Opinion
CV175040060S
08-22-2019
Joseph Michael SYLVAIN et al. v. Kenneth PAECHT et al.
UNPUBLISHED OPINION
Wilson, J.
STATEMENT OF CASE AND PROCEDURAL HISTORY
The plaintiffs Joseph Michael Sylvain and Gina Marie Sylvain (the plaintiffs) commenced this civil action by service of writ, summons and complaint against the defendants, Kenneth Paecht and Dawn M. Lewis a/k/a Dawn M. Paecht (defendants). The three-count amended complaint which is the operative complaint was filed on July 16, 2018, and alleges the following facts. The plaintiffs own real property, a three-story rental home, at 259-61 Blohm Street, West Haven, Connecticut. The defendants own real property, a three-story rental home, at 255-57 Blohm Street, West Haven, Connecticut. The plaintiffs and the defendant, Kenneth Paecht, are first cousins. Their properties are contiguous, with the plaintiffs’ rental home located to the west of the defendants’ rental home. The plaintiffs have used a portion of the premises as the sole and exclusive driveway for 259-61 Blohm Street. In May 2017, the defendants paved a portion of said driveway, created a curb over said driveway, and placed planters along the property line. On September 12, 2017, the plaintiffs installed a fence on their property in the backyard, between a parking area of the two properties. Thereafter, in October 2017, the defendants installed a fence on a part of their land that the plaintiffs had previously used as a driveway. The plaintiffs allege that the defendants’ actions in installing a fence and creating a curb has interfered substantially with their use and enjoyment of their driveway and property and is dangerous and hazardous as it has impeded egress and ingress to their property, including their back parking area, and will block emergency vehicles. They further allege no valid reason exists to support the defendants’ actions and that, upon information and belief, said actions were done out of malice and spite and to annoy the plaintiffs’ use and enjoyment of their property. The plaintiffs allege that the defendants’ actions have, and will continue to, not only affect the plaintiffs’ peaceful use and enjoyment of the property, but also have, and will continue to, unreasonably interfere with their property rights, including but not limited to, the value of their property and their rental income.
The plaintiffs assert claims sounding in common-law nuisance and violations of Connecticut General Statutes § § 52-480 and 52-570. The plaintiffs seek, inter alia, money damages, a judgment determining the rights of the parties and the right(s) related to a described right of way, injunctive relief, and attorneys fees. The defendants filed an answer and special defense in response on October 17, 2018, to which the plaintiffs filed a reply on the same day. A two-day court trial commenced on December 20, 2018. This court has carefully considered the testimony and evidence presented at the trial and has reached the findings and conclusions described herein.
STANDARD OF REVIEW
"It is an abiding principle of our jurisprudence that [t]he sifting and weighing of evidence is peculiarly the function of the trier [of fact]. [N]othing in our law is more elementary than that the trier [of fact] is the final judge of the credibility of witnesses and of the weight to be accorded to their testimony ... The trier has the witnesses before it and is in the position to analyze all the evidence. The trier is free to accept or reject, in whole or in part, the testimony offered by either party." (Citations omitted; internal quotation marks omitted.) Welsch v. Groat, 95 Conn.App. 658, 664, 897 A.2d 710 (2006).
"It is well established that in cases tried before courts, trial judges are the sole arbiters of the credibility of witnesses and it is they who determine the weight to be given specific testimony ... It is the quintessential function of the fact finder to reject or accept certain evidence ..." (Citations omitted; internal quotation marks omitted.) In re Antonio M., 56 Conn.App. 534, 540, 744 A.2d 915 (2000). The trier of fact must evaluate the credibility of both testimonial and documentary evidence. Coombs v. Phillii ps, 5 Conn.App. 626, 627, 501 A.2d 395 (1985) (per curiam). "The fact-finding function is vested in the trial court with its unique opportunity to view the evidence presented in a totality of the circumstances, i.e., including its observations of the demeanor and conduct of the witnesses and parties." (Internal quotation marks omitted.) Cavoli v. DeSimone, 88 Conn.App. 638, 646, 870 A.2d 1147, cert. denied, 274 Conn. 906 (2005).
