Opinion
No. CVH-7187
November 3, 2004
MEMORANDUM OF DECISION
Plaintiffs, proceeding by order to show cause, seek an order enjoining the defendants from depriving them access to property on Day Hill Road, Windsor, Connecticut, in violation of the entry and detainer statute, (C.G.S. Sec. 47a-43).
The facts are as follows: Plaintiff, David R. Wilcox, as the managing member and owner of plaintiff, American Crushing Recycling, LLC, entered into an agreement on January 13, 2004 with defendant, Daniel J. Ferraina under the terms of which Ferraina, as the owner of a parcel of land known as 1045 Day Hill Road, Windsor, granted to Wilcox the "exclusive right and privilege during the term to enter upon the property and engage in the following: (a) to excavate and remove the material from the property for Wilcox's own use, and or, for sale to others; (b) to place upon the property such equipment as is necessary or useful, in the removal, screening, and/or hauling of the material; (c) to screen topsoil on the property; and (d) to fill and grade the north slope on the property with clean fill." The duration of the agreement was from April 15, 2004 until December 31, 2005. The agreement further provided that Wilcox was to pay Ferraina the lump sum of $100,000 for the remaining material to be removed from the property. Canceled checks in that amount were submitted in evidence. The agreement also provided that Wilcox would maintain a minimum of 12,500 cubic yards of topsoil on the property during the term of the agreement, and "[a]t the end of the Term or upon removal of Material to an elevation of 158 feet, whichever comes first, Wilcox shall spread the topsoil so as to provide 4" of cover on the property." After the agreement was signed, plaintiff moved onto the property large equipment such as excavators, trucks and pay loaders, and commenced the operation of bringing topsoil and gravel onto the property and screening the topsoil for sale to others.
On January 10, 2004, the defendant, Thomas DeFranzo, acting on his own behalf and as agent for defendant Ferraina, blocked plaintiffs' entry and departure from the site with two pickup trucks and when Wilcox remonstrated, called the police. A few days later defendant Ferraina built a sand berm across the entrance to the property from Old Iron Ore Road. That road is the only practical entry that the plaintiffs have to the site because it is built to allow the passage of the heavy trucks that plaintiffs use for their operation. Both the parties and the town believed that Old Iron Ore Road was owned by the town, but recently Culbro Tobacco Company claims ownership and has placed "no trespassing" signs on the road. However, Culbro has not prevented the plaintiffs from using the road for their business. There is another access to the site over property of Thrall but Thrall has not given permission for that passage and that way is not capable of sustaining passage by the heavy trucks that the plaintiffs use.
Defendants claim that the plaintiffs have breached the underlying agreement by excavating below a 158 ft. elevation. However, breach of the agreement is irrelevant to the issue whether or not the entry and detainer statute has been violated. Even a trespasser can prevail in a violation of the forcible entry and detainer statute. Orentlicherman v. Matarese, 99 Conn. 122, 126 (1923).
That statute, §§ 47a-43 and 47a-45a, in essence provides that when a person makes forcible entry onto land and with a strong hand detains the same, the court, upon making such a finding, shall render judgment that the complainant be restored and reseized of the premises.
The two critical issues are whether or not the plaintiff has "possession" and has been forcibly removed, within the meaning of Section 47a-43.
The action for forcible entry and detainer is a creature of statute. Harborville Building Corporation v. Baron, 10 Conn. Supp. 100, 101 (1941). A plaintiff, suing under that statute, "must prove his actual possession of the land or property from which he claims to have been dispossessed." Communiter Break Co. v. Scinto, 196 Conn. 390, 393 (1985). The test is "whether the individual has exercised the dominion and control that owners of like property usually exercise. (Citations omitted). Though the defendant argues otherwise, it is not necessary that there be a continuous personal presence on the land by the person maintaining the action. There, however, must be exercise of at least some actual physical control, with the intent and apparent purpose of asserting dominion." Id., at 394.
Our Appellate Court has had two occasions to construe the Communiter Break standard as to the level of dominion necessary to establish possession under Sec. 47a-43. In Catropa v. Bargas, 17 App. 285, cert. denied 210 Conn. 811 (1989), the Appellate Court held that a golf pro at a country club who was denied access to the pro shop did not exercise dominion and control over the property under the Communiter Break standard. Likewise, in Murphy Inc. v. Remodeling Etc., Inc., 62 Conn. App. 517 (2001), where the plaintiff leased signs located on the building owned by the defendant, and defendant denied plaintiff access for plaintiff to service the signs, the court held that plaintiff failed to show possession within the meaning of Sec. 47a-43, because there was no evidence that the plaintiff exhibited any physical control over the premises.
In Statewide Parking Services, Inc. v. The City of Hartford, 16 Conn. L. Rptr. 360 (1996) appeal dismissed 244 Conn. 595 (1998), plaintiff had an agreement with the May Department Stores Co., to manage the former G. Fox parking garage in Hartford. The garage was subsequently acquired by the city which notified the plaintiff that the management agreement would not be renewed. After the agreement expired, the plaintiff refused to vacate, prompting the city to remove the plaintiff's employees with uniformed police officers. The court determined that despite the fact that plaintiff had no legal claim to remain on the property, it had possession of the premises and that entitled it to invoke the protection of 47a-43.
In the instant case the facts are clear that plaintiff had a presence on the property pursuant to the agreement between the parties. Plaintiffs had their equipment on the property and were engaged in the business of removing sand and conducting the business of cleaning topsoil. Clearly it met the standard of possession required by Sec. 47a-43.
As for the requirement of force and a strong hand detaining the plaintiff from entering on the property, as required by Sec. 47a-43, our courts have repeatedly held that changing the locks on the premises ( Haskins v. Brown, CDH 5988, Judicial District of Hartford, Housing Session at Hartford, (Tanzer, J., June 23, 2003); ( Thomas v. Lenhardt, 38 Conn. Supp. 1 (1982); or padlocking the door ( Berlingo v. Sterling House, Inc., 203 Conn. 103, 109 (1987)) met that requirement of the statute.
In Orentlicherman v. Matarese, 99 Conn. 122, 126 (1923), our Supreme Court set forth the reasons why the law cannot suffer a forcible entry upon a peaceable possession as follows; first, because by making such an entry, the defendant becomes the judge in his own cause and allows him to enforce his own judgment; and second, because the other party must have an equal right to judge his own cause and employ force, there is created the risk of a breach of public peace.
In the instant case the facts are that the defendant, DeFranzo, blocked plaintiff's entry and exit by the use of his trucks and when there was a threatened physical confrontation, called the police; and defendant, Ferraina constructed a sand berm across the only practical access the plaintiff had to the property. These acts were sufficient to constitute force and strong hand within the meaning of the statute.
As a consequence of the foregoing, the Court enters an injunction prohibiting the defendants from blocking plaintiffs' entry or exit from the subject site.
Robert Satter, JTR