Opinion
No. FST CV 07 4012591
May 15, 2009
MEMORANDUM OF DECISION ON PLAINTIFF'S MOTION TO STRIKE DATED JANUARY 21, 2009 (110.00)
This Motion to Strike involves an issue of first impression on a statute that has been under utilized for years.
The plaintiffs filed a six-count complaint against the defendant, their neighbor in Stamford, Connecticut, involving the defendant's interference with a private road adjacent to both properties. The operative complaint is the November 26, 2008 Second Revised Complaint (#106.00). The sixth count alleges an action for malicious erection of a structure in violation of Gen. Stat. § 52-570 and seeks by way of relief an injunction under Gen. Stat. § 52-480. "An action may be maintained by the proprietor of any land against the owner or lessee of land adjacent, who maliciously erects any structure thereon, with intent to annoy or injure the plaintiff in his use or disposition of his land." Gen. Stat. § 52-570. "An 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." Gen. Stat. § 52-480.
In the sixth count, the plaintiffs admit that the fence that was proposed to be erected by the defendant that would have blocked the private road has not yet been constructed. The defendant has filed this Motion to Strike arguing that neither Gen. Stat. § 52-570 nor Gen. Stat. § 52-480 can be invoked unless an actual structure has been erected. Neither party disputes the fact that the proposed fence would meet the definition of a structure. Furthermore, there is no dispute that both parties meet the adjoining ownership requirements of Gen. Stat. §§ 52-570 and 52-480. The only issue is whether Gen. Stat. §§ 52-570 and 52-480 apply to the prospective construction of a fence.
The Motion to Strike states: "Said Count is insufficient in that the allegations, on their face, acknowledge that no structure has been erected by the Defendant. C.G.S. § 52-570 only permits an action to be maintained against one who maliciously `erects any structure thereon . . .' For C.G.S. § 52-480, cited in Plaintiff's Claims for Relief, to be applicable, a structure has to have been `erected.'"
Chief Justice MacDonald as a trial judge in 1958 commenting on the predecessors to Gen Stat. § 52-570 (damages for malicious erection of structure) and Gen. Stat. § 52-480 (injunction against malicious erection of structure) noted: "These two statutes have been on our books for about one hundred years and have been unchanged since 1875, but have been cited in comparatively few cases." Rapuano v. Ames, 21 Conn.Sup. 110, 111 (1958).
The leading case on the subject is Whitlock v. Uhle, 75 Conn. 423 (1903). The elements necessary to state a cause of action under either of those two malicious erection of structure statutes are: "(1) A structure erected on the owner's (defendant's) land; (2) a malicious erection of the structure; (3) the intention to injure the enjoyment of the adjacent landowner's land by the erection of the structure; (4) an impairment of the value of adjacent land because of the structure; (5) the structure useless to the defendant; (6) the enjoyment of the adjacent landowner's land in fact impaired." Rapuano v. Ames, supra, 21 Conn.Sup. 111; Whitlock v. Uhle, supra, 75 Conn. 426. No case has been found by this court and no cases have been cited by either of the parties authorizing the prospective use of Gen. Stat. § 52-570 for a structure not yet erected.
The entire State of Connecticut has a long and gracious history of construction of fences and walls, mainly stonewalls. Ten thousand years ago, glaciers covered all of Connecticut. The glaciers ended at the Atlantic Ocean side of Long Island. The receding glaciers created Long Island as a glacial moraine. Thereafter, the glaciers continued to melt depositing loose debris, rock and glacial erratics that currently cover our entire state. The first colonists and those that came thereafter created stonewalls for four purposes: 1) to clear the land for agricultural use, since removing the stone from the land and creating a rock wall was the easiest method of accomplishing that goal; 2) to use as pens for domesticated animals; 3) to form a boundary between adjacent property owners; and 4) stone walls being a more or less permanent feature to use as the basis for land title descriptions recorded in municipal land records. There was no common use of stone walls to block a neighbor's access as being suggested by the pleadings in this case. Ensign, et al v. Colt, 75 Conn. 111, 113 (1902); Stone by Stone, Robert M. Thorsen, Walker and Company 2003; The Geology of Colonial New England Stone Walls, by Corey Schweizer, Stone Walls of New England, CT Page 8294 www.primaryresearch.org/stonewalls/schweizer.
This court has not been able to find any case either the trial or appellate court, in Connecticut that permits the use of the malicious erection of a structure statutes for a structure that was not actually in existence. Rapuano v. Ames, supra, 21 Conn.Sup. 112; Whitlock v. Uhle, supra, 75 Conn. 424; D'Agostino v. Piasecki, Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket Number CV 92-0128084 S (March 11, 1996, Lewis, J.); Bernardini v. Lombard, Superior Court, judicial district of Litchfield at Litchfield, Docket Number CV 01-0086276 S (March 14, 2003, Frazzini, J.) [ 34 Conn. L. Rptr. 305]; Pressman v. Krause, Superior Court, judicial district of New Haven at New Haven, Docket Number CV 93-0350902 S (September 12, 1997, Blue, J.) [ 20 Conn. L. Rptr. 183]. The above cases all involve a structure that was in existence. The two earliest cases citing the predecessor to Gen. Stat. § 52-570 both involved structures in existence. Harbison v. White, 46 Conn. 166, 107-08 (1878); Gallagher v. Dodge, 48 Conn. 387, 390 (1880).