"The trier of fact must observe the demeanor of witnesses and draw inferences as to the motives underlying their testimony and conduct." Christie v. Eager, 129 Conn. 62, 64-65, 26 A.2d 352 (1942). "[T]he trier of fact’s assessment of the credibility of ... witnesses ... is made on the basis of its firsthand observation of their conduct, demeanor and attitude ... The weight to be given to the evidence and to the credibility of witnesses is solely within the determination of the trier of fact." (Internal quotation marks omitted.) Machado v. Statewide Grievance Committee, 93 Conn.App. 832, 839, 890 A.2d 622 (2006). "It is well established that [t]he trier of fact may accept or reject the testimony of any witness ... The trier can, as well, decide what- all, none, or some- of a witness’ testimony to accept or reject." (Citation omitted; internal quotation marks omitted.) Wilson v. Hryniewicz, 51 Conn.App. 627, 633, 724 A.2d 531, cert. denied, 248 Conn. 904, 731 A.2d 310 (1999).
BURDEN OF PROOF/STANDARD OF PROOF
The burden of proof is on the plaintiff[s] to prove all of the essential allegations of their complaint and on the defendant[s] to prove all of the essential elements of their affirmative defense. See Lukas v. New Haven, 184 Conn. 205, 211, 439 A.2d 949 (1981). "While the plaintiff is entitled to every favorable inference that may be legitimately drawn from the evidence, and has the same right to submit a weak case as a strong one, the plaintiff must still sustain the burden of proof on the contested issues in the complaint and the defendant need not present any evidence to contradict it ... The general burden of proof in civil actions is on the plaintiff[s], who must prove all the essential elements of [their] cause of action by a fair preponderance of the evidence." Gulycz v. Stop and Shop, 29 Conn.App. 519, 523, cert. denied, 224 Conn. 923, 618 A.2d 529 (1992). Failure to do so results in judgment for the defendant. Id. In Connecticut, "[a] special defense is an affirmative defense that must be proven by the defendant." (Internal quotation marks omitted.) Caciapoli v. Lebowitz, Superior Court, judicial district of New Haven, Docket No. CV 08 5020658 (March 4, 2010, Berdon, J.T.R.). Like the plaintiff, the defendants must prove all of the essential elements of their affirmative defense by a fair preponderance of the evidence. The ordinary civil standard of proof is the fair preponderance of the evidence standard. Freeman v. Alamo Management Co., 221 Conn. 674, 678, 607 A.2d 370 (1992). "The burden of persuasion in an ordinary civil action is sustained if evidence induces in the mind of the trier a reasonable belief that it is more probable than otherwise that the fact in issue is true." (Internal quotation marks omitted.) Lopinto v. Haines, 185 Conn. 527, 533, 441 A.2d 151 (1981). The standard of proof, a fair preponderance of the evidence, is "properly defined as the better evidence, the evidence having the greater weight, the more convincing force in your mind." (Internal quotation marks omitted.) Cross v. Huttenlocher, 185 Conn. 390, 394, 440 A.2d 952 (1981).
FINDINGS OF FACT
The court makes the following findings of fact by a fair preponderance of the evidence. The plaintiffs and the defendant, Kenneth Paecht, are first cousins, and their maternal grandfather, Joseph Velardi purchased both 255-57 Blohm Street and 259-61 Blohm Street in the 1940s. When both properties were owned by Velardi, tenants in each house regularly used the combined fifteen feet between the homes to access parking in the rear of the properties, which at some unknown point in time had been paved. In 2013, the defendant, Kenneth Paecht purchased 255-57 Blohm Street from Velardi, his grandfather. Thereafter, defendant Paecht quitclaimed a portion of the property to his wife, defendant, Dawn M. Lewis a/k/a Dawn M. Paecht.
