Opinion
No. CV04-4000354S
May 8, 2007
MEMORANDUM OF DECISION
STATEMENT OF FACTS
This is an action by the plaintiffs, Richard W. Chase and Jeannette A. Chase against the defendants, Anthony J. Tusia and Kathleen Mills. The action is brought in two counts, one in trespass and one in private nuisance. The plaintiffs seek injunctive and monetary relief.
The defendants filed two counterclaims which were withdrawn at trial.
The plaintiff's action arises from flooding that has occurred on their land by an obstructed breachway in an earthen dam located on the defendants' property. Prior to 1985 and prior to the defendants' acquisition of their property, Crystal Water Company created a pond by constructing an earthen dam across a portion of what is now Tusia's property. In response to complaints of flooding, Crystal Water Company partially removed the earthen dam. However, Crystal Water Company did not completely demolish the dam, but instead opened a breachway that drained the pond that formed. The creation of the breachway eliminated the flow of water onto the Chase and other properties.
Subsequent to the defendants' acquisition of their property, the breachway in the dam attracted beavers that proceeded to erect a beaver dam across the breachway. As a result of the beaver dam a pond formed and excess water flowed onto, and flooded, a portion of the plaintiff's property. The beavers first appeared on the Tusia property sometime in 1991. From 1991 through the late 1990s, the Chase land was sporadically flooded as Tusia attempted to regulate water flow by means of an exit pipe running through the breachway and by occasionally dismantling the beaver dam constructed in the breachway. Sometime after 1999, Tusia abandoned his efforts to control the flow of water through the breachway and consequently overflow of water onto Chase and neighboring lands became an ongoing and continuous condition.
DISCUSSION
The plaintiffs have brought a count in trespass and a count in private nuisance. The elements of a Connecticut action for trespass are: "(1) ownership or possessory interest in land by the plaintiff; (2) invasion, intrusion or entry by the defendant affecting the plaintiffs' exclusive possessory interest; (3) done intentionally; and (4) causing direct injury." Abington Ltd. Partnership v. Talcott Mountain Science Center, 43 Conn.Sup. 424, 427 (1994). The court finds, however, that the defendants' actions were not sufficiently intentional to support an action for trespass. In addition, the plaintiff's claims of trespass and of private nuisance are based on the same conduct of the defendants. The court therefore holds that if the plaintiffs have a cause of action against the defendants, it is more properly analyzed as a private nuisance.
In Pestey v. Cushman, 259 Conn. 345, 361 (2002), the court held "in order to recover damages in a common-law private nuisance cause of action, a plaintiff must show that the defendant's conduct was the proximate cause of an unreasonable interference with the plaintiff's use and enjoyment of his or her property. The interference may be either intentional. . . or the result of the defendant's negligence." (Citation omitted.) While the plaintiff's claim that the defendants have maintained the beaver dam causing the flooding, the defendants claim that it is the beavers that maintain the dam, not the defendants. Neither of these assertions address the central issue of the case. The court agrees that the defendants do not maintain the beaver dam, and the court finds as a fact that the defendants did nothing to attract beavers onto the property. However, because the dam is located on the defendants' property the question is whether the defendants have a duty to alleviate the flooding caused by the beaver dam.
"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). . . While under the law of property, water dripping from an overhanging eve was actionable, the law of torts, which governs surface water, requires the water to do damage before a right of action accrues." Street v. Woodgate Condominium Assoc., Superior Court, judicial district of Middlesex at Middletown, Docket No. CV 01 096955 (January 13, 2004, Gordon, J.).
In 1980, the Connecticut Supreme Court in Page Motor Co. v. Baker, 182 Conn. 484, 487-88 (1980), analyzed the common-law principle of the "common-enemy doctrine" for surface waters. In Page Motor, the Supreme Court modified the first part of this doctrine and determined that in Connecticut a landowner repelling water from his land had a duty to do so in a reasonable manner and was "entitled to take only such steps as are reasonable, in light of all of the circumstances of relative advantages to the actor and disadvantages to the adjoining landowners. . ." Id., 488-89.
In Ferri v. Pyramid Construction Co., 186 Conn. 682, 686 (1982), the Supreme Court reiterated its holding in Page Motor, but further explained that the reasonable use doctrine set forth in Page Motor did not apply to incidents where surface water flowed off the defendants' property onto the land of the adjoining landowner. In a trial court opinion the court held "[t]hus, landowners who divert surface water from its natural flow in such a way as to substantially damage the property of their neighbors are liable regardless of whether or not their conduct is reasonable." Crowell v. Kogut, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 04 4000404 (October 19, 2005, Weise, J.).
"An invasion of one's interest in the use and enjoyment of land resulting from another's interference with the flow of surface water may constitute a nuisance. . ." Restatement 2d of Torts, § 833. "A private nuisance is a nontrespassory invasion of another's interest in the private use and enjoyment of land." (Internal quotation marks omitted.) Pestey v. Cusham, supra, 259 Conn. 352.
