Summary
dismissing trespass claim where the trespass, in the form of debris allegedly placed on plaintiff's property by defendant, did not cause direct injury
Summary of this case from Malick v. J.P. Morgan Chase Bank, N.A.Opinion
No. CV99-0153848S
July 7, 2004
MEMORANDUM OF DECISION
The plaintiff, Ru-Jack Development is a Connecticut partnership comprised of John Daddona and Russell Miller as partners. It acquired title to a 2 1/2-acre parcel at Main Street Rear in Watertown, known as the "railroad property" on April 1, 1987. On July 18, 1996 Philson, Inc. acquired title to 1453 Main Street in Watertown from Stephen Lukos. The easterly boundary line of that property bordered approximately 100 feet of the westerly boundary line of the plaintiff's property.
Mr. Lukos acquired title to 1453 Main Street sometime in 1980. At that time it was unimproved land, which generally sloped downward from the road to the plaintiff's property. Fill had been added to the property for several years before he bought it. Sometime in the early 1980s Lukos built a concrete wall along a portion of his northerly boundary and a concrete block wall along the northeasterly boundary line and a portion of the easterly boundary line. These walls were built so Lukos could add some fill in order to build a building on his property, although the walls were actually built after the construction. He in fact built a 4500 square foot building which he used for his business for 15 years until he vacated the premises in January of 1996.
The concrete block wall was made from large (2' × 2' × 5') blocks that were referred to as (Mafia Blocks). These were not cemented together but merely piled on top of each other. The block wall in the northeasterly line was marked by a curved line on plaintiff's Exhibit 1 and was several courses high and shown in several photo exhibits. The evidence as to the balance of the block wall was very vague as to when it was built or how high it was. There are no photographs of it and the plaintiff seems to be saying that it is now covered by the fill and debris that has been left along the property line. Lukos testified that nothing happened to the block walls from the time they were built until he vacated the premises on July 18, 1996.
Jack Daddona, one of the plaintiff partners testified and his testimony is more notable for what it didn't say than what it did say. He testified they purchased the property for development, but never developed it. He described the property as basically being divided down the middle running north to south by Steele Brook. It was the property on the easterly side of the Brook that was to be developed. Their property west of the Brook was composed of dense vegetation and because of it the boundary line between it and the defendant's property was not even observable. He claims he never walked on that side of the Brook from the time they acquired title in 1987 until early 1997. He had no idea until 1997 that there was a wall there, let alone when it was constructed or when or how it deteriorated or fell. For that same time frame he has no idea when or how fill, debris or rocks moved from the defendant's property onto theirs or if in fact it came from the defendant's property.
He claims that about 6 years ago they decided to sell the property instead of developing it and in the process of showing the property to a prospective purchaser in March of 1997, he walked that property along the defendant's easterly property line for the first time. It was then that he discovered 3 problems: 1) a pipe from the defendant's property discharging polluted water onto their property; 2) a utility line from the defendant's property over theirs; and 3) debris and concrete blocks from a collapsed wall which he claims encroached upon their property.
He immediately brought this orally to the attention of the defendant and then confirmed it in writing. In the original Complaint of June 15, 1999, the plaintiff complained of all three problems and sued for their removal and money damages. Over time the discharge pipe was removed by the defendant; as well as the utility line and any observable concrete blocks. In its most recent Revised Complaint dated February 2, 2001, the plaintiff now only complains that a wall on the defendant's property had collapsed and fallen onto the plaintiff's property and that the defendant had failed to repair it or remove the debris that had fallen onto the property which it claims constituted both a trespass and private nuisance. It only seeks money damages in that Revised Complaint, his attorney's claim to the contrary notwithstanding.
Plaintiff's counsel argues that because Lukos testified that the wall was perfect when he conveyed the property to the defendant on July 18, 1996 and because Daddona first observed its deteriorated condition in March of 1997, that all the collapsing of walls and migration of materials onto its property must have occurred during the eight months that the defendant owned the property from July 1996 to March 1997.
That is simply not reasonable or logical and is not supported by the evidence. The fact that Mr. Lukos' testimony on that subject was "uncontroverted," does not make it believable. It simply is not, and his motive is too obvious for comment. He wants the court to believe that for 15 years not a pebble moved from his property, but in the next few months a veritable avalanche took place. The defendant's Vice President testified that the defendant never even used the parking lot to the rear of their building at 1453 Main Street from July of 1996 to March of 1997 and made no use of their property that could have caused that level of deterioration during that short time frame.
