DocketNumber: No. CV 93-0350902
Citation Numbers: 1997 Conn. Super. Ct. 8985, 20 Conn. L. Rptr. 183
Judges: BLUE, J.
Filed Date: 9/12/1997
Status: Non-Precedential
Modified Date: 4/17/2021
This case involves the erection of a fence on the boundary between a building and a parking lot in a commercial area of New Haven. The facts are found from the evidence presented at a bench trial held on August 27, 1997.
The parties own adjoining commercial buildings on State Street in New Haven. The plaintiffs, Harold and Jo-Ann Pressman own 930-32 State Street (the "Pressman Building"). The defendant, Kenneth Kraus (his name is misspelled in the caption of the case) owns 934-36 State Street (the "Kraus Building"). The Pressman building is significantly deeper than the Kraus building. The area behind the Kraus Building, also owned by Kraus, is a parking lot fronting Bishop Street. The rear of the Pressman Building contains a door opening onto the parking lot. The position of the properties in question can be illustrated by the following diagram (not drawn to scale):
__________________________________________________ | | | | | | B | | Parking | I | __|__ Lot | S | Door | H | _____ | O | | | P | | | | |_______________________| S | | | T | | | R | Pressman | Kraus | E | Building | Building | E CT Page 8987 | | | T | | | | | | |__________________________|_______________________| State Street
The Pressman Building was operated as a hardware store from 1945 to 1991. The Pressmans, who operated the hardware store business after 1964, purchased the building in 1984. The hardware store closed in 1991.
Kraus, an architect, purchased the Kraus building and the adjoining parking lot in 1980. The building contains a store (operated as a toy store at the time of the events about to be described), an office (used by Kraus) overlooking the parking lot, and four apartments.
The door from the Pressman building to the parking lot was an overhead door, of the type used in garages, until 1992. In 1992, the Pressmans boarded up most of the overhead door and inserted a smaller standard door in its center. The new door opens out. Although some witnesses testified that the overhead door had been routinely used for commercial deliveries prior to that time, this testimony was not credible and is contradicted by the physical evidence. In 1993, a tree, five inches in diameter and taller than the building, was located directly in front of the boarded-up portion of the overhead door. Kraus credibly testified that he had never once seen the overhead door used for deliveries or anything else since he purchased the Kraus building in 1980. During this time, the door was covered with vegetation. Kraus used the parking lot for his and his tenants' businesses. There were ordinarily four to six cars parked in the lot.
In August 1993, the Pressmans rented the Pressman Building to an adult bookstore. The proprietors of the store soon began to use the door from the Pressman Building to the parking lot for truck deliveries. One truck driver made threatening remarks to Kraus. In response to these developments, Kraus erected the fence that is the cynosure of this case. The fence is located in the parking lot, parallel to the Pressman Building and about one foot away from that building. The exact dimensions of the fence are not in evidence. Photographs in evidence indicate that it is reasonably attractive in appearance and approximately three or four feet high and twenty-five feet long. It does not shut out any significant light, air, or view from the Pressman Building, CT Page 8988 but it does interfere with the use of the door to the parking lot. Its purpose is to keep unauthorized persons and vehicles out of the parking lot.
The fence made it impossible to use the rear door in the Pressman Building because the door, as mentioned, opens out. The fence is sufficiently close that the door cannot be fully extended. It does not appear that alternatives, such as a sliding door, have been fully explored. The New Haven authorities — who were not receptive to an adult bookstore in any event — did not allow the bookstore to be opened because of the problems with the rear door. The lease was broken, and the Pressmans suffered personal economic damages as a result.
The plaintiffs' complaint is pleaded in a single count presenting two different claims. The plaintiffs first claim a prescriptive easement across the parking lot. They additionally claim relief under the malicious structure statutes. Conn. Gen. Stat. §§
As a factual matter, the plaintiffs have failed to satisfy their burden of proof with respect to their initial claim of prescriptive easement. They claim that they acquired a right-of-way from the rear door of the Pressman Building across the parking lot by frequent and regular use of that right-of-way for fifteen years. See Conn. Gen. Stat. §
The plaintiffs' statutory claims can appropriately be considered together. Conn. Gen. Stat. §§
The record in this case is sufficient to establish some of the Whitlock elements. A fence is a "structure" within the meaning of the statute. DeCecco v. Beach,
The "intent to injure" Whitlock prong is, however, not established on this record. Whitlock explains that the "real evil" addressed by the statutes is "the erection of a structure which substantially serves, and is intended to serve, no purpose but to injure [an adjoining landowner] in the enjoyment of his land."
One legitimate purpose identified by Whitlock is "protection . . . in the use of the land." The evidence establishes that the fence in question here serves such a CT Page 8990 purpose. The purpose is the protection of the parking lot from persons and vehicles crossing that lot to reach the rear door of the Pressman Building. By serving this particular purpose, the fence will inevitably injure the adjoining landowners. Without free access through the parking lot, the adjoining landowners will be at least slightly worse off than they would be with such access. That fact does not, however, strip the fence of its legitimate purpose.
This case involves considerations somewhat different from those underlying most "spite fence" cases. The typical case of this description involves the erection of a fence that deprives the adjoining landowner of light, air, and view. It has long been recognized that the our malicious structure statutes may properly be employed in "air and light" cases. Harbison v. White, supra,
The fence involved in this case, by cutting off access to the parking lot from the rear door of the Pressman Building, necessarily benefited the owner of the parking lot in the process. If the Pressmans had a right-of-way across the parking lot, the balance of rights involved would be quite different. For reasons already discussed, however, the Pressmans had no such right-of-way. Given this fact, a hypothetical posited long ago by the New York Supreme Court of Judicature is in point.
Suppose an obliging farmer permits his neighbor to pass and repass through his fields, to go to the lands of that neighbor; if this is permitted for 20 years, it becomes an easement, a right of way, which the owner of the soil cannot infringe; but at the end of ten years, he chooses . . . to shut up this passage, and refuses permission to his neighbor to pass over his lands, as he used to do for ten years past; does an action lie? Most certainly not.
CT Page 8991
Mahan v. Brown, 13 Wend. 261, 264-25 (N.Y.Sup.Ct. 1835). While Mahan has since been rejected with respect to its separate analysis of the right to air and light; Burke v. Smith, supra;
the reasoning of the hypothetical just given remains intact. The protection of the use of land is a legitimate purpose for a fence. Whitlock v. Uhle, supra,
For the reasons just discussed, the "intent to injure" prong of Whitlock is not established by the evidence here. Because no such intent is shown, the structure is not malicious. Whitlock v.Uhle, supra,
The plaintiffs do not claim that the fence in question is a nuisance. See Whitlock v. Uhle, supra,
Jon C. Blue Judge of the Superior Court
DeCecco v. Beach , 174 Conn. 29 ( 1977 )
Whitlock v. Uhle , 75 Conn. 423 ( 1903 )
Leo Sheep Co. v. United States , 99 S. Ct. 1403 ( 1979 )
Rapuano v. Ames , 21 Conn. Super. Ct. 110 ( 1958 )
Rutka v. Rzegocki , 132 Conn. 319 ( 1945 )
Andrzejczyk v. Advo System, Inc. , 146 Conn. 428 ( 1959 )