"The term nuisance refers to the condition that exists and not to the act or failure to act that creates it. If the creator of the condition intends the acts that brings about the condition found to be a nuisance, the nuisance thereby created is said to be absolute and its creator is strictly liable. . . If the condition claimed to be a nuisance arises out of the creator's unintentional but negligent act, i.e., a failure to exercise due care, the resulting condition is characterized as negligent nuisance. . . [T]he only practical distinction between an absolute nuisance and one grounded in negligence is that contributory negligence is not a defense to the former but may be as to the latter." (Citations omitted; internal quotation marks omitted.) Quinnett v. Newman, 213, Conn. 343, 348-49, overruled on other grounds, Craig v. Driscoll, 262 Conn. 312, 329 (2003).
"The conduct necessary to make [an] actor liable for. . . a private nuisance may consist of (a) an act; or (b) a failure to act under circumstances in which the actor is under a duty to take positive action to prevent or abate the interference with the. . . invasion of the private interest." Restatement 2d of Torts, § 824. "A possessor of land is subject to liability for a nuisance caused while he is in possession of an abatable artificial condition on the land, if the nuisance is otherwise actionable, and (a) the possessor knows or should have known of the condition and the nuisance. . . and (b) he knows or should have known that it exists without the consent of those affected by it, and (c) he has failed after a reasonable opportunity to take reasonable steps to abate the condition or to protect the affected persons against it." Restatement 2d of Torts, § 839.
The Restatement 2d of Torts, § 840, gets to the core of the present issue and states that "[a] possessor of land is not liable to persons outside the land for a nuisance resulting solely from a natural condition of the land." However, the Restatement expresses a narrow definition of "natural condition" and provides that "[t]he term "natural condition" of land means a condition that is not in any way the result of human activity. The term comprehends. . . water that is on the land wholly through natural causes and birds, animals or insects that have not been brought upon it or attracted by act of man. The term does not comprehend conditions that would not have arisen but for the effect of human activity even though the conditions immediately resulting from the activity were harmless in themselves and a harmful condition has arisen through the subsequent operation of natural forces. Thus, an artificial structure that was harmless when created but which has become dangerous through natural decay is not a natural condition." Here the artificial structures which were harmless when created by the defendants' predecessor in title, Crystal Water Company, are the earthen dam and breachway, which have become harmful through subsequent actions by the beavers.
The court finds that the defendants did not attract the beavers to the property. However, the facts reveal that the beavers used the earthen dam and breachway, created by the previous landowner, to build their beaver dam. Thus, pursuant to Restatement 2d of Torts, because the beavers were attracted to artificial conditions on the land — the earthen dam and breachway — the beaver dam is not considered a natural condition, but rather an artificial condition. Consequently, the defendants are liable for damages caused by the surface water that was diverted onto the plaintiffs' land as a result of their failure to remove the beaver dam, a non-natural abatable condition existing on their land.
REMEDY
The plaintiffs have demanded injunctive relief or in the alternative monetary damages.
In order to recover monetary damages the court must consider the following factors: (1) irretrievable and imminent injury, (2) lack of an adequate remedy at law and (3) a balancing of the equities favoring the granting of the injunction.
Testimony at trial revealed that when the beaver dam was removed, the beavers reconstructed it. Consequently, it is unclear to the court from anything presented at trial how the defendants could effectively remove the beaver dam unless it was done continually on a periodic basis. The court therefore does not find an injunction appropriate. Because the court does not find injunctive relief appropriate it need not consider the defendants' defense of laches, which is an equitable defense pertaining only to equitable remedies.
The testimony at trial indicated that the flooded area of the plaintiff's land constituted approximately one-fourteenth of an acre. The plaintiff, Richard W. Chase, testified over objection that without the flooding his property would be worth $650,000, and with the flooding his property would be worth $600,000. Thus, the testimony of the plaintiff was that the damage to his property was $50,000. The defendants strongly objected to this testimony arguing that the plaintiff was not an expert. The defendants' objection was over-ruled at trial. It is a settled principle of law that the owner of personal or real property may testify to its value, even if ownership is the only qualification shown. Misisco v. La Maita, 150 Conn. 680, 684 (1963). In Peskey v. Cushman, supra, 259 Conn. 364, the trial court properly permitted a plaintiff to testify that, in his opinion, the value of his property had decreased since odors began emanating from the defendants property and those odors had caused a diminution in value. While the court allowed Mr. Chase to express his opinion regarding the diminution in value, the court finds his testimony lacks credibility.
HEARING IN RESPECT TO DAMAGES
The court finds that there is a cause of action for private nuisance but also finds that injunctive relief is inappropriate and that there is no reliable evidence from which damages may be determined. Accordingly, the court directs the plaintiffs and the defendants to contact the clerk's office to schedule a hearing at which each side will be allowed to introduce evidence from which the court can determine the diminution in value, if any, resulting from the flooding.