v. Jon D. Biller et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Julia L. Aurigemma, J.
The plaintiffs seek damages in relation to their real property after the defendants caused a large number of trees to be removed from that real property. The defendants claim that they had a valid view easement which permitted the removal of the trees. In a counterclaim the defendants seek an injunction against the plaintiffs, a judgment determining the rights of the parties in the License and View Easement and an order quieting title regarding said easement.
After trial the court finds the following facts. The plaintiffs, Russell Jordan and Lorraine Jorsey, inherited 2 Cove Road, East Haddam, Connecticut via a quitclaim deed from the Estate of Mary Campbell, their mother. That deed is dated December 22, 2010 and recorded at Volume 879, Page 85 of the East Haddam Land Records (" 2 Cove Road"). The 2 Cove Road property was part of a 101-acre parcel of land in East Haddam owned by Paul and Mary Campbell, which had extensive frontage on Salmon Cove.
The Campbells lived in a ranch house at 6 Cove Road on the 101-acre parcel of property. In 1986 Paul and Mary Campbell sold the house with 89 acres of that property to Damon and Brian Navarro, who were real estate developers. During the negotiations to purchase the property from the Campbells, Damon and Brian Navarro asked the Campbells to grant them a view easement over the land which the Campbells retained to the Salmon Cove from the house at 6 Cove Road. Richard Shea, Jr., the Navarro's counsel, requested language in the purchase and sale contract for the property, which provided that the view easement would run with the property and be binding upon the sellers' (Campbells') heirs, successors and assigns. The Campbells refused to grant a view easement which ran with the property, or bound their successors and assigns. The sales contract, or Bond for Deed, dated June 23, 1986 stated: " This right is personal to the buyers and the spouses of the buyers."
The Campbells conveyed the property via warranty deed to Damon and Brian Navarro on September 25, 1986. At the time the parties executed a document entitled LICENSE AND VIEW EASEMENT . which provides, in pertinent part:
THIS AGREEMENT is made and entered into this 25th day of September 1986, by and between PAUL J. CAMPBELL and MARY E. CAMPBELL, both of the Town of Punta Gorda, County of Charlotte and State of Florida, hereinafter referred to as " SELLERS, " or " OWNERS" and DAMON NAVARRO, of the Town of Marlborough, County of Hartford and State of Connecticut, and BRIAN NAVARRO, of the Town of Hartford, County of Hartford and State of Connecticut, hereinafter referred to as the " BUYERS" or " LICENSEES."
* * * *
2. VIEW EASEMENT : SELLERS also hereby grant to the BUYERS the right to thin and trim the trees on the land retained by the SELLERS lying west of the land purchased by the BUYERS to permit a view of Salmon Cove from the ranch house on the land purchased by the BUYERS. The area in which the BUYERS shall have such right is on that portion of SELLERS' retained land which lies between the extension westerly of the northerly and southerly boundary lines of the meadow as the same is now constituted on the land purchased by the BUYERS, which meadow lies to the west of said ranch house and is approximately two hundred fifty (250) feet in width from its northerly to its southerly boundary lines. The BUYERS hereby agree to bear the total cost of such tree trimming and tree removal, to perform or have performed the work in a good and workmanlike manner, and to remove or have removed any wood resulting from the thinning and/or trimming from the SELLERS' land immediately after the said thinning and/or trimming. It is strictly agreed and understood, however, that no thinning and/or trimming shall be performed without the agreement of the SELLERS, which agreement shall not be unreasonably withheld .Emphasis added.
The License and View Easement set forth above was recorded in the East Haddam Land Records in Volume 219, Page 201.
Damon and Brian Navarro subdivided the property as part of a subdivision known as Scoville Landing. In 1989 Damon and Brian Navarro quitclaimed a thirty-acre portion of the property identified as Lot 19 of Scoville Landing to Anne Navarro. In 1992 Anne Navarro sold that property to Rolf H. Olson and Sioux S. Olson by a warranty deed. Schedule A to the warranty deed contained the property description which referred to the property as 6 Cove Road and included the following language after the property description: " Together with any and all assignable rights of Grantor to a license and view easement from Paul J. Campbell and Mary E. Campbell to Damon Navarro and Brian Navarro dated September 25, 1986 and recorded in the East Haddam Land Records in Volume 219, Page 201."
