Rapuano v. Ames, 87005

• Decision Date: 25 June 1958
• Docket Number: No. 87005,87005
• Citation: 145 A.2d 384,21 Conn.Supp. 110
• Parties: Philip R. RAPUANO et al. v. Clarence G. AMES et al.
• Court: Connecticut Superior Court

Page 384

145 A.2d 384

21 Conn.Supp. 110

Philip R. RAPUANO et al. v. Clarence G. AMES et al.

No. 87005.

Superior Court of Connecticut, New Haven County.

June 25, 1958.

John J. Johnson and Raymond J. Doyle, New Haven, for plaintiffs.

Edward F. Becker, New Haven, for defendants.

MacDONALD, Judge.

This action, asking damages as well as an injunction and a decree requiring the defendants to remove a fence alleged to have been erected on defendants' land 'maliciously and with intent to annoy and injure the plaintiffs in the use and disposition of their land,' which adjoins that of defendants, differs in several respects from the traditional 'spite fence' cases, but still, on its facts, falls within the provisions of §§ 8216 and 8311 of the General Statutes.

Section 8216 provides for the granting of an injunction against the 'malicious erection' by the owner of land on his own land of any structure 'intended to annoy and injure' the owner of adjacent land, while § 8311 provides a legal remedy in damages for the same kind of act, using only slightly different language. These two statutes have been on our books for about one hundred years and have been unchanged since 1875, but have been cited in comparatively few cases. Walden v. Siebert, 102 Conn. 353, 128 A. 702, treated a fence as a 'structure,' and Gallagher v. Dodge, 48 Conn. 387, at pages 391-395 early pointed out that the malicious purpose of the person erecting the structure must be the predominant one and must give character to the act. However, the leading Connecticut case on the subject appears to be Whitlock v. Uhle, 75 Conn. 423, 53 A. 891, which specifies the ingredients necessary to state a cause of action under the two statutes mentioned above as follows: (1) A structure erected on the owner's (defendant's) land; (2) a malicious erection of the structure; (3) the intention to injure the enjoyment of the adjacent landowner's land by the erection of the structure; (4) an impairment of the value of adjacent land because of the structure; (5) the structure useless to the defendant; (6) the enjoyment of the adjacent landowner's land in fact impaired.

Before searching for the above ingredients in the instant case, it would be helpful to narrow the issues as much as possible. Here the defendants have erected a tight board fence, well within their own boundary lines, along their southerly boundary, adjacent to Huntington Circle, a public way, and northerly for a distance of 138 feet from Huntington Circle along their westerly boundary, which is also the easterly boundary of plaintiffs' property. Defendants also plan to extend this fence along the remaining length of their westerly boundary, but stopped further construction when this action was started. Since it is conceded, for all practical purposes, that the only portion of the fence seriously objected to by plaintiffs is that extending along the defendants' westerly and the plaintiffs' easterly boundary, only that part will be considered in this decision.

The portion of the fence under consideration has been erected three feet east of the common boundary line of the parties, well inside defendants' own land, the smooth or finished part faces plaintiffs' property and has been painted an unobtrusive brown color, and defendants further planted evergreen trees and shrubbery on the three-foot strip of their own land between the fence and plaintiffs' property. On these facts, it is obvious that a deliberate malicious intention to injure plaintiffs' enjoyment of their property was not the primary motive behind the erection of the fence--nor was there any evidence of any spite or hard feelings between the parties that could point toward such motivation. Such elements of malice and intent to injure, therefore, must be found, if at all, from the very nature of the structure and its physical relationship to plaintiffs' enjoyment of their property.

The fence along Huntington Circle and for most of the distance along the boundary under discussion here was erected to a height of six feet four inches, a high fence as fences in residential areas go in this part of the country but not a height that can be found so unreasonable to accomplish the announced purposes of defendants, namely to afford privacy for sunbathing and the enjoyment of a contemplated swimming pool, containment of dogs and the protection of shrubbery and plants, as to be...