DeCecco v. Beach
| Decision Date | 06 December 1977 |
| Citation | 381 A.2d 543,174 Conn. 29 |
| Court | Connecticut Supreme Court |
| Parties | Dominick DeCECCO et al. v. Margerie W. BEACH. |
Robert M. Davidson, Westport, with whom was Alan R. Spirer, Westport, for appellant (defendant).
James G. Verrillo, Trumbull, for appellee (plaintiff Ann Zeisler).
Before HOUSE, C. J., and COTTER, LOISELLE, BOGDANSKI and LONGO, JJ.
The plaintiff, Ann Zeisler, 1 a property owner in the town of Westport, brought this action against the defendant, an abutting landowner, pursuant to §§ 52-480 and 52-570 of the General Statutes, 2 claiming damages and a temporary and permanent injunction against the continued existence of a fence and compelling its removal. Both parcels of land border the west branch of the Saugatuck River, and the plaintiff's house is situated upon her property so as to maximize the river view. The present dispute between the parties arose when the defendant constructed a ten-foot-high stockade-style fence on her property along the common boundary with the plaintiff's land, which structure followed the contour of the property forming an angle directly in front of the plaintiff's home. The ten-foot fence, which borders the plaintiff's property for sixty-three feet, is built in fourteen sections of six feet each and extends to approximately two feet short of the river. The defendant does not challenge the trial court's findings of fact including the facts that the fence is unsightly and objectionable because it is ten feet high, with vertical and horizontal supports facing the plaintiff's property; that the plaintiff has a view of the river adjacent to her property on one side but no view of the river on the other side because of the last four sections of the fence closest to the river; and that, even without the existence of the last fifteen feet of the fence, the defendant would find it impossible to see the plaintiff's home. The trial court also found, which the defendant does not dispute, that the last four sections of the fence are particularly objectionable and unsightly to the plaintiff, and that the defendant admits that the last two sections of fence are unnecessary to ensure her privacy.
The trial court concluded that the last four sections of the fence, constituting twenty-four feet, which go to the river's edge blocking the plaintiff's view of the river, were not needed to ensure the defendant's privacy, which was only incidental to the wrong committed; that those sections of the fence have no use to the defendant under the statutes; that the defendant, owing to the foregoing and owing to the physical properties of the fence, demonstrated an intention to injure the plaintiff in the enjoyment of her land; that aside from the actual motive in the mind of the defendant, this portion of the fence was erected maliciously having regard to its character, location and use; and that the plaintiff has shown all the elements necessary to establish a violation of the statutes. See Whitlock v. Uhle, 75 Conn. 423, 53 A. 891; 1 Am.Jur.2d, Adjoining Landowners, § 111.
The court ordered the defendant to remove the last four sections (approximately twenty-four feet) of the fence and enjoined her from building any further structures on this same section of land.
On the basis of the foregoing facts, the trial court might properly reach the legal conclusion that the fence was maliciously erected with intent to injure the plaintiff in the enjoyment of her land thereby causing an impairment of the value of adjacent land, and that the defendant erected the structure with the intent to injure the plaintiff in the use and enjoyment of her land because that portion of the fence was not constructed as it ought to have been for the purpose of privacy as claimed by the defendant. Whitlock v. Uhle, supra, 426, 53 A. 891; Harbison v. White, 46 Conn. 106, 108. 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. Whitlock v. Uhle, supra, 75 Conn. 427, 53 A. 892. Ibid. 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, or a portion of it in the present case, to the defendant, and from the character, location and surroundings of the structure itself; and, once it is established that malice was the primary motive in its erection, the fact that it also served to protect the defendant's premises from observation must be regarded as only incidental, since to hold otherwise would be to nullify the statutes. Harbison v. White, supra, 109; see 5 Powell, Real Property § 696, p. 280 (1949 Ed., 1977 Rev.).
The plaintiff was entitled to an injunction for the removal of the last four sections of the fence closest to the river, under the statute providing for the removal of any structure erected by a landowner with malicious intent to injure the owner or lessee of the adjoining property. Under a proper finding of facts, based upon the evidence presented, including an on-site view of the premises, the trial court was justified in concluding that the defendant acted from malicious motives, with a design to injure the plaintiff unnecessarily in the use and enjoyment of her property. Scott v. Wilson, 82 Conn. 289, 291, 73 A. 781, citing Whitlock v. Uhle, supra.
The defendant has also assigned as error the trial court's refusal to find certain facts, the alleged creation of an unlawful visual easement, the court's failure to consider the defense of the "clean hands doctrine," and the scope of the injunctive relief granted to the plaintiff.
Corrections to the finding which the defendant seeks to add would not directly affect the ultimate facts upon which the judgment depends and no useful purpose would therefore be served by adding those facts to the finding. State v. White, 169 Conn. 223, 242, 363 A.2d 143; Collens v. New Canaan Water Co., 155 Conn. 477, 481, 234 A.2d 825. Other facts which the defendant asks us to include in the finding cannot be added since they are neither admitted nor undisputed. Practice Book § 628.
We cannot conclude as the defendant suggests that the judgment in favor of the plaintiff creates an...
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... ... See, e.g., Bozzi v. Bozzi, 177 Conn. 232, 241-42, 413 A.2d 834 (1979); DeCecco v. Beach, 174 Conn. 29, 34-35, 381 A.2d 543 (1977); Novella v. Hartford Accident & Indemnity Co., 163 Conn. 552, 561-65, 316 A.2d 394 (1972); ... ...
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...v. Orcutt, 257 Conn. 301, 308, 777 A.2d 670 (2001); Eldridge v. Eldridge, 244 Conn. 523, 536, 710 A.2d 757 (1998); DeCecco v. Beach, 174 Conn. 29, 34, 381 A.2d 543 (1977). The defendants sought a legal remedy in the form of money damages for their breach of contract counterclaim. Second, th......
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