In 2012 Sioux Olson sold the 6 Cove Road property to the defendants, Jon D. Biller and Jacqueline Biller via warranty deed dated August 1, 2012. Schedule A to the warranty deed contained the following language after the property description: " Together with any and all assignable rights of Anne W. Navarro to a license and view easement from Paul J. Campbell and Mary E. Campbell to Damon Navarro and Brian Navarro date September 25, 1986 and recorded in Volume 219 at Page 201 of the East Haddam Land Records."
Jon Biller, who is an attorney, testified that the view easement was crucial to his decision to purchase the 6 Cove Road property. He relied on the realtor's representation that the view easement was valid. Prior to purchasing the property, Attorney Biller never obtained any legal opinion that the easement was valid and never even read the License and View Easement.
There was no evidence that at any time between 1986 and the date on which the Billers purchased the 6 Cove Road property that any other owner of that property had thinned or cut any trees on the 2 Cove Road property, now owned by the plaintiffs.
The plaintiffs had been trying to sell their property since they inherited it from their mother. They considered that the property had three unique characteristics: over 1500 feet of direct water front, privacy from the surrounding old forest and a deep water area in front of the property at which large ocean-going vessels could dock.
The plaintiffs initially offered the property for sale for $3.5 million and then for $2.8 million. The plaintiffs received no offers to purchase the property at either price.
In the late fall of 2012, the defendants removed approximately 80 trees from the plaintiffs' property in the area of the direct sight line from the house at 6 Cove Road to the Salmon Cove. Approximately 50 of the felled trees had trunk diameters of more than 6 inches. The area from which the trees were removed is approximately 100 feet by 225 feet. Prior to the removal of the trees, the plaintiffs' house was surrounded by 70-80-year-old forest.
The defendants did not request permission from the plaintiffs prior to cutting down the trees. Jon Biller testified that he had not even read the License and View Easement prior to cutting down all the trees on the plaintiffs' property. He admitted that he did not realize that that document required the person cutting down trees to obtain permission before doing so. Since the plaintiffs did not reside at the 2 Cove Road property, they were not aware that the trees had been cut down until several months later.
Joseph Mendler, a real estate developer based in New York City, had met Russell Jordan through an antique car club to which they both belonged. Mr. Mendler was looking to acquire property on the Connecticut River that he could use as a vacation home. Mr. Mendler testified that in the summer of 2012 he saw the plaintiff's property before the trees were cut down. He found that it was unique among the many riverfront properties he had evaluated. He was looking for riverfront property large enough to build a second home for use by his daughters. He testified that the dense woods provided much privacy for the existing house and the house he wished to build.
Mr. Mendler testified that he and Mr. Jordan discussed a price of $2.2 million for the property in 2012. Mr. Mendler needed his wife to see the property before he made an offer. When he returned in 2013 he saw the area where the trees had been cut. The property no longer afforded the privacy which he wanted for a family compound. He testified that he offered Mr. Jordan $1,000,000 for the property after the trees were cut down. There was no evidence that this offer or the $2.2 million dollar offer were in writing. In any event, Mr. Jordan did not accept the later offer.
The plaintiffs introduced the testimony of Michael DiFranco, a licensed arborist. Mr. DiFranco was engaged to provide an opinion as to the cost to replace the trees that had been cut. His report was admitted in evidence. It described his observations of the property after the trees had been cut as follows:
I observed a large flat cut area on the property located on a beautiful sweeping slope overlooking the Connecticut River below . . . During the initial walk through, I saw a large number of various sized and species stumps which most were cut down to the basal flare level of the previously existing trees. There also remained a substantial amount of brush, wood, debris and trees strewn about the site. The affected area was later measured by me to be approximately 100 feet wide by approximately 225 feet long . . .
On May 13, 2014, I returned to the site with an assistant, Michael P. DiFranco Jr. for the purpose of collecting data, identifying tree species which had been cut and taking measurements. On this date we focused on all large stumps in the trespass area. We identified 31 Eastern Hemlocks, 10 Sugar Maples, 4 Black Birch and 1 Red Oak with stump sizes ranging from 8 inches in diameter to 34 inches in diameter. We also observed a large number of various sized smaller stumps of trees of various species which had also apparently been cut in the same timber trespass.
