Opinion
DBDCV185012681S
08-26-2019
Alfred KLOIBER et al. v. Chris JELLEN et al.
UNPUBLISHED OPINION
OPINION
Krumeich, J.
This case concerns the liability of home owners for surface water run-off from their property that damaged a neighboring property. There is little doubt that run off on a rainy day or from snow melt has contributed to saturation of the neighbor’s lawn, erosion of the neighbor’s dirt driveway, pooling of water in the neighbor’s lawn and against the foundation of the neighbor’s house, which in turn probably contributed to the damp basement where mold was discovered. What is missing is any credible proof that defendants are legally responsible for the run-off.
The properties in question are located in Sherman off Route 39 South between Wanzer Mountain and Squantz Pond. Defendants own 158 Route 39 South ("Defendants’ Property"). Downhill from and adjacent to Defendants’ Property is 160 Route 39 South (the "Subject Property"), which plaintiffs purchased through an entity and maintain as a rental property. Plaintiffs reside at 162 Route 39 South in a house downhill from and adjacent to the Subject Property that is on the shore of Squantz Pond ("Plaintiffs’ Property").
No claim is made concerning Plaintiffs’ Property.
There was no expert evidence offered at trial. The Court takes judicial notice that water tends to travel downhill following low points in the ground such as gullies and over time water flow may erode the ground into channels or rivulets. That is probably what happened here when surface water naturally flowed downhill from Wanzer Mountain, across Route 39 South, across Defendant’ Property and onto the Subject Property. During and after rain events and snow melt surface ground water migrated from Defendants’ Property to the Subject Property and probably contributed to the conditions described above. Photographs demonstrated that the surface water followed identifiable paths that were probably cut by the water traveling downhill in an ample flow from events occurring over a considerable period of time. There is no evidence defendants were responsible for these natural pathways or that they purposefully directed surface water onto the Subject Property. There is no evidence to calculate and differentiate the flow from precipitation falling on Defendants’ Property and the natural flow of surface water from uphill sources and the effect of precipitation on the Subject Property. Presumably, surface water from all these sources contributed to the conditions of which plaintiffs complain.
"Surface waters are ‘those casual waters which accumulate from natural sources and which have not yet evaporated, been absorbed into the earth, or found their way into a stream or lake. The term does not comprehend waters impounded in artificial ponds, tanks or water mains.’ " Taylor v. Conti, 149 Conn. 174, 178 (1962) (citations omitted).
The only activity by defendants that plaintiffs point to as contributing to the migration of surface water onto the Subject Property concerns the construction of defendants’ house between 1989 and 1992. Plaintiffs complain that defendants developed a woodland lot by constructing a house with roofs, gutters, leaders and downspouts, a driveway and a parking area, which plaintiffs note added "impervious surfaces" that plaintiffs contend channeled surface water that eventually traveled to the Subject Property. Defendants also constructed a septic system that included a swale to divert groundwater way from the septic fields. According to building department records, the septic system was approved on April 20, 1989 and defendants received a certificate of occupancy on March 21, 1992. All the changes in surface conditions to Defendants’ Property were in accordance with the building plans approved by municipal authorities when their house was constructed and certificates of occupancy were issued. Notably, there is no evidence of recent activity on Defendants’ Property that diverted or increased the flow of surface water onto the Subject Property.
The parties stipulated the Defendants’ Property was woodland in December 1988, when defendants purchased it, and the house, driveway and septic fields were constructed in 1990.
There is evidence that Donald Haas, the former owner of the Subject Property and plaintiffs’ entity’s predecessor-in-interest, and the seller of Defendants’ Property to defendants was aware of a problem with surface water migration even before defendants developed their property because there was an earthen berm between the properties. When Mr. Haas sold Defendants’ Property to defendants he imposed as a condition of sale that defendants extend the existing berm between the properties by 25 feet. The earthen berm was extended as agreed. There was no further work on the berm. The obvious purpose of the berm was to divert surface water away from the Subject Property. To the extent that the berm channeled water around its ends plaintiffs’ predecessor in title agreed to this diversion.