A trial court found that hedges were not considered a structure within the meaning of Connecticut's malicious structure statutes. Dalton v. Bua, 47 Conn.Sup. 645 (2003) [ 34 Conn. L. Rptr. 241]. Dalton invoked both the injunctive relief malicious structure statute, Gen. Stat. § 52-480, and the damage malicious erection statute, Gen. Stat. § 52-570. Dalton sued over the obstruction of his waterfront views. The issue was whether a hedge was a structure as defined in those two statutes. The court found that the hedges were approximately four feet high in 1989 and were allowed to grow to a height of eight or nine feet along the property line directly across from the plaintiff's property creating a visual barrier that obstructed the plaintiff's view of Long Island Sound. The court noted that Gen. Stat. §§ 52-480 and 52-570 were part of one statute in 1867. "In the century and half since its enactment, the statute and its successors have been applied only against man-made constructions." Quoting the Apostle Mark, the court noted that hedges have been planted since biblical times but "neither the legislature in enacting the statute nor the courts in interpreting since have suggested that they can be `structures' within the meaning of the statutory text." Id., 647.
The closest case the court could find on the subject is Moschello v. Middlebury Dairy Bar, Superior Court, judicial district of Waterbury at Waterbury, Docket Number CV 03-0180259 S (October 31, 2003, Alvord, J.). A suit was filed seeking actual damages, punitive damages, attorneys fees as well as an injunction and a decree requiring the defendants to "remove the barricade that divides the parking lots of 512 and 504 Middlebury Road . . . and an order prohibiting and restraining the defendant from erecting such barricade in said parking lots." This was a dispute between the Middlebury Dairy Bar and Vinnie's Pizza. The Dairy Bar erected from time to time a barrier made from some combination of cement flower pots and plastic poles connected with a cable, referred to as "moveable barrier." This moveable barrier was erected during the hours that the Dairy Bar was closed but Vinnie's Pizza was open. It was designed to be placed overnight to prevent tractor trailer trucks from using the parking lot as a cut through to access the coffee and doughnut business down the road. Gen. Stat § 52-570 was pled. The court found that there was no evidence of a deliberate malicious intent to impair the plaintiff's enjoyment of their property by periodic erection of a movable barrier. By inference the moveable barrier was found to be a structure under Gen. Stat. § 52-570.
The Motion to Strike turns on the Statutory meaning of one phrase in Gen. Stat. § 52-570, "erects any structure thereon" and a similar phrase in Gen. Stat. § 52-480 "malicious erection . . . of any structure upon it." The legal issue is whether these statutes require the structure to be in existence. "When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature . . . In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply . . . In seeking to determine that meaning, General Statutes § 1-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered . . . In addition, General Statutes § 1-1(a) provides in relevant part that words and phrases shall be construed according to the commonly approved usage of the language; and technical words and phrases, and such as have acquired a peculiar and appropriate meaning in the law, shall be construed and understood accordingly . . . When a statute does not define a term, we look to the common understanding expressed in the law and in dictionaries." State v. Wianer, 112 Conn.App. 458, 464 (2009). Gen. Stat. §§ 52-570 and 52-480 are not ambiguous. The plain reading of both Gen. Stat. §§ 52-570 and 52-480 require the actual existence of a structure before such a cause of action for damage for malicious erection of a structure can be prosecuted.
This is a dispute between two adjoining land owners in Stamford, Connecticut an area that is somewhat countrified. Seven years after the passage of Gen. Stat. §§ 52-570 and 52-480 a man was born in Massachusetts. He became a well-known poet. First published in 1914, a poem he penned may be useful in the resolution of this dispute. This poem is commended to the litigants. It is a metaphorical poem written in blank verse set in the countryside North of Boston. It is about one man questioning why he and his neighbor dispute a stonewall that divides their farms. The stonewall is a metaphor adopted sadly by the author about the issues that divide people and their human relationships. In "Mending Wall" Robert Frost wrote:
Before I built a wall I'd ask to know
What I was walling in or walling out,
And to whom I was like to give offence.
Mending Wall concludes: "Good fences make good neighbors."
The court urges these two neighbors to resolve their differences and reinstate their neighborly ways.
In any event, the court is required to render a decision on the Motion to Strike. The court has applied the well-known rules concerning a Motion to Strike, Faulkner v. United Technologies Corp., 240 Conn. 576, 580 (1997). The Motion to Strike #110.00 is granted striking the entire Sixth Count and the injunctive Claim for Relief of the Sixth Count.