Mr. DiFranco opined that value of the trees which had been cut was $321,660, the cost of brush, wood and debris cleanup was $15,000, the cost of stump removal and grading of the site was $35,000 with a total cost being $371,660. He also opined that the replacement cost of the smaller cut trees was between $75,000 and $125,000.
Dr. Jonathan Parrott, a licensed forester with a Ph.D. in land management testified that the hemlocks, and possibly the other trees cut down by the defendants were seventy years old. He stated that due to the lack of an available stock of trees of a similar age, it would be impossible to restore the area to the condition that it had been in before the defendants cut down the trees. He did not quarrel with the mathematical damage analysis done by Mr. DiFranco, but he did opine that the damages should be limited to the " timber" value of the trees that had been cut and that the best " ecological" solution was to allow the trees to grow back naturally, which he admitted would take at least a decade. Since more than half of the trees which were cut were hemlocks, which were 70 years old, Dr. Parrott's estimate as to regrowth time is not credible.
The plaintiffs asked the court to take judicial notice of the case of Biller v. Sabetta, Docket No. MMX-CV-146011495, judicial district of Middlesex, in which the defendants sued their neighbor for cutting down trees near their 6 Cove Road property. The court did take judicial notice of the defendants' responses to interrogatories in that case. In those responses, rather than asking for timber value, the defendants claimed that they sustained damages in the amount of $866,580 tree replacement value due to the loss of trees.
The plaintiffs introduced additional evidence as to the diminution in the value to their property caused by the cutting of the trees. Mark Reyher, who had worked as a real estate broker for many years in the Connecticut River Valley area opined that a typical buyer of riverfront property such as the plaintiffs' property would be " turned off" by the area from which the defendants removed the trees. After having visited the site, the court agrees. The area looks like the botanical equivalent of a bomb site. Mr. Reyher also testified that the plaintiffs' property had a potential building lot, directly in front of the scarred area. Mr. Reyher testified that this lot had been diminished in value by 50% from $300,000 to $150,000 because of the privacy which the clear-cutting removed and further opined that the property without the building lot was worth $2 million and had diminished in value by 30%, or $600,000.
The plaintiffs called Frank Silvia, a real estate appraiser, who opined that the plaintiff's property was so unique that it was not possible to use normal appraisal techniques such as the comparable sales analysis to quantify the diminution in value inflicted by the loss of the trees. He further opined that the replacement value of the trees would be the best measure of the plaintiffs' loss. Jon LaMonte, a real estate appraiser called by the defendants, offered testimony that the cutting of the trees had not diminished the value of the plaintiffs' property at all. However, the court does not find that his testimony was credible because he simply appraised various properties on lakes, ponds or other waterways without any consideration whatsoever of the presence or absence of trees or forests.
The plaintiffs argue that the defendants' property has no view easement because it was personal to Damon and Brian Navarro and was not appurtenant to the defendants' property. They further argue that even if the defendants' property did enjoy a view easement, the defendants violated the language of the easement by failing to consult with the plaintiffs prior to cutting down the trees. For the reasons hereinafter set forth, the court agrees with the plaintiffs that the view easement was personal to Damon and Brian Navarro and, therefore, the defendants had no right to cut down any trees on the plaintiffs' property.
It is well established that where the reservation creating an easement does not mention the heirs and assigns of the grantee, a presumption exists that the grantor and grantee intended the right-of-way to be in gross. Kelly v. Ivler, 187 Conn. 31, 39, 450 A.2d 817 (1982); Leabo v. Leninski, supra, 182 Conn. at 614, 438 A.2d 1153; Dunn Bros., Inc. v. Lesnewsky, supra, 164 Conn. at 335, 321 A.2d 453. The presumption, however, is rebuttable. Kelly v. Ivler, supra ; Leabo v. Leninski, supra; Dunn Bros., Inc. v. Lesnewsky, supra . The reservation will be interpreted as creating an appurtenant easement if it appears, from the surrounding circumstances and other relevant provisions in the deed, that the parties intended the easement to run with the land. Kelly v. Ivler, supra ; Leabo v. Leninski, supra; Dunn Bros., Inc. v. Lesnewsky, supra . Several factors may rebut the presumption. They are (1) whether the language of the reservation indicates that the easement is intended to run with the land, (2) whether the easement is of value to the dominant estate itself, and (3) whether the owner of the servient estate recognized the right of the subsequent owners of the dominant estate to use the easement. Kelly v. Ivler, supra, 187 Conn. at 43-44, 450 A.2d 817; Leabo v. Leninski, supra, 182 Conn. at 614-15, 438 A.2d 1153; Dunn Bros., Inc. v. Lesnewsky, supra, 164 Conn. at 335-36, 321 A.2d 453.Stiefel v. Lindemann, 33 Conn.App. 799, 806-07, 638 A.2d 642 (1994).