There is no evidence that defendants have any contractual duty to maintain the berm as extended.
Plaintiffs purchased the Subject Property after Mr. Haas’ death through an entity known as Fred’s Country Rental, LLC, owned by plaintiff Kloiber, in December 2010, approximately twenty years after development of Defendants’ Property. Plaintiffs were on notice of water problems before the purchase of the Subject Property. The home inspection report noted "watermarks evident" in the basement as proof "water entered this area in the past" and "mildew/mold type formations were observed." Plaintiff Kloiber admitted to seeing "specks" the inspector pointed out to him during the inspection, but would not admit he was told about the suspected mold by the inspector. The Court finds this testimony not credible and concludes that plaintiffs were well-aware of the problems noted in the report and visible during the inspection. Six months later when they took possession in June 2011 plaintiffs noticed mold in the basement that presumably had worsened during the months the property had been vacant; eventually plaintiffs had to have the mold professionally remediated in July 2012. The Court finds that plaintiffs knew there was a water problem with the basement and mold was growing, but they thought they could leave the property vacant and later remediate the mold themselves.
There is also reason to believe plaintiffs were aware of surface water migrating from Defendants’ Property and wet and eroded conditions on the Subject Property long before they raised the issue with defendants for the first time orally in 2014 and in writing in 2017. Plaintiffs bought their property adjacent to the Subject Property in 1999 and moved into their residence in 2012. The conditions relating to surface water migration were presumably longstanding and would have been evident to anyone familiar with the Subject Property, including plaintiffs as the owners of the adjacent Plaintiffs’ Property.
The surface water collected on Wanzer Mountain tends to migrate downhill across Route 39 onto Defendants’ Property, which defendant Chris Jellen testified was "very wet," and from there through natural gullies, channels and rivulets to the Subject Property. As noted above, these natural channels were likely the result of longstanding natural water flow, not any activity to direct or increase the flow onto the Subject Property by defendants. The swale was obviously constructed to protect the septic fields from run-off from the Mountain and roadway and the berm extended at the direction of Mr. Haas, then owner of the Subject property, would tend to direct surface run-off around these barriers but the natural flow of water would still be downhill onto the Subject Property and there is no evidence defendants directed or increased the natural flow onto the Subject Property. All the changes to the contours on defendants’ property and the structures and paved areas erected were in accordance with approvals received from municipal authorities when the defendants’ house was constructed and presumably were known and accepted by Mr. Haas, plaintiffs’ entity’s predecessor in interest, and would have been known by plaintiffs before the purchase of the Subject Property. There is no proof defendants were required to install a system to collect, capture and retain surface water and divert excess surface water away from the Subject Property.
Nor is there proof the flooding and erosion experienced on the Subject Property was caused by any alterations to Defendants’ Property. No expert testimony was introduced to explain why such flooding and erosion occurred. That the Subject Property was downhill from Wanzer Mountain and Highway 39 suggests natural water flow from these sources, as well as precipitation falling onto the Subject Property itself, could be alternative sources of the water flow causing the erosion, flooding and saturation reported by plaintiffs. No expert testimony, reports or calculations were offered concerning the sources of water flow onto the Subject Property from Defendants’ Property and other sources, the causes of the conditions complained about or the effect on the water flow from development of the Defendants’ Property. Without evidence to support what, if any, effect on the natural flow of surface water resulted from the development of Defendants’ Property the plaintiffs ask the Court to speculate about the cause of the conditions complained about on the Subject Property. The Court cannot accept plaintiffs’ leap of logic that defendants are responsible for water-related damage to the Subject Property.
The basic legal principle in the area of surface water flow was announced in Falco v. James Peters Associates, Inc., 165 Conn. 442, 445-46 (1973): " ‘A landowner cannot use or improve his land so as to increase the volume of the surface waters which flow from it onto the land of others, nor can he discharge surface waters from his land onto the land of others in a different course from this natural flow, if by so doing he causes substantial damage.’ ... Moreover, one who maintains such an alteration in his land, though it was created by his predecessor in title, may, after a request to remove it, be held liable for the continuing injury." (Citations omitted.)
