Elizabeth Hardie v. Avi Mistriel et al. (2011)

MEMORANDUM OF DECISION

The plaintiff, Elizabeth Hardie, commenced this action in four counts:  trespass, conversion, negligence and recklessness against the defendants, Avi Mistriel and Beth Mistriel, by summons and complaint dated July 29, 2009.   The defendants moved to strike the fourth count sounding in recklessness which the court, Marano, J., granted on January 4, 2010.   The defendants thereafter filed an answer and the matter was claimed to a court trial.   This matter went to trial on January 25, 2011.

The court makes the following findings.   The plaintiff, Elizabeth Hardie, is the owner of 50 Post Road a/k/a Old Boston Post Road, Danbury at which she has resided since 2004.   The property is a quadrilateral having roughly ninety feet of frontage on the westerly side of Post Road and a depth of approximately one hundred seventy feet on its southerly boundary and one hundred eighty-five feet on its northerly boundary.   The property is improved with a single-family dwelling.   The property slopes steeply downward, as much as forty-five degrees in places, to the south where it borders property owned by the defendants, Avi Mistriel and Beth Mistriel, and known as 46 Post Road a/k/a Old Boston Post Road, Danbury.

During the late summer and early fall of 2007, the Mistriels were engaged in building a home on their property.   On August 27, 2007, Avi Mistriel, together with a group of workmen, were clearing trees and brush on his property when he crossed the boundary line onto Hardie's property and cut down and removed eight trees, as well as a ninth tree located squarely on the property line.   The trees were located just over and along the length of the boundary line for a distance of fifty feet, some as deep as ten feet into Hardie's property.   Mistriel removed the following trees by size and species:  one thirty-inch hemlock, two eighteen-inch hemlocks, one twenty-inch hemlock, one six-inch hemlock, one six-inch twin hemlock, one fourteen-inch birch and one four-inch birch.   Most of the trees were from thirty to forty feet in height, with the tallest up to sixty feet in height.   Although not specimen quality trees, all of the trees had green growth and appeared healthy.   The thirty-inch diameter hemlock apparently was hollow but appeared otherwise healthy.   As forest quality trees all, though thin toward their base, had substantial foliage at their crowns.   As such, the trees, even though they were located substantially downslope of the immediate area of Hardie's house, provided shade for her backyard as well as screening and privacy for the line of sight from Hardie's house to the Mistriels' house.   The trees also provided a certain aesthetic appeal for Hardie.   With the trees removed Hardie's backyard now lay entirely exposed and in full sunlight.   Hardie now had a full view directly down onto the house and yard of the Mistriels, and they had a direct view of her house.   In fact, when Hardie's housemate, Tammy Wood, paid a visit to Mistriel shortly after the trees had been cut down to discuss the matter with them, Avi Mistriel made a crude joke about now being able to “see into your bedroom window.”   Mistriel, for his part, does not dispute that he cut the trees but asserts that he did so unintentionally with the belief that the trees were on his side of the boundary line.   He told the court that he cut the trees because they were close to the location of his proposed septic system and he wanted to avoid problems with the tree roots.   The court finds that Mistriel entered upon Hardie's property intending to cut and remove the trees under the mistaken belief that they were located on his own land.   There was no evidence that Beth Mistriel had any part in crossing onto Hardie's property or cutting the trees.

Although the second count of Hardie's complaint sounds in conversion and an item in her prayer for relief requests damages pursuant to General Statutes § 52-560, she introduced no evidence as to the value of the trees removed.   Rather, she seeks damages for the cost of restoring what she has lost in terms of privacy and aesthetics.  “[T]he proper measure of damages is either the market value of the tree, once it is severed from the soil, or the diminution in the market value of the [plaintiffs'] real property caused by the cutting.”  Canton Village Construction, Inc. v. Huntington, 8 Conn.App. 144, 147, 510 A.2d 1377 (1986);  Palmieri v. Cirino, 90 Conn.App. 841, 850, 880 A.2d 172 (2005).   Our Supreme Court stated:  “If the purpose of the action is only to recover the value of the trees as chattels, after severance from the soil, the rule of damages is the market value of the trees for timber or fuel.   For the injury resulting to the land from the destruction of trees which, as a part of the land, have a peculiar value as shade or ornamental trees, a different rule of damages obtains, namely, the reduction in the pecuniary value of the land occasioned by the act complained of ․” Ventres v. Goodspeed Airport, 275 Conn. 105, 159, 881 A.2d 937 (2005);  Stanley v. Lincoln, 75 Conn.App. 781, 785, 818 A.2d 783 (2003).   See also Dumas v. Harper, Superior Court, judicial district of Litchfield, Docket No. CV 05 5000111 (February 6, 2008, Gallagher, J.) (44 Conn. L. Rptr. 781).