The easement at issue here, the License and View Easement recorded in the East Haddam Land Records in Volume 219, Page 201, does not mention the heirs and assigns of the grantee and does not use the word " appurtenant" or any other language to indicate that the easement is intended to run with the land. Therefore, the plaintiffs are entitled to a presumption that the grantors and grantees intended the view easement to be personal to themselves. The defendants may rebut the presumption by showing that the language of the easement when read in light of other provisions of the conveyance and the surrounding circumstances show an intent that the easement is appurtenant. Taylor v. Dennehy, 136 Conn. 398, 402, 71 A.2d 596 (1950).
The language of the easement does not indicate any intention to be appurtenant or to benefit the heirs or assigns of the Navarros. In Stiefel, the court considered the language of the easement and stated: " The reservation stated that the right-of-way was reserved for the 'grantors herein' (emphasis added), which indicates that the reservation was in favor of the particular grantors of the conveyance. 6 See Kowalski v. Mather, 112 Conn. 594, 594-95, 153 A. 168 (1931). The reservation also uses the personal pronoun 'their' in stating that the grantors reserved the right-of-way in favor of 'their remaining property.'" (Emphasis added.) Stiefel v. Lindemann, supra, at 807.
Similarly, in this case, the easement is phrased in terms which are personal to the buyers (grantees) and sellers (grantors):
SELLERS also hereby grant to the BUYERS the right to thin and trim the trees on the land retained by the SELLERS lying west of the land purchased by the BUYERS to permit a view of Salmon Cove from the ranch house on the land purchased by the BUYERS. The area in which the BUYERS shall have such right is on that portion of SELLERS' retained land which lies between the extension westerly of the northerly and southerly boundary lines of the meadow as the same is now constituted on the land purchased by the BUYERS, which meadow lies to the west of said ranch house and is approximately two hundred fifty (250) feet in width from its northerly to its southerly boundary lines. The BUYERS hereby agree to bear the total cost of such tree trimming and tree removal, to perform or have performed the work in a good and workmanlike manner, and to remove or have removed any wood resulting from the thinning and/or trimming from the SELLERS' land immediately after the said thinning and/or trimming. It is strictly agreed and understood, however, that no thinning and/or trimming shall be performed without the agreement of the SELLERS, which agreement shall not be unreasonably withheld .
Not only does the language of the easement evidence an intent that the view easement would be personal to the grantees, but the surrounding circumstances also make it clear that the Campbells, the grantors, did not intend that the easement would be appurtenant. As stated above, Attorney Richard Shea, Jr., represented Damon and Brian Navarro, the grantees of the easement. He testified that on behalf of the Navarros, he requested that the Campbells grant the view easement to the Navarros and their heirs and assigns, but the attorney for the Campbells refused. The Bond for Deed, the sales contract between the Campbells and the Navarros, contained specific language that the easement would be personal to the Navarros.
The defendants objected to Attorney Shea's testimony on the grounds that it was impermissible extrinsic evidence. The objection ignored the considerable amount of established law that a court should consider surrounding circumstances in determining whether an easement is appurtenant. See, e.g., Kelly v. Ivler, supra ; Leabo v. Leninski, supra; Dunn Bros., Inc. v. Lesnewsky, supra . It is difficult to imagine how " surrounding circumstances" can be proved other than by the testimony of witnesses familiar with those circumstances. It is the rare case where an attorney involved in the creation of an easement is available to testify as to the meaning of the easement, but it is difficult to imagine better evidence as to the circumstances surrounding the granting of the easement. In addition, in Hare v. McClellan, 234 Conn. 581, 596, 662 A.2d 1242 (1995), the court reversed a decision by the trial court that excluded extrinsic evidence consisting of testimony of the closing attorney for the conveyance at issue, holding that such evidence " is always admissible to explain an ambiguity appearing in the instrument." Id.