The key is whether improvement or use caused an increase in volume of flow or alteration of the natural flow of water onto the neighboring property. See Falco, 165 Conn. at 445-46 ("A landowner cannot use or improve his land so as to increase the volume of the surface waters which flow from it onto the land of others, nor can he discharge surface waters from his land onto the land of others in a different course from this natural flow, if by so doing he causes substantial damage").
If the defendants have not increased nor diverted the natural flow of surface water onto the neighboring property there is no liability: "[a]s our Supreme Court succinctly noted, a land owner ‘incurs no liability by reason of the fact that surface water falling or running onto his land flows thence to the property of others in its natural manner.’ " JMS Newberry, LLC v. Kaman Aerospace Corp., 149 Conn.App. 630, 639 (2014), quoting Ferri v. Pyramid Construction Co., 186 Conn. 682, 685 (1982). As in JMS Newberry, "plaintiff failed to present any evidence that would establish that the defendants were maintaining an alteration that diverted surface water off their property ... there is no evidence in the record that the defendants’ property had been altered so as to discharge water off of their property in a different course than its natural flow." 149 Conn.App. at 638-39, 641. If anything, the swale and berm would tend to direct surface water away from the house on the Subject Property, which is probably why Mr. Haas insisted the berm be extended. To accept plaintiffs’ argument that development of woodland by improvements with impervious surfaces alone exposes the uphill owner to liability for erosion downhill is simply not a burden imposed by law. There is no evidence that construction of the defendants’ house "significantly increased the water flow onto the plaintiff’s property" or diverted the natural flow onto the Subject Property and thus plaintiffs failed to prove these improvements proximately caused the erosion on the Subject Property. Compare, Ferri, 186 Conn. at 688. There was no evidence of the natural water flow before improvements to Defendants’ Property; it is probable that surface water flowed down the mountain and over the highway onto the Defendants’ Property before it was improved and that excess water migrated downhill to the Subject Property. There is no evidence that the changes made to Defendants’ Property caused the conditions complained of by plaintiffs. The law does not require that a landowner retain undeveloped property in its natural state; development is permissible so long as the changes are reasonable and do not cause material harm to adjacent properties. See Page Motor Co., Inc. v. Baker, 182 Conn. 484, 489 (1980) ("[g]enerally, under the rule of reasonable use, the 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").
"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." JMS Newberry, 149 Conn.App. at 642.
The difficulty in proving causation in such case is exemplified by the court’s observations in Nonkin v. Peschel, 2016 WL 5339516 *6 (Conn.Super. 2016) (Pickard, J.) "[t]he plaintiff made a diligent effort to marshal all of the evidence of causation but was simply unable to prove that it was more likely than not that, but for physical alterations to the defendant’s property, the plaintiff’s house would not have flooded. It is clear that the largest portion of the plaintiff’s property lies downhill from the defendants’ property and that water running off of the highway and off of the defendants’ property will flow toward the plaintiff’s house." The same is true here.
Plaintiffs’ credibility is compromised by overreach in the damages they seek to recover. Plaintiffs are trying to force defendants to pay for many improvements to the Subject Property. Among the items they wish defendants to pay for are a new furnace and ductwork, mold remediation, repairs to the dirt driveway and lawn, replacement of specimen trees, a new septic system, a new roof, new windows, new siding, asbestos abatement, a reconfigured floor plan, all at an estimated cost of $110,000. This overreach is indicative of a general tendency of plaintiffs to blame defendants for shortcomings in the Subject Property. The Court accepts that there are serious water problems on the Subject Property that should be addressed by engineered solutions such as drains, swales, waterproofing and improvements to the house, driveway, lawns and septic system but there is no basis in the law to impose the cost of these improvements on defendants. Indeed, the measure of damages in such case is the diminution in value of the property; although repair costs may be considered if the improvements do not enhance the value of the property, the improvements plaintiffs plan would clearly do so. See Ferri, 186 Conn. at 689.
