Fitzgerald v. Merard Holding Co. Inc.
| Decision Date | 25 July 1927 |
| Citation | 106 Conn. 475,138 A. 483 |
| Court | Connecticut Supreme Court |
| Parties | FITZGERALD v. MERARD HOLDING CO. INC., ET AL. |
Appeal from Superior Court, Fairfield County; John W. Banks and Edwin C. Dickenson, Judges.
Suit by Margaret Cook Fitzgerald against the Merard Holding Company Inc., and others, for an injunction, brought to the superior court. Judgment for defendants for costs on the sustaining of a demurrer to the complaint and plaintiff's failure to file further pleadings, and plaintiff appeals. Error judgment set aside, and cause remanded.
Raymond E. Hackett, of Stamford, for appellant.
Sol Rubin, of New Rochelle, N. Y., and Robert J. Emmons, of Greenwich, for appellee Merard Holding Co.
Thomas J. Ryle, of Stamford, for appellee Great Atlantic & Pacific Tea Co.
Clement A. Fuller and Edward C. Fisher, both of Stamford, for appellee Lomas & Nettleton Co.
Argued before WHEELER, C.J., and MALTBIE, HAINES, HINMAN, and AVERY, JJ.
The amended complaint alleges these facts: The plaintiff is the owner in fee simple of a tract of land with the buildings thereon, situated on the west side of Riverside avenue, in Greenwich, and occupies the same as a private dwelling for herself and family. The defendant Merard Holding Company, Incorporated, is the owner of certain premises directly opposite the premises of plaintiff on the east side of this avenue. The defendant Great Atlantic & Pacific Tea Company has a chain grocery store, and defendant Abraham Marks a newspaper business, in the Merard Company's premises.
On February 1, 1926, the town of Greenwich adopted various building zone regulations, and under these the area of Greenwich on this avenue, in which the premises of the plaintiff and of the Merard Company are situated, was and is now restricted solely to the erection of buildings for residential purposes and the erection on the Merard Company's property of buildings designed for business purposes of any kind is prohibited by these zoning regulations. Subsequent to their adoption the Merard Company caused to be erected on its premises a building consisting of four stores designed solely for business purposes, and it is now being used for such purposes in violation of the zone regulations. While this company was erecting this building, the zoning commission of Greenwich notified it that its construction of this building was in violation of the zone regulations. The plaintiff has, upon a number of occasions, requested the zoning commission and its officers to prevent by legal or other proceedings the erection of this building, to abate this violation of these regulations, to prevent the occupancy of this building and land for business purposes, and to restrain the use of the same by the defendants for such purposes in violation of these regulations, but the commission has neglected and refused to take any action or proceedings whatsoever to prevent or abate the violation.
The plaintiff's home is directly opposite to and within a short distance of the property of the Merard Company, and by reason thereof is peculiarly and specially damaged and for these reasons: All the property adjacent to and in the vicinity of plaintiff's property, with the exception of that of the Merard Company, is used for and devoted solely to residential purposes, and the neighborhood in which plaintiff's property is located is and has long been a first-class residential district, devoted exclusively to the erection and maintenance of homes and private dwellings. The adoption of the zoning regulations has rendered plaintiff's property entirely valueless for business purposes and the continued use of the Merard Company's property for business purposes reduces the value of plaintiff's property for residential purposes, and if continued, and by reason of its proximity to plaintiff's property will entirely destroy its marketability for residential purposes. As a result plaintiff's property will be valueless for either business or residential purposes, and as a consequence she will be irreparably damaged. The character and conduct of the two businesses in the Merard Company's building is such that the highway in front of plaintiff's property is constantly, throughout the daytime, greatly congested by automobiles and trucks; crowds of people constantly assemble at these stores, automobiles park on the highway, and at times partly on the sidewalk in front of plaintiff's property; frequently automobiles drive into plaintiff's fence and onto her lawn, and damage each; frequently in the night trucks going to the Tea Company's place of business and in unloading goods from the trucks make so much noise as to disturb the sleep, peace, and comfort of plaintiff and make it impossible for her to sleep or enjoy her home in peace and quiet; and because of these facts and the conduct of these businesses and the conduct of their patrons the peace and quiet in and about plaintiff's property is greatly interfered with, and the annoyance to her is special and peculiar and totally different from that to the public and all other property owners whose property is located within the zone and in the neighborhood of these premises. The plaintiff is suffering irreparable injury for which she has no adequate remedy at law.
The Tea Company demurred because (1) the plaintiff as a private individual is endeavoring to enforce a governmental function which belongs exclusively to the zoning commission of Greenwich; (2) the amended complaint is, in substance, the same as the original complaint except in the averments as to the conduct of these businesses, and to it a demurrer has been sustained; (3) the decision on the former demurrer is res judicata as to the amended complaint and the relief sought therein and the cause of action now set forth is the same one as formerly alleged in the original complaint. The Merard Company demurred because plaintiff should have moved for relief before the zoning commission, or sought by mandamus to compel the commission to enforce its regulations which are the subject-matter of the complaint. The Lomas & Nettleton Company joined in the demurrers of the other two defendants. The other grounds of demurrer of the Tea Company were general instead of special. The trial court sustained the demurrers upon two grounds, that the enforcement of the violation of the zoning regulations of Greenwich belonged exclusively to the zoning commission of that town, and that the plaintiff was without authority to enforce its governmental function, and, further, because the decision of the demurrer to the original complaint is res judicata, since the complaint sets up no new right of action. Apparently the main ground of the former demurrer was that the complaint alleges no special damage to plaintiff, and therefore states no facts constituting an invasion of plaintiff's private rights. The trial court was of the view that the injury alleged in the amended complaint is that " common to the residential community in which the plaintiff lives, in kind, if not in degree," and hence, that no new cause of action is set up.
If the court was of the opinion that the former demurrer was correctly decided, it was proper to treat it as the law of the case. If it was of a contrary opinion, it was not required to so treat it, but ought to have determined it in accordance with its view of the law....
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