The defendants attempt to argue that the absence of the language in the easement itself specifying that the easement was personal to the buyers is evidence that the easement was intended to be appurtenant. Attorney Shea was questioned on this point and stated that he wanted the easement to contain reference to " heirs and assigns" or some reference that it ran with the land, and the sellers refused to put any such language in the easement.
The defendants' argument runs counter to the accepted law stated above that an easement is not appurtenant unless it contains language that states that it runs with the land, inures to the benefit of heirs and assigns of the grantee or simply uses the term " appurtenant." Not only does the view easement not contain any such language, but the circumstances surrounding the granting of the easement make it clear that the Campbells specifically did not intend that the easement run with the land.
Under Kelly v. Ivler, supra, and the other easement cases set forth above, the third factor for a court to consider when determining whether an easement is appurtenant or personal is whether the owner of the servient estate recognized the right of the subsequent owners of the dominant estate to use the easement. Kelly v. Ivler, supra at 43-44. There was no evidence whatsoever that owners of the servient estate, the plaintiffs' property, ever recognized the right of Anne Navarro or subsequent owners of the dominant estate to use the easement.
The Campbells retained more than eleven acres of land along the Salmon Cove after their conveyance to Brian and Damon Navarro. They built a home at the end of a dead-end street at 2 Cove Road surrounded on three sides by a dense forest. When the Campbells sold the property to the Navarro brothers, there were hundreds of trees between the end of the meadow at 6 Cove Road and Salmon Cove. There was no evidence that the grantees of the view easement, Damon and Brian Navarro, ever cut or thinned a single tree. There was no evidence that Anne Navarro or Sioux Olson ever cut or thinned a single tree.
The defendants have focused on the second factor enumerated in Kelly v. Ivler and the other cases: whether the easement is of value to the dominant estate itself. They rely on the case of Irving v. Firehouse Association, LLC, 95 Conn.App. 713, 898 A.2d 270, cert. denied, 280 Conn. 903, 907 A.2d 90 (2006). However they have taken language from the case out of context. Their argument that an easement runs with the land simply if it benefits the dominant estate ignores the accepted case law. The actual quote from Irving is: " 'If an easement is in its nature an appropriate and useful adjunct to the land conveyed, having in view the intention of the parties as to its use, and there is nothing to show that the parties intended it to be a mere personal right, it should be held to be an easement appurtenant and not an easement in gross.' Lichteig v. Churinetz, 9 Conn.App. 406, 411, 519 A.2d 99 (1986)." Irving, supra, at 729. Emphasis added. It should be further noted that the dominant estate in Irving would have been landlocked without the right of way over the servient estate.
No case holds that a view easement is of such value to the dominant estate that it will always be considered appurtenant in the absence of any language whatsoever in the conveying document that it is intended to run with the land. In Taylor v. Dennehy, 136 Conn. 398, 403, 71 A.2d 596 (1950), the easement at issue led from the dominant estate to the ocean. The court noted that the easement would certainly benefit anyone who owned the dominant estate, but concluded that the other circumstances in the case supported the trial court's finding that the easement was meant to be personal, and not appurtenant. In Stiefel, supra, at 808-09, the court noted that the easement in question had some value to the dominant estate, but still found the easement to be personal.
The defendants argue that Connecticut's Marketable Title Act, Connecticut General Statutes § 47-33b et seq. and the current requirements of the Standards of Title used by title searchers in Connecticut combine to establish that the easement is appurtenant as a matter of law. They argue that the unrecorded bond for deed about which Attorney Shea testified is not in the chain of title, so it cannot affect title. If the recorded view easement contained " heirs and assigns" or some other language which made it clear that it was intended to run with the land, then the defendants would be correct. The unrecorded bond for deed would not affect the recorded easement. In this case the bond for deed was used at trial as evidence of " circumstances" surrounding the creation of the easement to prove that the recorded easement was intended to be personal. The bond for deed was not used to contradict the meaning of the easement, but to clarify it.
The defendants also rely on the last two conveyances in their chain of title. Both are warranty deeds which reference the recorded view easement. The defendants seem to argue that the reference in the warranty deed somehow changes the meaning of the easement. However, a seller cannot transfer a property interest greater than that which was created. Il Giardino, LLC v. Belle Haven Land Co., 254 Conn. 502, 537-38, 757 A.2d 1103 (2000).