"The basic measure of damages for injury to real property is the resultant diminution in its value ... There is, however, a well established exception to this formula; ‘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.’ " Ferri, 186 Conn. at 689.
Plaintiffs have not satisfied their burden of proof that defendants trespassed and damaged the Subject Property. The development of the Defendants’ Property was reasonable use of the property and any incidental diversion of surface water is not actionable. Although plaintiffs refer to "defendants’ failure to implement an approved plan," no evidence was adduced that they failed to comply with any conditions for soil erosion and sedimentation control imposed by the town. Nor were they subject to a duty to maintain the earthen berm between the properties. Because defendants’ conduct in developing their property in compliance with municipal approvals was reasonable under the circumstances, and there is no proof of unreasonable activity relating to the flow of surface water onto the Subject Property, defendants violated no duty owed to the owner of the Subject Property and were not negligent.
Nor have plaintiffs proven a private nuisance for similar reasons: the failure to prove defendants’ conduct intentionally or negligently and unreasonably interfered with plaintiffs’ use of the Subject Property and caused the conditions on the Subject Property of which plaintiffs complain. See Rickel v. Kamaromi, 144 Conn.App. 775, 782 (2013). See generally Pestey v. Cushman, 259 Conn. 345, 360-62 (2002).
"A ‘private nuisance,’ in contrast to a trespass, ‘is a nontrespassory invasion of another’s interest in the private use and enjoyment of land ... The law of private nuisance springs from the general principle that [i]t is the duty of every person to make a reasonable use of his own property so as to occasion no unnecessary damage or annoyance to his neighbor ... The essence of a private nuisance is an interference with the use and enjoyment of land.’ ... ‘[I]n 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.’ " Rickel, 144 Conn.App. at 782-83 (citations omitted).
"On the basis of our reexamination of our case law and upon our review of private nuisance law as described by the leading authorities, we adopt the basic principles of § 822 of the Restatement (Second) of Torts and conclude that 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 ...: Whether the interference is unreasonable depends upon a balancing of the interests involved under the circumstances of each individual case. In balancing the interests, the fact finder must take into consideration all relevant factors, including the nature of both the interfering use and the use and enjoyment invaded, the nature, extent and duration of the interference, the suitability for the locality of both the interfering conduct and the particular use and enjoyment invaded, whether the defendant is taking all feasible precautions to avoid any unnecessary interference with the plaintiff’s use and enjoyment of his or her property, and any other factors that the fact finder deems relevant to the question of whether the interference is unreasonable. No one factor should dominate this balancing of interests; all relevant factors must be considered in determining whether the interference is unreasonable." Pestey, 259 Conn. at 360-61 (citations omitted).
Plaintiffs have not proven that defendants violated state and local law because their file in the Sherman Building Department did not include a soil erosion and sedimentation control plan. Plaintiffs cited 2002 state guidelines for soil erosion and sediment control that were published ten years after defendants’ house was completed. The statutes, C.G.S. § § 22a-325-29, have been amended over the years. Plaintiffs have not shown what regulations were in effect when the defendants’ building plans were approved by local authorities. That the plans were reviewed and approved by the town, which issued certificates of occupancy, is prima facie evidence that defendants complied with applicable regulations. Moreover, the regulations exempt "a single-family dwelling that is not part of a subdivision of land." No evidence was adduced that would show the construction of defendants’ home was not exempt. Plaintiffs’ calculation that more than one-half acre was disturbed was not credible evidence that the project fell within the regulations or that the term "permitted use" related to construction of a single-family home that was not part of a subdivision. Without evidence that defendants’ construction violated building regulations in effect in 1989-92, nor any evidence of more recent activity in violation of pertinent regulations, plaintiffs have not established any predicate for their negligence per se claim. Nor have they established that the absence of a soil erosion and sedimentation control plan caused the conditions of which they complain.
For the reasons stated above, plaintiffs’ claims against defendants are denied.
The Court has not reached the special defenses alleged by defendants.