Michael Haines et al. v. Town of Groton (2012)

MEMORANDUM OF DECISION RE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (# 120)

The defendant, Town of Groton (“Groton”) has filed a motion for summary judgment together with a memorandum of law and exhibits on November 30, 2011 seeking the striking of all counts of the plaintiffs' Amended Complaint (# 106).   The plaintiffs, after an extension of time, filed an objection to summary judgment on February 10, 2012, and affidavits on February 22, 2012.   The defendant filed a reply memorandum of law on March 20, 2012.   A short calendar argument was heard by the court on March 26, 2012.

BACKGROUND

The case arises from a dispute concerning the Town's operation of hiking trails on land known as the “Copp Property,” a 240–acre parcel that abuts two parcels of land:  one parcel in the amount of 7.67 acres owned by the plaintiffs Michael and Linda Haines and another parcel of 10 acres owned by the plaintiff Bouthanom Senphansiry (“Plaintiffs”).   The plaintiffs allege that the Town extended its hiking trails and in so doing cut down shrubs and trees (primarily mountain laurel),¹ creating hiking trails on both parcels owned by the plaintiffs.   The plaintiffs further allege that the Town marked and cleared these trails resulting in damage to their property.

Plaintiffs' Amended Complaint of December 15, 2009 includes eight counts:  the first two claiming inverse condemnation for each parcel damaged, Counts Three and Four based on trespass, Counts Five and Six sounding in nuisance and Counts Seven and Eight claim a violation of Connecticut General Statutes § 52–560.

SUMMARY JUDGMENT LAW

“Practice Book § 17–49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.   In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.”  (Internal quotation marks omitted.)  Sherman v. Ronco, 294 Conn. 548, 553–54, 985 A.2d 1042 (2010).

“In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist.”  Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988).  “In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact.   The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law.   The courts hold the movant to a strict standard.   To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact ․ As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent ․ When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue ․ Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue ․ It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue.   Mere assertions of fact ․ are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17–45].”  (Internal quotation marks omitted.)   Zielinski v. Kotsoris, 279 Conn. 312, 318–19, 901 A.2d 1207 (2006).

ANALYSIS

The defendant contends that there is no genuine issue or material fact in dispute in the present controversy and, therefore, it is entitled to summary judgment on all counts as a matter of law.   The defendant has filed transcript pages and affidavits of witnesses contending that there were a vast network of trails on the Copp Property since the late 1970s to early 1980s.   The defendant provided deposition transcripts contending that the trails on the Copp Property were not cut by town employees from 2000–2011 and that they must have been cut by members of the public after 2000.   The defendants admit that prior to the commencement of this action there were no clear boundary lines between the plaintiffs' property and the Copp Property;  i.e., there were no clear boundary lines designating where the town property ends and the plaintiffs' property begins.   The defendants contend that there were trails on the plaintiffs' property for many years and sometime within the last ten years have become more defined.   The defendant further claims that an intern working for the Town “blazed” or marked trails with spray denying that there were any tree cuttings in April of 2006.

The plaintiff, in response to the motion for summary judgment, submitted affidavits from the plaintiffs indicating that the plaintiffs did not notice trails on their property prior to purchase;  the trails commence on the Town's property and continue on to theirs;  the same signage exists upon the Town's property as does upon their own property;  the paint hash marks on the trees along the trails on the Town property is identical in marking (color and paint) on their property based upon a paint analysis performed;  and that the trails commence on Town property and continue directly on to their property.   The plaintiffs, however, admit that they never saw anyone from the Town on their property or cutting trees and/or laurel thereon.

The court will utilize the above assertions of evidence in its analysis as to whether there is a material issue of fact in each of the four sets of claims raised by the plaintiffs in their amended complaint.