There is simply no reliable evidence as to when or if a wall collapsed or when materials from the defendant's property actually migrated into the plaintiff's property. The fact that this was of little significance to the plaintiff is borne out of the fact that it never even inspected that area for the 10 years before its discovery.
On the question of damages the plaintiff admitted that the existence of the rocks and debris on its westerly boundary line did not affect their use of their property or effect its marketability. The plaintiff presented no evidence that the value of its property had decreased in any way because of the condition of the property line.
Instead it offered the testimony of George Touponse, the principal of Suburban Construction as to the cost of removing the fill, rocks and debris on both sides of the subject boundary line and resloping and regrading the land on the defendant's side of the property line to ensure no future migration. He estimated the cost of that work to be $28,800.00 and that is apparently what the plaintiff is asking the court to award.
Touponse admitted that he was aware that this kind of proposal would require both state and local wetland approval. Neither he nor the plaintiff sought such approval and there is no evidence that approval would have been given. However, personnel from both the Watertown and State Wetlands agencies did meet at the property to inspect it. There were discussions of both the removal of 3 or 4 of the mafia blocks that had fallen onto the plaintiff's property as well as the rocks and debris.
Mary Barton, the Wetlands Officer for Watertown along with Cheryl Chase, a civil engineer for the state D.E.P. met on the property to conduct a Feasability Study for the removal of debris and blocks. Barton testified she would oppose any application to remove the debris. She felt it would destabilize the area and it would take a long time to stabilize it. Therefore, the defendant filed an application with both the Town and State to remove the concrete blocks which applications were approved in early 2000 and the 3 or 4 blocks were removed by the defendant. There is no evidence that either the town or the state after their review of the site issued any orders to the defendant to correct or remove anything that may have violated any state or local regulation.
The defendant's Vice President Paul Decerbo testified to the lengths he went on behalf of the defendant to remove the problems complained of by the plaintiff. Those efforts were substantial. He testified he was sure that the fill and debris on the plaintiff's property had not come from its property. He identified a photo take by him on May 25, 2004 from on top of the block wall looking down towards the area in question and because of the dense vegetation it is impossible to see anything on the ground.
In its First Count the plaintiff claims a Trespass and in the Second Count a Private Nuisance. To maintain an action in Trespass a plaintiff must establish four elements: 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. Abington Ltd. Partnership v. Talcott Mountain Science Center, 43 Conn. Sup. 424, 11 Conn. L. Rptr. 349 (1994); Avery v. Spicer, 90 Conn. 576 (1916).
The Court agrees with the defendant that there is no evidence as to when, how or if debris from the defendant's property came to be located on the plaintiff's property. There was evidence that 3 or 4 of the large blocks were on the plaintiff's property and the defendant has removed them. The only thing the court knows is that sometime prior to 1980 when Mr. Lukos acquired title to the defendant's property that predecessors in title had added fill to the property. The Court also knows that Lukos himself added fill sometime after 1980 in conjunction with the construction of his building. If he is to be believed, there was no migration of fill or debris from his premises onto the plaintiff's at least until July 18, 1996 when he sold the property to the defendant.
We also know the defendant from that day until March of 1997, when the plaintiff claims for the first time that it became aware of the problems, never added any material to its property or took any action with it to cause any migration of rocks or debris. The plaintiff has simply failed to demonstrate any intentional conduct on the part of the defendant or any physical invasion of the plaintiff's property by the defendant.
It has further been established by Mr. Daddona, a partner in the plaintiff, that there is no direct injury or damage flowing from whatever he claims happened. Mr. Daddona admitted he hadn't even viewed that property line in the first ten years of its ownership. When he did observe the debris he testified it did not adversely affect the use or enjoyment of their property, affect its marketability or diminish the value. As far as the remedial action proposed by Mr. Touponse there is no evidence that this would even be approved by the regulatory agencies and what little evidence there is on the subject would cast serious doubt on its approval.
In a claim of nuisance a plaintiff must prove four elements to be successful: 1) the condition complained of had a natural tendency to create damage and inflict injury upon a person or property; 2) the damage created was a continuing one; 3) the use of the land was unreasonable or unlawful; and 4) the existence of the nuisance was the proximate cause of the plaintiff's injuries and damages. Tomasso Bros., Inc. v. October Twenty-Four Inc., 221 Conn. 194, 197 (1992). For all of the reasons previously recited the plaintiff has failed to prove those elements by the necessary standard.
Judgment shall enter for the defendant as to both counts.
Gormley, JTR