The plaintiffs’ mother, Elaine Sylvain inherited 259-61 Blohm Street following Velardi’s death. Subsequently, Michael Paecht, defendant Kenneth Paecht’s brother, entered into negotiations with the plaintiffs’ mother and plaintiff Gina Sylvain, for the purchase of 259-61 Blohm Street. Negotiations were unsuccessful and fell apart and Michael Paecht ultimately did not purchase 259-61 Blohm Street. In December 2016, Elaine Sylvain quit claimed 259-61 Blohm Street to her children, the plaintiffs, Joseph Michael Sylvain and Gina Marie Sylvain.
255-57 Blohm Street and 259-61 Blohm Street are adjacent multi-story homes located in West Haven, Connecticut. Each property consists of identical lots, each forty feet wide, abutting Blohm Street. Each lot contains a ten-foot-wide driveway on the right side of the house, as one faces the house, and a five-foot-wide area, a sidewalk or walkway, on the left side of the house, as one faces the house. The combined distance between the foundation of the two homes is fifteen feet. The plaintiffs’ premises and defendants’ premises are contiguous, with the plaintiffs’ premises to the west of the defendants’ premises.
In December 2016, the plaintiffs began renovations to 259-61 Blohm Street. At this time, the Paecht tenants were still using the combined fifteen-foot area between the homes to access both lots behind 255-57 and 259-61 Blohm Street. As a result of this usage, issues began to arise concerning the parking situation as the plaintiffs had to repeatedly ask the Paecht tenants and/or their guests to move their vehicles so that the plaintiffs could access or exit their property.
In December 2016, Kenneth Paecht and Gina Sylvain had a conversation via text message, in which they discussed the possibility of erecting a fence between the properties. Although Gina Sylvain testified that she was referring, in the texts, to a fence that would separate the back portions of the properties, Kenneth Paecht testified that he was referring to a fence on the property line between their properties that would go the entire length of the line. In said text conversation, Kenneth Paecht acknowledged that a fence on the property line would make snow plowing more difficult. The tone of the conversation changed from cordial to hostile over time. Shortly after the text exchange, Kenneth Paecht painted a white line down the property line and installed snow rods. In 2017, mid-year, the plaintiffs installed a wire fence dividing the back area of the properties, and, approximately four weeks later, the defendants installed the fence at issue. At trial, the parties stipulated that the fence at issue was erected on the defendants’ premises. The court will make additional findings on the merits as necessary.
DISCUSSION
A
COUNT ONE- PRIVATE NUISANCE
Public and private nuisance constitute two separate and distinct causes of action. See Pestey v. Cushman, 259 Conn. 345, 357, 788 A.2d 496 (2002) ("Public nuisance law is concerned with the interference with a public right, and cases in this realm typically involve conduct that allegedly interferes with the public health and safety ... Private nuisance law, on the other hand, is concerned with conduct that interferes with an individual’s private right to the use and enjoyment of his or her land" [citations omitted] ). Id. "A private nuisance 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." (Citations omitted; internal quotation marks omitted.) Id., 352. Where a plaintiff asserts a claim for private nuisance, that "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; ... (nuisance is created intentionally if defendant intends act that brings about condition found to be nuisance); 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." (Citations omitted.) Id., 361. Further, "[t]he determination of whether the interference is unreasonable should be made in light of the fact that some level of interference is inherent in modern society. There are few, if any, places remaining where an individual may rest assured that he will be able to use and enjoy his property free from all interference. Accordingly, the interference must be substantial to be unreasonable ... Ultimately, the question of reasonableness is whether the interference is beyond that which the plaintiff should bear, under all of the circumstances of the particular case, without being compensated." (Citations omitted.) Id., 361-62.