The defendants' argument about the final two warranty deeds ignores one aspect of the Marketable Title Act. In Johnson v. Sourignamath, 90 Conn.App. 388, 401, 877 A.2d 891 (2005), the court pointed out that it is a " wholly sensible" effect of the Act to prevent invalid or non-existent easements to ripen into existence through the mere insertion into the land records of language asserting that right. As a matter of the law the defendants do not have an appurtenant easement simply because they received a warranty deed from Sioux Olson that mentioned the easement. 'The essentials of an action for trespass are: (1) ownership or possessory interest in land by the plaintiff; (2) invasion, intrusion or entry by the defendant affecting the plaintiff's exclusive possessory interest; (3) done intentionally; and (4) causing direct injury. Avery v. Spicer, 90 Conn. 576, 579, 98 A. 135 (1916); 75 Am.Jur.2d, Trespass § § 3, 8, 14, 25, 35 [1991]." City of Bristol v. Tilcon Minerals, Inc., 284 Conn. 55, 87, 931 A.2d 237 (2007).
Common law provides at least three remedies for intentional trespass in situations in which trees have been removed. In an action for timber trespass, " [i]t is an appropriate remedy either for the recovery of damages for the mere unlawful entry upon the plaintiff's land; for the recovery of the value of the trees removed, considered separately from the land; or for the recovery of damages to the land resulting from the special value of the trees as shade or ornamental trees while standing on the land.Caciopoli v. Lebowitz, 131 Conn.App. 306, 311-12, 26 A.3d 136 (2011).
In Caciopoli v. Lebowitz, 309 Conn. 62, 82, 68 A.3d 1150 (2013) the court held that Connecticut General Statutes § 52-560 is not the exclusive remedy for damages arising from the cutting of trees. That statute provides:
Any person who cuts, destroys or carries away any trees, timber or shrubbery, standing or lying on the land of another or on public land, except on land subject to the provisions of section 52-560a, without license of the owner, and any person who aids therein, shall pay to the party injured five times the reasonable value of any tree intended for sale or use as a Christmas tree and three times the reasonable value of any other tree, timber or shrubbery; but, when the court is satisfied that the defendant was guilty through mistake and believed that the tree, timber or shrubbery was growing on his land, or on the land of the person for whom he cut the tree, timber or shrubbery, it shall render judgment for no more than its reasonable value.
The plaintiffs have stated that they are not seeking to recover for a violation of Connecticut General Statutes § 52-560. Rather, they seek to recover damages under the common law. The court in Caciopoli held that § 52-560 does not preempt a common-law cause of action for damages caused by the cutting of trees. Caciopoli v. Lebowitz, supra, at 82.
Under the common law, damages may be awarded for the diminution in value to property caused by the removal of trees. Eldridge v. Gorman, 77 Conn. 699, 701, 60 A. 643 (1905); Ventres v. Goodspeed Airport, LLC, 275 Conn. 105, 160, 881 A.2d 937 (2005), cert. denied, 547 U.S. 1111, 126 S.Ct. 1913, 164 L.Ed.2d 664 (2006); Fitzgerald v. Merard Holding Co., 106 Conn. 475, 481, 138 A. 483 (1927); Palmieri v. Cirino, 90 Conn.App. 841, 850, 880 A.2d 172, cert. denied, 276 Conn. 927, 889 A.2d 817 (2005); Stanley v. Lincoln, 75 Conn.App. 781, 787, 818 A.2d 783 (2003); Canton Village Construction, Inc. v. Huntington, 8 Conn.App. 144, 147, 510 A.2d 1377 (1986).
In Ventres v. Goodspeed Airport, LLC, supra, the Supreme Court disagreed with the Appellate Court in Stanley v. Lincoln, 75 Conn.App. 781, 818 A.2d 783 (2003). In Stanley, the court stated that replacement value is not a proper measure of damages in tree cutting cases because such measure of damages would lead to unreasonable recoveries in excess of the market value of the land. Stanley, supra, at 787. The Ventres court cited Maldonado v. Connecticut Light & Power Co., 31 Conn.Supp. 536, 539, 328 A.2d 120 (1974) where the court stated:
The ultimate measure of damages in a case such as this is the diminution in the value of the plaintiff's property caused by the defendant's tort. It is, however, well established that such diminution in value may be determined by the cost of repairing the damage, provided, of course, that that cost does not exceed the former value of the property and provided also that the repairs do not enhance the value of the property over what it was before it was damaged. Whitman Hotel Corporation v. Elliott & Watrous Engineering Co., 137 Conn. 562, 573, 79 A.2d 591, 596.