A. Inverse Condemnation Claims

“Inverse condemnation is a cause of action against a governmental defendant to recover the value of property which has been taken in fact by the governmental defendant ․ An inverse condemnation claim accrues when the purpose of government regulation and its economic effect on the property owner render the regulation substantially equivalent to an eminent domain proceeding ․” (Citations omitted, internal quotation marks omitted.)  Cumberland Farms, Inc. v. Groton, 262 Conn. 45, 73 (2002).  “The word taken in article first, § 11 of our state constitution means the exclusion of the owner from his private use and possession, and the assumption of the use and possession for the public purpose by the authority exercising the right of eminent domain ․ Although property may be taken without any actual appropriation or physical intrusion ․ there is no taking in a constitutional sense unless the property cannot be utilized for any reasonable and proper purpose ․ as where the economic utilization of the land is, for all practical purposes, destroyed.”   (Citations omitted, internal quotation marks omitted.)  Tamm v. Burns, 222 Conn. 280, 284 (1992).  “A constitutional taking occurs when there is a substantial interference with private property which destroys or nullifies its value or by which the owner's right to its use or enjoyment is in a substantial degree abridged or destroyed.”  (Internal quotation marks omitted.)  Id.

Connecticut law on inverse condemnation requires total destruction of a property's economic value or substantial destruction of an owner's ability to use or enjoy the property.  Bristol v. Tilcon Minerals, Inc., 284 Conn. 55, 85 (2007) (citing Tamm v. Burns, supra, 222 Conn. at 284;  Wright v. Shugrue, 178 Conn. 710, 713–15 (1979) (taking of only means of access to first parcel constituted inverse condemnation, but partial taking of second parcel did not have similar result because property still could be used in natural state or for residential development).

Here, plaintiffs' inverse condemnation claims fail whether or not they prove that the Town is responsible for the “extended” trails on their property.   The plaintiffs' claims nonetheless fail because they cannot show a total destruction of their properties' economic value.   There is simply no claim that the alleged extension of trails on to the plaintiffs' property result in a total destruction of the properties' value.   The Haines have been building a road on their property during the past two years in furtherance of their plan to build a house on the otherwise undeveloped land.   Mr. Conroy continues to hunt on his property and has cleared the land for a potential ginseng business opportunity.

Consequently, their inverse condemnation claims must fail because there has been no substantial interference with the property, the value has not been nullified and their right to the use and enjoyment has not been substantially abridged in a constitutional sense.

B. Trespass Claims

To state a claim for trespass, plaintiffs must allege that the Town intentionally caused some substance or thing to enter upon the plaintiffs' land.  Bristol v. Tilcon Minerals, Inc., supra, 284 Conn. 87–88.  “An intrusion on the land of another as a result of negligence is not a trespass.”   Vaillancourt v. Southington, Superior Court, complex litigation docket at New Britain, Docket No. X03 CV01 0510816 (May 7, 2002, Aurigemma, J.) (32 Conn. L. Rptr. 191, 195).  “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.   Avery v. Spicer, 90 Conn. 576, 579 (1916);  75 Am.Jur.2d, Trespass §§ 3, 8, 14, 25, 35 (1991).”  (Internal quotation marks omitted.)  Bristol v. Tilcon Minerals, Inc., supra, 284 Conn. 87.

This court concludes that the assertions set forth in the affidavits submitted by the plaintiff propound inferences of fact matters left to the trier of fact to determine whether or not the Town trespassed on the subject property and created or extended the trails in question.   An “[i]ssue of fact not only encompasses evidentiary facts in issue, but also questions as to how the trier would characterize such evidentiary facts and what inferences and conclusions it would draw from them.”  (Internal quotation marks omitted.)  United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 379 (1969).