A court’s finding that the defendants’ actions are reasonable, or unreasonable, will not necessitate a finding that the interference itself constitutes a reasonable, or unreasonable, one, respectively. See Pestey v. Cushman, supra, 259 Conn. 359-60 ("Although similar, [t]he two concepts- unreasonable interference and unreasonable conduct- are not at all identical ... Courts have often found the existence of a nuisance on the basis of unreasonable use when what was meant is that the interference was unreasonable, i.e., it was unreasonable for the defendant to act as he did without paying for the harm that was knowingly inflicted on the plaintiff ... [w]hile an unreasonable use and an unreasonable interference often coexist, the two concepts are not equivalent, and it is possible to prove that a defendant’s use of his property, while reasonable, nonetheless constitutes a common-law private nuisance because it unreasonably interferes with the use of property by another person" [citations omitted; internal quotation marks omitted] ).
Based on the foregoing, to establish common-law nuisance, a party must overcome the high evidentiary threshold for proving a substantial interference. See Simonson v. Ropp, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-11-6008662-S (January 15, 2016, Povodator, J.) (finding that although signs painted on driveway and garbage cans "were intended for the purpose of annoyance/harassment and serve a negligible (if any) purpose[,]" absent substantial interference, the defendants still could not successfully assert counterclaim sounding in common-law nuisance). In Simonson v. Ropp, supra, the court concluded that, pursuant to the standards laid out in Pestey v. Cushman, supra, 259 Conn. 361-62, quoted in Berube v. Nagle, supra, 81 Conn.App. 733, the placement of objects, including speed gates and garbage cans with painted signs, near the defendants’ property and the painting of a sign on the parties’ shared driveway did not rise to the level of "major interferences with the ability to enjoy [the defendants’] property, particularly given the space-time limitations- the direct annoyance is only for the time driving on the driveway between the plaintiffs’ home (where the paved area is widened) and the defendants’ property line ... a distance of approximately 150 feet ... The painted garbage cans and painted roadway are minimally, if at all, visible from the defendants’ home, such that there is no persistent interference with the defendants’ ability to enjoy their home." (Footnote omitted.) Id. Further, in line with the standards established in Pestey v. Cushman, supra, 259 Conn. 361-62, this court has previously found that the extension of a fence, in a neighborhood consisting of small homes on narrow lots, that effectively narrowed a driveway and thereby limited, without barring, access to the premises by commercial trucks, delivery vans, sports utility vehicles and mid-size U-haul trucks, did not amount to an unreasonable interference, rather than a foreseeable inconvenience. See Palladino v. Pellini, supra, Superior Court, Docket No. CV-04-0199821-S.
The plaintiff, Gina Sylvain, testified that, because of the erection of the fence by the defendants, she was concerned about renting her property; getting in and out of her driveway; and that damage to cars might result. The plaintiff also asserted that the removal of a bay window that drivers might hit in attempting to maneuver around the fence would compromise the structural integrity of her house, however she provided no credible evidence to support this claim. Further, neither the plaintiff nor John Trelaor, who has plowed the driveway in the past, have folded in their side mirrors before using the driveway, although taking such action would appear to insure that the vehicles would not hit the bay window or the fence. Also, the plaintiff has not presented convincing evidence to refute that alternative methods for plowing the driveway were possible, even with the fence present.
Michael Paecht testified that he, in his position as the Superintendent of Parks, has done a lot of plowing and that plows of various sizes exist and are used for spaces, such as a police garage where a regular truck plow will not fit. He also testified that he could plow the driveway where the subject fence is located and that he had done so for similar driveways. Paecht testified that to plow the driveway would "be a little tighter now that the fence is there, but I could definitely do it." Trial Tr. 8: 7-9, Dec. 21, 2018. The plaintiff also testified that the city had not notified her that the driveway was too narrow for emergency vehicles.
