Roche v. Town of Fairfield

• Decision Date: 23 March 1982
• Citation: 186 Conn. 490,442 A.2d 911
• Court: Connecticut Supreme Court
• Parties: Charles F. ROCHE III et al. v. TOWN OF FAIRFIELD.

Page 911

442 A.2d 911

186 Conn. 490

Charles F. ROCHE III et al. v. TOWN OF FAIRFIELD.

Supreme Court of Connecticut.

Argued Dec. 4, 1981.

Decided March 23, 1982.

[186 Conn. 491] Thomas J. Dolan, with whom, on the brief, was Edward V. Barrett, Bridgeport, for appellants (plaintiffs).

Noel R. Newman, with whom was Kenneth B. Povodator, Fairfield, for appellee (defendant).

Before HEALEY, PARSKEY, ARMENTANO, SHEA and WRIGHT, JJ.

ARTHUR H. HEALEY, Associate Justice.

This is an action for injunctive relief brought by the plaintiffs seeking to enjoin the defendant, town of Fairfield, from "trespassing upon or otherwise using" beach property allegedly owned by the plaintiffs. ¹ The plaintiffs, Charles F. Roche III, Nancy Roche and Michael Trotta, are owners of two separate parcels of land, presently physically bounded on the south by Long Island Sound, in Fairfield (see plaintiffs' exhibit set out in appendix to opinion). The plaintiffs have appealed from a judgment for the defendant.

For many years prior to 1930, the plaintiffs' properties were bounded southerly by Pine Creek, a navigable estuary of Long Island Sound. The creek was separated from the Sound by a sand spit or peninsula which ran parallel to the shore and extended as far as the plaintiffs' properties. ² The spit acted as a barrier protecting the mainland shore from the Sound.

Both plaintiffs' premises are portions of a six-acre tract of land which a common predecessor in title received in 1896 and which tract was described as being bounded on the south by Long Island Sound. This tract was later subdivided into smaller parcels, two of which the plaintiffs presently own. Trotta received title to his premises in 1947 in a deed which described his property as bounded on the south by Pine Creek. The Roches received title to their premises ³ in 1976 in a deed which also described their property as bounded on the south by Pine Creek. ⁴

In 1938, a storm washed away the westerly end of the sand spit which existed south of Pine Creek and which was the southerly boundary of that creek, and which spit had as its southerly boundary Long Island Sound. In 1950, another storm further destroyed another portion of the sand spit leaving an island, and another storm in 1955 destroyed the remaining portion of the sand spit which was located in front of the plaintiffs' premises. As of 1960, the sand spit, as it had existed in front of the plaintiffs' properties, was completely destroyed so that the plaintiffs' properties fronted directly on Long Island Sound. The sand spit, which had previously defined the boundaries of Pine Creek, had been completely inundated to a point east of the plaintiffs' properties leaving only a sandbar which appeared at low tide.

Between the 1955 storm and the mid-1960s, sand accumulated so that the beach in front of the plaintiffs' properties grew to some 200 feet. This beach extended to Long Island Sound over what had formerly been the bed of Pine Creek. In 1967, the town obtained easements ⁵ from the affected property owners, including the Roches (but not Trotta), for the construction of a dike as part of a flood control project. The dike was located substantially in the center of what had formerly been Pine Creek. The title to the beach area between the plaintiffs' original southerly boundary and the Sound is the subject of the present dispute.

Since 1959, the town, through its recreation commission, has maintained a lifeguard station at a public beach called South Pine Creek Beach which includes the 200 feet of beach area in front of the plaintiffs' properties ⁶ and extends to a wooden bulkhead located east of the plaintiffs' properties. The public beach was operated every day from Memorial Day to Labor Day and on weekends in September of each year. The lifeguards would patrol the beach area daily and their duties included safeguarding bathers, giving swimming lessons and prohibiting fishing, dogs and alcoholic beverages from the premises. The area patrolled included the beach in front of the plaintiffs' premises up to a wooden bulkhead east of their properties. The parks department has regularly cleaned the beach area once or twice a week during the summer months since 1959.

In the fall of 1976, Roche placed stones, as markers, along his easterly boundary line to the high-water mark of Long Island Sound. The town, in 1977, removed some of the stones and Roche, threatened with arrest, removed the rest of the stones. Roche, claiming ownership of the beach area in front of his property, wrote to the first selectman and the department of public works advising them to keep off his land and that he did not need their assistance in maintaining his property.