As to the issue of the statute of limitations expiration claim, this court further concludes that the statute has not run.   The applicable statute of limitations for a trespass claim is General Statutes § 52–577.  General Statutes § 52–577 provides:  “No action founded upon a tort shall be brought but within three years form the date of the act or omission complained of.”   “[Section] 52–577 is a statute of repose in that it sets a fixed limit after which the tortfeasor will not be held liable and in some cases will serve to bar an action before it accrues ․ Nonetheless, [w]hen the wrong sued upon consists of a continuing course of conduct, the statute does not begin to run until that course of conduct is completed.”  (Internal quotation marks omitted.)  Lee v. Brenner, Saltzman & Waltzman, LLP, 128 Conn.App. 250, 257, 15 A.3d 1215, cert. denied, 301 Conn. 926, 22 A.3d 1277 (2011).  “[I]n order [t]o support a finding of a continuing course of conduct that may toll the statute of limitations there must be evidence of the breach of a duty that remained in existence after commission of the original wrong related thereto.   That duty must not have terminated prior to commencement of the period allowed for bringing an action for such a wrong ․ Where [our Supreme Court has] upheld a finding that a duty continued to exist after the cessation of the act or omission relied upon, there has been evidence of either a special relationship between the parties giving rise to such a continuing duty or some later wrongful conduct of a defendant related to the prior act ․ The continuing course of conduct doctrine is conspicuously fact-bound.”  (Internal quotation marks omitted.)  Jarvis v. Lieder, 117 Conn.App. 129, 148 (2009).

“The question of whether a party's claim is barred by the statute of limitations is a question of law ․ The issue, however, of whether a party engaged in a continuing course of conduct that tolled the running of the statute of limitations is a mixed question of law and fact.”  Giuletti v. Giuletti, 65 Conn.App. 813, 833, cert. denied, 258 Conn. 946, 788 A.2d 95 (2001).   For this reason, many courts have concluded that “whether the defendants have engaged in a continuing course of conduct is ․ a question of fact not appropriate for determination on a motion for summary judgment.”   Corbett v. Petrillo, Superior Court, judicial district of New Haven, Docket No. CV 06 5005440 (February 29, 2008, Skolnick, J.T.R.);   see also Evans v. Province, Superior Court, judicial district of New Haven, Docket No. CV 07 600855 (August 4, 2008, Zoarski, J.T.R.);   Lee v. BSB Greenwich Mortgage, LP, Superior Court, complex litigation docket at Stamford–Norwalk at Stamford, Docket No. CV 04 0200344 (August 31, 2007, Jennings, J.);   Eastham v. Garden State Life Ins. Co., Superior Court, judicial district of New Haven, Docket No. CV 05 4011444 (June 7, 2007, Jones, J.);   Maderia v. Northeast Utilities Service Co., Superior Court, complex litigation docket at Middlesex, Docket No. CV 00 0103499 (November 17, 2004, Quinn, J.) (38 Conn. L. Rptr. 286).

In the present case, the plaintiffs claim that the trespass on their property is ongoing as a result of the defendant's continued maintenance of the trails, and invitation to the public to utilize the trails.   In light of the foregoing case law and the parties' submitted evidence, there exists a genuine issue of material fact regarding whether the defendant engaged in some later wrongful conduct related to the prior act, thereby tolling the statute of limitations for the plaintiffs' trespass claims pursuant to the continuing course of conduct doctrine.   Accordingly, the defendant's motion for summary judgment fails with respect to Counts Three and Four of the plaintiffs' Amended Complaint.

C. Nuisance Claims

The issue of whether the positive actions of the Town, as raised in the affidavits, also leaves all reasonable inferences drawn from the evidence left to the trier of fact.  “A plaintiff must prove four elements to succeed in a nuisance cause of action:  “(1) the condition complained of had a natural tendency to create danger and inflict injury upon person or property;  (2) the danger 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 plaintiffs' injuries and damages.”  Walsh v. Stonington Water Pollution Control Authority, 250 Conn. 443, 449 n.4 (1999) (quoting Filisko v. Bridgeport Hydraulic Co., 176 Conn. 33, 35–36 (1978);  Pestey v. Cushman, 259 Conn. 345, 355–56 (2002).  “Despite its grounding in public nuisance law, this four factor analysis has since been applied without distinction to both public and private nuisance causes of action.”  Pestey v. Cushman, supra, 259 Conn. 356.   It is also well established that in a nuisance claim against a municipality the plaintiff must show that the condition alleged to be the nuisance was “created by some positive act of the municipality.”  (Internal quotation marks omitted.)  Keeney v. Old Saybrook, 237 Conn. 135, 164 (1996).