Thus, the evidence here is similar to the evidence in Palladino v. Pellini, supra, Superior Court, Docket No. CV-04-0199821-S, where this court found the interference did not rise to the level of an unreasonable interference. In Palladino as in the present case, although the narrowing of the driveway made access to the premises difficult, such narrowing did not completely bar vehicles from accessing the premises. Accordingly, the plaintiffs here have not met their burden of showing inconveniences that rise to the level of substantial interferences. Therefore, this court rules in favor of the defendants on count one of the complaint.
B
COUNTS TWO AND THREE MALICIOUS ERECTION OF STRUCTURE GENERAL STATUTES § § 52-480 52-570
General Statutes Section 52-480 provides: "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." General Statutes Section 52-570 provides: "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."
"These statutory sections set forth what are commonly referred to as spite fence actions ... one, § 52-480, for injunctive relief that may be brought by an owner or lessee of adjacent land and the other, § 52-570, for legal damages that may be brought by the proprietor of land ... The elements essential to prove each statutory section are the same." Geiger v. Carey, 170 Conn.App. 459, 486, 154 A.3d 1093 (2017). "The Connecticut progenitor of what have commonly been called the spite fence cases appears to be Whitlock v. Uhle, 75 Conn. 423, 53 A. 891 (1903) ... In [Whitlock], our Supreme Court construed and applied the predecessors to General Statutes § § 52-480 and 52-570 and set forth the elements necessary to state a cause of action under § § 52-480 and 52-570. The court held that the essential elements are: (1) a structure erected on the [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 is useless to the defendant; and (6) the enjoyment of the adjacent landowner’s land is in fact impaired ... The plaintiff bears the burden of demonstrating each of these elements by a fair preponderance of the evidence." (Citations omitted; internal quotation marks omitted.) Errichetti v. Botoff, 185 Conn.App. 119, 125-26, 196 A.3d 1199 (2018).
"Deciding whether a structure has been erected maliciously does not involve a journey deep into the defendant’s heart. Whether a structure was maliciously erected is to be determined rather by its character, location and use than by an inquiry into the actual motive in the mind of the party erecting it." (Internal quotation marks omitted.) Geiger v. Carey, supra, 170 Conn.App. 487. "It is quite possible for a structure to bear on its face ... convincing evidence that it was intended for a legitimate purpose, or that it was intended to injure the adjacent land and its owner ... The intention is not the motive from which it may have sprung, but the established purpose, from whatever motive, to use the land in a manner not justified by its ownership, and forbidden by law ... The intent to injure is determined mainly from the fact that the structure does impair the value of the adjacent land and injure the owner in its use, from the absence of any real usefulness of the structure ... to the defendant, and from the character, location and surroundings of the structure itself ... When a structure, useless to the owner, injuring adjacent land and its owner, intended to work such injury, is wilfully erected, it is maliciously erected; that is, it is erected in knowing disregard of the law and the rights of others ... [O]nce it is established that malice was the primary motive in [the fence’s] erection, the fact that it also served to protect the [defendants’] premises from observation must be regarded as only incidental, since to hold otherwise would be to nullify the statutes." (Citations omitted; internal quotation marks omitted.) Errichetti v. Botoff, 185 Conn.App. 119, 128-29, 196 A.3d 1199 (2018).
Because the plaintiff must prove the existence of maliciousness by a fair preponderance of the evidence; see Errichetti v. Botoff, supra, 185 Conn.App. 125-26; where a defendant advances reasons, other than an intent to injure, for erecting a fence, the trial court may properly accept said reasons in the absence of sufficient evidence demonstrating a deliberate attempt to annoy or injure the plaintiff. See e.g., Berube v. Nagle, 81 Conn.App. 681, 697, 841 A.2d 724 (2004) (upholding trial court decision that plaintiffs failed to establish Section 52-570 violation where one defendant testified that chain-link dog kennel, temporarily placed near plaintiffs’ property line, on flattest property surface, had been so placed to allow wife, who had recently had shoulder surgery, to access it). See also Jackson v. Lee, 51 Conn.Supp. 399, 418, 996 A.2d 762 (App.Sess. 2009), aff’d, 121 Conn.App. 375, 996 A.2d 302 (2010), cert. denied, 297 Conn. 926, 998 A.2d 1194 (2010) (finding that "[the defendant] testified credibly that the fence was erected, in part, to safeguard her children and to separate her dogs from those of the plaintiff. The court finds those reasons to be legitimate and, in the absence of evidence to the contrary, it cannot be said that [the defendant] maliciously erected the fence").
