Fabbri v. Regis Forcier, Inc., 73-231-A

• Decision Date: 20 January 1975
• Docket Number: No. 73-231-A,73-231-A
• Citation: 114 R.I. 207,330 A.2d 807
• Parties: Anthony FABBRI et al. v. REGIS FORCIER, INC., et al. ppeal.
• Court: Rhode Island Supreme Court

Page 807

330 A.2d 807

114 R.I. 207

Anthony FABBRI et al. v. REGIS FORCIER, INC., et al.

No. 73-231-Appeal.

Supreme Court of Rhode Island.

Jan. 20, 1975.

[114 R.I. 211] Marion J. Dillon, Erancis J. Maguire, Providence, for plaintiffs.

Nolan & Dailey, Leo J. Dailey, Coventry, for defendants.

OPINION

DORIS, Justice.

This is a civil action in which the plaintiffs seek to compel the defendants, adjoining landowners, to erect a retaining wall to prevent the defendants' land from eroding onto the plaintiffs' land, and also to compel the defendants to remove from their land a tree alleged to be in an unsafe condition and to be a danger to the plaintiffs.

The cause was tried to a Superior Court justice sitting without a jury who granted the relief sought in the complaint. From that judgment, defendants now appeal. The record indicates that plaintiffs, husband and wife, purchased property located on Cove Road in the town of Coventry from defendants who are engaged in the business of land development and home construction. The defendants presently own property which is located to the rear of and immediately adjoining plaintiffs' premises. This property is at a higher elevation than plaintiffs' property and slopes steeply down to it.

Anthony Fabbri testified that defendants dug out the hill behind his property in order to landscape what is now his lot, that defendants did not loam or seed the slope of the hill, and that rocks, stones, water and debris have washed from defendants' property onto plaintiffs' property. Mr. Fabbri stated that he has over the years dug a trench, erected a cyclone fence, erected a picket fence, and built a railroad tie wall, all in an attempt to prevent the rocks, stones and water from coming upon his premises. He stated that this efforts were unsuccessful, and that the debris and water continues to accumulate on his land. Mr. Fabbri further testified that in his remedial activities he never touched the hill itself as it is on defendants' property.

Mr. Fabbri also testified that a large tree located on defendants' property but overlooking plaintiffs' property, was in a dangerous condition in that its roots had become exposed because of the erosion of the slope.

Linda Fabbri, one of the plaintiffs, testified that defendants developed the land in controversy, and that no one else ever intentionally scraped the hillside adjacent to plaintiffs' property.

Viola E. DiCarlo, a neighbor of plaintiffs, testified that an employee of defendant used a bulldozer while landscaping the hillside.

The trial justice in his decision specifically found that the tree complained of constituted a continuing danger to plaintiffs' premises, and that the danger was caused by the actions of defendants in scraping the hillside which allowed erosion to expose the roots of the tree.

The defendants contest the trial justice's finding on two grounds: first, that there is no evidence of the tree's unsoundness, and second, that the tree was not planted by defendants.

It is well settled that where parties submit their case to a trial justice sitting without a jury, his findings are to be accorded great weight and will not be disturbed on appeal unless clearly wrong, that is, unless the trial justice either overlooked or misconceived some relevant and material evidence on a controlling issue. McConnell v. Golden, 104 R.I. 657 at 661, 247 A.2d 909 at 910-911 (1968).

Here plaintiffs testified as to the dangerous condition of the tree's roots, and in the absence of any evidence to the contrary we cannot fault the trial justice for concluding that the tree...