To recover damages in a common-law private nuisance cause of action, the 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 property.   The trier of fact must take into consideration many factors in determining whether the actions of the defendant are an unreasonable interference with the plaintiff's use, without being compensated.   These issues should be left to the trier of fact to decide.

D. Plaintiffs' Claim Under Connecticut General Statutes § 52–60.

Counts Seven and Eight of the plaintiffs' Amended Complaint are entitled, “Violation of § 52–560 of the Connecticut General Statutes.” ²  Amended Complaint, Counts Seven and Eight.   In their damage claim, plaintiffs seek, inter alia:

5 ․ the recovery of the value of the trees removed as alleged in plaintiffs' claims pursuant to § 52–560 of the Connecticut General Statutes;  and/or

6 ․ the recovery of damages for the diminution in value of the real estate which occurred from the cutting as alleged in plaintiffs' claims pursuant to § 52–560 of the Connecticut General Statutes;  and

7.  Treble damages pursuant (sic) C.G.S. § 52–560

Amended Complaint.

Pursuant to General Statutes 52–560:

Any person who cuts, destroys or carries away any trees, timber or shrubbery, standing or lying on the land of another ․ without license of the owner ․ shall pay to the injured party ․ three times the reasonable value of any other tree, timber or shrubbery.

General Statutes § 52–560.

In cases where the purpose of the action is to recover “for the injury resulting to the land from the destruction of trees which, as 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.”  (Internal quotation marks omitted.)  Caciopoli v. Lebowitz, 131 Conn.App. 306, 312 (2011) (citing Eldridge v. Gorman, 77 Conn. 699, 701 (1905);  Canton Village Construction, Inc. v. Huntington, 8 Conn.App. 144, 147 (1986);  Stanley v. Lincoln, 75 Conn.App. 781, 787 (2003) (“the proper measure of damages, therefore, is either the market value of the trees, once they are severed from the soil, or the diminution in the market value of the real property caused by the cutting”).

For reasons stated above, whether the plaintiffs are entitled to damages based upon these statutory claims and the proper measure therefore shall be left for the determination of the trier of fact.

ORDER

The defendant's motion for summary judgment (# 120) is hereby granted as to Counts One and Two of the plaintiffs' Amended Complaint (# 106) and is denied as to Counts Three through Eight.

Devine, J.

FOOTNOTES

FN1. Mountain laurel is an American evergreen shrub (Kalmia latifolia) with glossy leaves and umbels of rose colored white flowers.   Webster's Ninth New Collegiate Dictionary, 775 (9th Ed.1986).   The shrub ranges from approximately seven to fifteen feet and is Connecticut's state flower..  FN1. Mountain laurel is an American evergreen shrub (Kalmia latifolia) with glossy leaves and umbels of rose colored white flowers.   Webster's Ninth New Collegiate Dictionary, 775 (9th Ed.1986).   The shrub ranges from approximately seven to fifteen feet and is Connecticut's state flower.

FN2. This statute, known as the tree-cutting statute, “does not give rise to a new and independent cause of action, but prescribes the measure of damages in cases where compensatory damages would, in the absence of the statute, be recoverable.”  (Internal quotation marks omitted.)  Stanley v. Lincoln, 75 Conn.App. 781 (2003)..  FN2. This statute, known as the tree-cutting statute, “does not give rise to a new and independent cause of action, but prescribes the measure of damages in cases where compensatory damages would, in the absence of the statute, be recoverable.”  (Internal quotation marks omitted.)  Stanley v. Lincoln, 75 Conn.App. 781 (2003).

Devine, James J., J.