"Uselessness under § 52-480 focuses on whether the structure serves an actual use, not whether the defendants can merely assert a purpose for erecting the structure ... [I]ntent to injure is determined ... [inter alia ] from the absence of any real usefulness of the structure ..." (Citation omitted; internal quotation marks omitted.) Errichetti v. Botoff, supra, 185 Conn.App. 130. In Errichetti v. Botoff, supra, although one of the defendants who erected a fence testified at trial that the fence provided privacy and safety and prevented her children from leaving the property, the fence did not run the entire length of the boundary between two neighboring properties. Id., 131. As a result, children could, in fact, leave the property and the fence did not block the view, from the plaintiff’s property, of the defendants’ house, patio and backyard. Id., 131-32. The court held that, based on the evidence, the lower court’s finding that the fence lacked any real usefulness was not clearly erroneous. Id., 131. In making its decision, the court noted that the trial court had the discretion to reject portions of the defendant’s testimony and to credit the plaintiff’s testimony because, ultimately, it is "for the trial court to weigh the evidence and determine the credibility of witnesses ... A trier of fact is free to reject testimony even if it is uncontradicted ... and is equally free to reject part of the testimony of a witness even if other parts have been found credible." (Internal quotation marks omitted.) Id., 131.
"The use and enjoyment of property may ... be impaired by the intrusion of an unsightly structure into a vista that was formerly unspoiled." Id., 134. Further, even if a fence itself does not have an unpleasant appearance, the court may consider its appearance in the context of the surrounding area. See id., 134 (finding lower court did not commit clear error where it found that fence impaired property enjoyment by plaintiff, who testified about wooded area and wetlands, which he found aesthetically appealing and about said fence that cut through wetlands and stream).
This court has previously addressed a dispute focused on a fence that, because of its placement, made it difficult for vehicles to pass in Palladino v. Pellini, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-04-0199821-S (February 2, 2005, Wilson, J.) In that case, the defendant acquired a permit to extend a fence, which, according to surveys done by both parties, would lie directly on the property line. Id. The extension would narrow the plaintiff’s driveway, such that full-size vehicles, such as pick up trucks and delivery vans would have a difficult time passing by the fence unless their side rear-view mirrors were folded. Id. Further, commercial and construction trucks, as well as emergency vehicles, could access the property by entering from the front, although they could not travel on the driveway with ease. Id. No credible evidence was offered to demonstrate how the extension of the fence would diminish the fair market or rental value of the plaintiff’s property, and the defendant offered the following reasons for the extension: (1) to enclose a swimming pool as required by the City; (2) to protect air conditioning compressor units that had to be located on the easterly side of her house; and (3) to ensure privacy and restrict access to the backyard. Id. In particular, the defendant testified that tenants from her neighbor’s property would freely roam through her backyard and use her pool without permission and leave behind trash. Id. This court, in Palladino v. Pellini, supra, concluded that the plaintiffs failed to provide sufficient evidence to show violations of § § 52-480 and 52-570, or common-law nuisance. Id.
