DocketNumber: No. CV93 0306492S
Citation Numbers: 1994 Conn. Super. Ct. 328
Judges: MAIOCCO, J.
Filed Date: 1/13/1994
Status: Non-Precedential
Modified Date: 7/5/2016
In his revised complaint, filed on September 29, 1993, the plaintiff alleges that in 1962, A.B. Dick leased the subject property from a former owner, and subsequently sublet the property to Dictaphone. The plaintiff alleges that the sublease instrument was assigned to him by the former owner on May 27, 1983, and that he purchased the subject property on June 3, 1983. On October 1, 1991, Dictaphone sublet the subject property to the current tenant, defendant ALCO.
In the first count of the revised complaint, the plaintiff asserts a nuisance cause of action against the defendants, based on allegations that the defendants deposited hazardous waste materials onto the subject property during the course of their respective tenancies. In the second count, the plaintiff asserts a cause of action against the defendants based on their alleged violations of General Statutes
On October 15, 1993, A.B. Dick filed a motion to strike (#108) the first count, the second count, and the first paragraph of the prayer for relief of the plaintiff's revised complaint, along with a supporting memorandum of law. The plaintiff filed a memorandum of law in opposition (#110) on CT Page 329 October 22, 1993. A.B. Dick filed a reply memorandum (#116) on November 15, 1993.
The motion to strike tests the legal sufficiency of a complaint, or any one or more counts thereof, to state a claim upon which relief can be granted. Ferryman v. Groton,
In support of its motion to strike the first count of the plaintiff's revised complaint, A.B. Dick argues that this count fails to state a claim upon which relief can be granted because the plaintiff has no standing under common law to bring a nuisance action against a tenant of a former owner of the plaintiff's property. A.B. Dick contends that a nuisance claim may only be asserted against a defendant who is a neighboring, contemporaneous property owner. A.B. Dick further contends that the plaintiff has failed to allege two essential elements of a nuisance claim, namely: (1) that the plaintiff does not allege that A.B. Dick's use of the subject property was unreasonable or unlawful; and (2) that the danger allegedly created by A.B. Dick is continuous in nature. In response, the plaintiff argues that a private nuisance claim may properly be brought against a defendant who is not a neighboring land owner, and that he has alleged all of the elements necessary to state a legally sufficient private nuisance cause of action.
In Nicholson v. Connecticut Half-Way House,
In opposition to A.B. Dick's motion to strike, the plaintiff argues that a private nuisance cause of action may properly be brought against a defendant who is not a neighboring land owner (i.e., a private nuisance cause of action may be asserted by a plaintiff property owner against a tenant of a former owner of the plaintiff's property). The plaintiff cites State v. Tippetts-Abbett-McCarthy-Stratton,
Our case law has established no bright line test to determine when a defendant's connection to a particular parcel of property suffices to make it an unreasonable or unlawful "user" of the property. While the defendant in a nuisance action frequently is the owner of the property alleged to be the source of nuisance . . . property ownership is not a prerequisite to nuisance liability. . . .
(Citations omitted.) Id., 183-84. Despite its broad language, this case does not dispense with the requirement that the nuisance which is the subject of the plaintiff's suit must be located on, or must emanate from, a neighboring parcel of land. Rather, this case stands for the proposition that a plaintiff may bring a nuisance action against a tenant in possession of a neighboring parcel of land, provided that the defendant-tenant "exercises control over the property that is the source of [the] nuisance." Id., 184. The plaintiff also cites Mangini v. Aerojet-General Corp.,
Consequently, since the plaintiff is not asserting his private nuisance claim against a defendant who is or was in control of a neighboring parcel of land, the plaintiff's first count is legally insufficient. Accordingly, A.B. Dick's motion to strike the first count of the plaintiff's revised complaint is granted.
In support of its motion to strike the second count of the plaintiff's revised complaint, A.B. Dick argues that the plaintiff cannot assert a claim pursuant to General Statutes
General Statutes
It is clear that the plain language of
A.B. Dick also seeks to strike the first paragraph of the plaintiff's prayer for relief which seeks injunctive relief. Generally, "[i]f the elements of a nuisance claim are clearly demonstrated, and if irreparable harm cannot otherwise be prevented, the court may enjoin the use objected to." Nicholson v. Connecticut Half-Way House, supra, 510; Brainard v. West Hartford,
THE COURT
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Philadelphia Electric Company v. Hercules, Inc. And Gould, ... , 762 F.2d 303 ( 1985 )
Mangini v. Aerojet-General Corp. , 281 Cal. Rptr. 827 ( 1991 )
Brainard v. Town of West Hartford , 140 Conn. 631 ( 1954 )
Nicholson v. Connecticut Half-Way House, Inc. , 153 Conn. 507 ( 1966 )