Point O'Woods Ass'n, Inc. v. Busher

• Decision Date: 18 July 1933
• Citation: Point O'Woods Ass'n, Inc. v. Busher, 117 Conn. 247, 167 A. 546 (Conn. 1933)
• Parties: POINT O'WOODS ASS'N, Inc., v. BUSHER.
• Court: Connecticut Supreme Court

167 A. 546

117 Conn. 247

POINT O'WOODS ASS'N, Inc., v. BUSHER.

Supreme Court of Errors of Connecticut.

July 18, 1933

Appeal from Superior Court, New London County; Alfred C. Baldwin Judge.

Action by the Point O'Woods Association, Inc., against Elizabeth K. Busher for an injunction against an alleged violation of an ordinance prohibiting the use of certain structures for dwelling or living purposes, brought to the superior court in New London county and tried to the court. Judgment rendered for the defendant, and appeal by the plaintiff.

No error.

H. D Schofield, of Hartford, for appellant.

Ralph M. Grant, of Hartford, for appellee.

Argued before MALTBIE, C.J., and HAINES, HINMAN BANKS, and AVERY, JJ.

HINMAN, Judge.

The plaintiff is an association composed of the owners of land in a colony of summer residents known as Point O'Woods in Lyme, and was incorporated by special act (Special Acts 1925 [vol. 19] p. 1031). Section 5 of the act provides that the association " shall have the power to make and enforce reasonable police regulations within its limits, including provisions concerning garbage and other refuse matter, and the removal of the same." In July, 1930, the association enacted an ordinance providing, in section 1, that " no person, persons, or incorporations shall use nor cause to be used, rent, lease, or occupy for dwelling or living purposes any garage or tent within the territorial limits of Point O'Woods Association." Other sections provide for appeal to the governing board by persons affected, and that the ordinance take effect June 1, 1931.

The complaint alleged that the defendant owns a piece of land within the territorial limits of the association, the only buildings on which consist of a wooden two-car garage and a canvas tent which the defendant has caused to be used, rented, or leased for dwelling or living purposes, and are now being used for such purposes; that the plaintiff has warned the defendant that such use is in violation of the ordinance, but she has failed to appeal to the governing board, and refuses to desist from so using the premises; that the property owners included in the plaintiff association have been greatly injured, their property greatly depreciated in value, and the public health and welfare greatly endangered by the acts of the defendant, and that the damages for such injury are of a nature incapable of measurement by pecuniary standard, and injunctive relief is the only natural and reasonably certain remedy. The relief claimed was a permanent injunction restraining the defendant from causing to be used, renting, leasing, or occupying the garage and tent for dwelling and living purposes.

The trial court found that formerly garages and tents upon premises within the association limits were used for living purposes under conditions which were disturbing and offensive from the standpoint of morals, that the ordinance was adopted in consequence, and that the objectionable conditions have since disappeared. It is found, further, that one of the structures on the defendant's property is a one-story building, twenty-by twenty feet, having the external appearance of a two-car garage with two large doors at the front and a door at the rear, but has never been used as a garage. Inside it is divided by wooden partitions into four rooms, and is equipped with running water, a lavatory, and a toilet with septic tank, and in summer has been used by the defendant and her tenants for sleeping purposes. The finding states that as so arranged and equipped the building " is a bungalow" and " not a garage." The other structure is twelve by twenty-five feet, standing on short posts, having a board floor with board sides and ends three feet high above the floor. There is also a wood frame over which canvas is...