The plaintiffs brought this action for injunctive relief and damages for trespass on the land in front of their properties maintaining that their title extends to the high-water mark of Long Island Sound by virtue of the doctrine of accretion. The defendant denied the plaintiffs' title by accretion and raised the alternative special defenses of adverse possession, prescriptive easement and implied dedication. The trial referee held that an avulsion, and not accretion, had occurred and that the plaintiffs had failed to prove their title to the area in dispute. The referee also found that even if the disputed land did belong to the plaintiffs, the defendant would have obtained either title to the land by adverse possession or a right of way to use the land by prescriptive easement. ⁷

I

The plaintiffs' first claim is that the referee erred in finding that the beach area in dispute in front of the plaintiffs' property was created by an avulsion rather than by accretion. We agree. "On appeal, it is the function of this court to determine whether the decision of the trial court is clearly erroneous. See Practice Book, 1978, § 3060D. This involves a two part function: where the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision; where the factual basis of the court's decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous." (Footnote omitted.) Pandolphe's Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980).

Accretion is defined as "(a)ddition of portions of soil, by gradual deposition through the operation of natural causes, to that already in possession of the owner." Black's Law Dictionary (5th Ed.); see 5 Powell, Real Property (1981) P 719; 5A Thompson, Real Property (1970 Sup.) §§ 2560-2564. Avulsion is defined as "(a) sudden and perceptible loss or addition to land by the action of water, or a sudden change in the bed or course of a stream.... The removal of a considerable quantity of soil from the land of one man, and its deposit upon or annexation to the land of another, suddenly and by the perceptible action of water." Black's Law Dictionary (5th Ed.); see 5 Powell, Real Property (1981) P 719.

"(T)he owner of waterfront property is benefited in title by whatever may be joined to his land, above the high-water mark, through accretion. Rochester v. Barney, 117 Conn. 462, 468, 169 A. 45 (1933)." Short Beach Cottage Owners Improvement Assn. v. Stratford, 154 Conn. 194, 200, 224 A.2d 532 (1966); see Welles v. Bailey, 55 Conn. 292, 316, 10 A. 565 (1887); see also Lockwood v. New York & New Haven R. Co., 37 Conn. 387, 391 (1870). Where a change occurs suddenly and perceptibly by avulsion, however, boundaries and title to land are not affected. 78 Am.Jur.2d, Waters § 411; see Missouri v. Nebraska, 196 U.S. 23, 35, 25 S.Ct. 155, 157, 49 L.Ed 372 (1904). The trial referee found that "(t)he evidence clearly indicates that the sand spit in front of their properties was destroyed by three storms occurring in 1938, 1950 and 1955, and that the changes were a sudden and perceptible loss of the spit resulting immediately from the storms.... The changes of the northerly bound of the Sound occurred on the days of each storm and were complete on those days, portions of Pine Creek disappeared instantly on those days and the shore line of the Sound suddenly and perceptibly became the shore line as it presently exists, during the storms. What had been Pine Creek suddenly and perceptibly became Long Island Sound. What occurred in the present case constituted an avulsion."

While this finding adequately deals with the title and boundaries to the sand spit, it sheds no real light on the status of the title to that portion of the beach area in front of the plaintiffs' properties. There was no evidence that this disputed beach area itself was created by an avulsion. There was also no evidence, even though the defendant seems to claim otherwise, that the disputed beach area was, in reality, the first submerged, now reemerged sand spit. ⁸ It does appear, however, that there was sufficient evidence presented at the trial to establish, by a preponderance of the evidence, the plaintiffs' title to the disputed beach area by accretion.

Margaret Raso, Trotta's daughter, testified that after the 1950 hurricane, the beach area directly in front of the plaintiffs' properties (or their predecessors) gradually increased over the years due to the shifting of sand caused by the currents. George Chicos, a local resident and former town employee, also testified that the disputed beach area gradually built up with sand and filled in what was once Pine Creek. Frank Daniels, engineer for the town of Fairfield, testified that the beach area in dispute gradually built up with sand, over the years from 1950 to 1970, due to the action of the tides and winds. The testimony of those three witnesses on the subject of accretion was uncontroverted.

Therefore, the trial referee's...