The defendant, Kenneth Paecht testified that he erected the fence at issue along the property line to avoid conflicts and to give protection to his own tenants. The defendant described specific complaints brought by tenants and testified that the fence protects the tenants, their children, and a dog owned by one of the tenants. One of the defendants’ tenants, Edward Marklinsky, testified that, in the absence of the fence, when cars could and did come close to the defendants’ rental house, he "had to stop doing that [walking his dog] because of the cars, you know, my dog is small, you know." Trial Tr. 209: 3-5, Dec. 20, 2018. He also testified that problems with the traffic on the driveway happened both before and after tenants began to rent from the plaintiffs; that he relayed concerns about "getting hit" to one of the defendants; that he did not have concerns about being nearly hit when taking out the trash or walking the dog after tenants started to rent from the plaintiffs "because the fence was already up" at that time; Trial Tr. 213: 2-7, Dec. 20, 2018, Trial Tr. 214: 2-7, Dec. 20, 2018; and that he felt safe with the fence that had been put up by the defendants.
Additionally, another of the defendants’ tenants, Scott Meagher, whose five-year-old son, Mason, visits him three weekends a month and every Tuesday, testified that, prior to the installation of the fence he often had observed cars coming down the driveway at a speed that he thought was too fast:
Q: Did you ever observe cars coming down the driveway at a speed you thought was too fast?
A: Yes.
Q: How frequently would you see that?
A: I don’t know once or twice a week maybe.
Q: Okay. And that was a concern to you?
A: Absolutely.
Trial Tr. 192: 16-22, Dec. 20, 2018.
He also indicated that the installation of the fence had helped alleviate his concerns related to his son’s safety:
Q: Since the installation of the fence by Mr. Paecht have you had any concerns about Mason playing in that area?
A: Not as much, no.
Q: Okay. Have you made any complaints to Mr. Paecht about safety issues since the installation of the fence?
A: No.
Trial Tr.193: 2-8, Dec. 20, 2018.
Further, one of the defendants’ tenants, Christine Wilson, testified that she complained to her landlord about individuals speeding into the driveway and that the fence has prevented the speeding:
Q: Okay. Prior to the installation of the fences in 2017 did you have any complaints to your landlord- landlords about any traffic in the area?
A: Prior to?
Q: Prior to September 2017?
A: I did, you know, I often was concerned about people coming in that driveway faster than they would need to. I mean, you’re going like twenty feet to stop and I don’t understand why you have to plow in there.
A: Okay. Since the installation of the fence have you had the same concerns?
A: No. It certainly has slowed everybody down.
Trial Tr. 204: 7-18, Dec. 20, 2018.
The evidence submitted is similar to the evidence in both Errichetti v. Botoff, supra, 185 Conn.App. 119, and Palladino v. Pellini, supra, Superior Court, Docket No. CV-04-0199821-S, to the extent the defendants, here, are seeking protection in erecting a fence. Additionally, the evidence submitted at trial, like the evidence in Palladino v. Pellini, supra, indicates that certain larger vehicles could, albeit not easily, pass down the plaintiff’s driveway, in spite of the fence and further suggests that larger vehicles, such as snow plows, could get down the driveway if their drivers fold in their side mirrors. Moreover, the defendants’ tenant, Scott Meagher testified:
Q: Okay. Are you familiar with like a Ford 150?
A: Yeah.
Q: Have you ever seen a Ford 150 in there?
A: Yes, I have.
Q: On more than one occasion?
A: Yes.
Q: And that’s since the installation of the fence?
A: Yes.
Q: And they had no trouble getting back there?
A: No.
Trial Tr. 193: 13-27, Dec. 20, 2018, Trial Tr. 194: 1-5, Dec. 20, 2018.
Based on the foregoing, the court finds by preponderance of the evidence, that the structure at issue is not useless to the defendants. The plaintiffs have not met their burden of proof. Accordingly, this court rules in favor of the defendants on counts two and three of the complaint, sounding in violations of § § 52-480 and 52-570.
CONCLUSION
The plaintiffs have failed to prove by a preponderance of the evidence that the fence at issue constituted a useless one or that it substantially interfered with the plaintiffs’ use and enjoyment of their property. For the foregoing reasons, the court enters judgment in favor of the defendants on all counts of the complaint.