In an effort to ascertain the landscape work and the associated cost necessary to restore some aesthetic quality to the disturbed area and some future expectation of privacy, Hardie engaged the services of Grant Putnam, landscape designer and contractor, of Putnam's Landscaping, LLC. In February 2010, Putnam inspected the site with Hardie.   At that time he was able to observe the scene, including the stumps of the cut trees and the topography of the land.   Hardie indicated to Putnam that she wished to “enhance the aesthetic element” of that portion of the property as well as provide landscaping that would eventually provide at least the same degree of shade and privacy as the original trees.   Putnam proposed a landscaping plan that provided for seven trees in any combination of Norway Spruce, Colorado Spruce or Concolor Fir 7, each twelve to fourteen feet tall and each planted within a ten-foot diameter half circle masonry wall, approximately fifteen feet long and three feet in height at its tallest point.   The cost for the seven semicircular masonry wails including topsoil and stone would total $8,820, the cost of the seven trees $11,200 and irrigation setup with timer $700, for a total cost of $20,720.   Putnam testified as to the details of the proposal at the trial and stated that the masonry walls were not merely aesthetic but necessary to stabilize the root balls of the trees on such a steep slope.   Further, he indicated that the locations of the trees would be on the slope at the discretion of Hardie.

Mistriel contends that Hardie has failed to prove damages because she has failed to either introduce evidence as to the value of the trees removed as timber or as fuel, or appraisal evidence as to the diminution in value of the real estate.   Hardie seeks damages to be awarded based on the reduction in the pecuniary value of the land occasioned by Mistriel's actions.   In Martel v. Powadiuk, Superior Court, judicial district of Middlesex, Docket No. CV 06 5001190 (March 8, 2007, McWeeny, J.), Judge McWeeny found that “[t]he diminution in value of plaintiff's property was based on the costs of removing the severed trees, grinding and removing the stumps, and replacing the trees [, and that] the diminution is fairly ascertained by the cost of clearing up the property and in screening the area with new trees.”   The court finds that this case, like Martel, involves a diminution in value to the plaintiff's property which may be measured by the cost of clean-up and screening the area with new trees.   Contrary to Mistriel's assertion, it is not necessary to engage a real estate appraiser to calculate this cost.   The court finds Hardie's landscape designer, Putnam, qualified to do so.   The court finds, however, that the Putnam proposal goes well beyond the goal of cleanup and screening.   The court can accept Putnam's proposal for seven trees at a cost of $11,200, but clearly the cost of masonry walls goes beyond cleanup and screening.   As to Putnam's insistence that the walls were necessary for the root balls on such a steep slope, the court notes that the trees removed were not on the steepest part of the slope but rather along the boundary line where the slope begins to level off.

The court finds that the diminution in Hardie's property value caused by Mistriel's trespass and cutting of eight of Hardie's trees is fairly ascertained by the cost of cleaning up the property and in screening the area with seven new trees.   For the foregoing reasons, the court enters judgment on the first count of the plaintiff's complaint in favor of the plaintiff in the amount of $11,200 against the defendant, Avi Mistriel.   Further, the court awards as costs the fees of the following plaintiff's expert witnesses who testified at trial:  Paul Fagan, R.L.S. $645 and Grant Putnam, landscape designer and contractor $750.

Michael G. Maronich, Judge

Maronich, Michael G., J.