The Ventres court concluded that under the common law, damages for the reduction in pecuniary value of the land may be determined by the replacement cost of the trees, if appropriate under the facts of the case. Ventres, supra, at 160. After Ventres, the court in Argentinis v. Fortuna, 134 Conn.App. 538, 553, 39 A.3d 1207 (2012) held that " diminution in value may be determined by the cost of repairing the damage, provided, of course, that that cost does not exceed the former value of the property and provided also that the repairs do not enhance the value of the property over what it was before it was damaged."
The plaintiffs seek damages in the amount of $1,000,000. There is some support for that amount based on the testimony of Joseph Mendler. He testified that the amount he was willing to pay for the plaintiffs' property decreased by $1,200,000 after the defendants cut down the trees. Mr. Mendler has significant real estate holdings in New York and also some in Connecticut. There was no evidence that he ever made a valid offer for the property either prior to or after the trees were cut. In addition, Mr. Mendler is a friend of Mr. Jordan, so his opinion as to the decrease in value is not entirely unbiased.
Mark Reyher, a realtor who was familiar with the Connecticut River Valley opined that the value of the plaintiffs' property decreased by $750,000 as a result of the defendants' tree cutting. Frank Silvia, a real estate appraiser, opined that the plaintiff's property was so unique that it was not possible to use normal appraisal techniques such as the comparable sales analysis to quantify the diminution in value inflicted by the loss of the trees. He further opined that the replacement value of the trees would be the best measure of the plaintiffs' loss.
According to Michael DiFranco, a licensed arborist, the cost to replace the large trees that the defendants cut is $321,660 and the cost to replace the smaller trees is $75,000. These amounts were calculated using the Trunk Formula Method, which is used to appraise the monetary value of trees considered too large to be replaced with nursery or field grown stock. Mr. DiFranco also included amounts for brush and debris cleanup and stump removal totaling $50,000, for a total replacement cost of $446,660. The defendants gave the court no assistance in awarding damages. The appraiser they called as a witness did not even attempt to assess the impact of the loss of forest to a real property and opined that there was no loss. That testimony was incredible.
The defendants' insistence on limitation of the damages to the timber value of the trees was improper, in light of the law set forth above, and as such, provided the court with no realistic alternative measure of damages than those proposed by the plaintiffs. Moreover, in light of the defendants' claim to have suffered over $800,000 for the cost of tree replacement in another case pending in this courthouse, their insistence on timber-value damages in this case is disingenuous.
The court finds in favor of the plaintiffs on the First Count of the complaint for trespass. As set forth above the plaintiffs have proved that they owned the property at 2 Cove Road in East Haddam, that the defendants had no right to come upon their property because the alleged view easement was personal to Brian and Damon Navarro, that the defendants, by simply reading the License and View Easement, would have known that they had no right to go onto the plaintiffs' property. The court believes that the tree replacement value is the best measure of damages in this case. Since the value of the property exceeds $1,000,000 such damages are permissible under Caciopoli, Ventres and Argentinis . The court awards damages in the amount of $446,660 against the defendants on the First Count of the complaint. The plaintiffs have specifically stated that they are not proceeding under Connecticut General Statutes § 52-560, so the court deems that the Second Count has been abandoned.
The Third Count of the complaint alleges that the defendants were negligent and careless in not verifying that they had the right to cut trees and shrubbery. Jon Biller is an attorney, but never even read the License and View Easement before trespassing on the plaintiffs' property and cutting down the trees. The court finds in favor of the plaintiffs on the Third Count. The damages on this count are the same as those awarded for the First Count.
The plaintiffs have not addressed the Fourth Count in their post-trial memorandum. Therefore, the court deems that that count has been abandoned.
The court finds in favor of the plaintiffs on the defendants' counterclaim. As set forth above, the View Easement granted to Damon and Brian Navarro was a right personal to them. The defendants never acquired any view easement over the plaintiffs' property and have no rights to enter upon or cut any trees or shrubbery on 2 Cove Road, East Haddam, Connecticut.