Connecticut Judicial Branch Law Libraries
Copyright © 2003, Judicial
Branch, State of Connecticut. All rights reserved.
Encroachment by an Adjoining Landowner
in Connecticut
A Guide to Resources in the Law Library
· “Trespass to land is an unlawful invasion of another’s right of possession.” McPheters v. Loomis, 125 Conn. 526, 530, 7 A.2d 437 (1939).
· “Though standing on adjoining land the boys in shooting on to the respondent's land, were trespassers . . . .” Munro v. Williams, 94 Conn. 377, 379, 109 A. 129 (1920).
· “A plaintiff's claim may fail simply as a result of his or her inability to establish adequately the disputed boundary line.” Velsmid v. Nelson, 175 Conn. 221, 224, 397 A.2d 113 (1978).
· “The court found that the fence had been erected on the boundary line between the parties, entered judgment accordingly, and assessed nominal damages for the trespass.” Baton v. Potvin, 141 Conn. 198, 199, 104 A.2d 768 (1954).
· “Title is an essential element in a plaintiff's case, where an injunction is sought to restrain a trespass. McNamara v. Watertown, 100 Conn. 575, 579, 124 A. 244. The burden is on the plaintiff to locate the boundary line.” Barrs v. Zukowski, 148 Conn. 158, 164-165, 169 A.2d 23 (1961).
· Adverse Possession: “This action was brought by the plaintiffs for trespass and for an injunction to restrain the defendants from encroaching on the land of the plaintiffs. The defendants filed a cross complaint claiming title by adverse possession to the contested four-foot area along the boundary of the property of the parties. The court rendered judgment for the defendants on the complaint and cross complaint, finding that the defendants had acquired ownership of the disputed area by adverse possession. It also found that the defendants had failed to prove that they were entitled to any damages.” Lavin v. Scascitelli, 172 Conn. 8, 8-9, 372 A.2d 127 (1976).
· Plot Plan: “At this time, it was found that trespass upon adjoining property occurred in entering and leaving the plaintiffs' back door and stoop. Prior to this discovery, the parties were unaware that there was a violation of the zoning regulations as to sideyard requirements. The defendant, under a mistaken assumption, had represented by the plot plan that the structure on the lot was twenty feet from the southerly boundary. Unaware of the true fact, the plaintiffs relied on this representation.” Richard v. A. Waldman & Sons, Inc., 155 Conn. 343, 346, 232 A.2d 307 (1967).
Sections in this chapter:
§ 1 Encroachment by vegetation
§ 2 Encroachment by structure
A Guide to Resources in the Law Library
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SCOPE: |
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TREATED ELSEWHERE: |
· § 2. Encroachment by structures
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DEFINITION:
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· “Where trees are located on the property of one party and their roots or branches extend onto the property of a second party, the latter may lop off the branches or roots up to the line of his land. Robinson v. Clapp, 65 Conn. 365, 377, 32 A. 939 [later appealed 67 Conn. 538, 35 A. 504(1896)]. We find nothing in the zoning regulations abrogating this right. This does not mean, of course, that complete disregard for the welfare of the trees is permitted.” McCrann v. Town Plan & Zoning Commission, 161 Conn. 65, 75, 282 A.2d 900 (1971). · “Now, if these branches were a nuisance to the defendant’s land, he had a clearly a right to treat them as such, and as such, to remove them. But he has as clearly no right to convert either the branches or the fruit to his own use.” Lyman v. Hale, 11 Conn. 177, 185 (1836).
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STATUTES:
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· Conn. Gen. Stat. (2003) Chapter 925. Statutory rights of action and defenses § 52-560. Damages for cutting trees, timber or shrubbery
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FORMS:
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· 1A Am. Jur. Legal Forms Adjoining Landowners (1999). § 8:10. Agreement between adjoining landowner—Encroachment of trees or bushes · 1A Am. Jur. Pleading & Practice Adjoining Landowners (2003). § 83. Complaint, petition, or declaration—Encroaching tree—Nuisance—For injunctive relief § 84. Complaint, petition, or declaration—Encroaching terrace and hedge—For injunctive relief § 85. Complaint, petition, or declaration—Encroaching hedge—For injunctive relief to prevent destruction of plaintiff’s fence § 86. Complaint, petition, or declaration—To compel adherence to agreement limiting height of trees—For injunctive relief and damages § 87. Complaint, petition, or declaration—Trees and roots render land unproductive—For injunctive relief and damages § 88. Complaint, petition, or declaration—Encroaching roots and branches—To abate nuisance and for damages § 89. Complaint, petition, or declaration—To compel removal of encroaching vegetation § 90. Answer—No intentional intrusion possible with tree roots—Self-help not exercised—No interference with use and enjoyment of land § 91. Judgment or decree—Enjoining defendant from maintaining encroaching hedge § 92. Judgment or decree—Enjoining removal of trees used as windbreak
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WEST KEY NUMBERS: |
· Adjoining Landowners # 5. Trees and plants on or near boundary # 9. Encroachments # 10. Right to and obstruction of light, air, or view
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DIGESTS:
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· Dowling’s Digest: Adjoining landowners · ALR Digest: Adjoining landowners · ALR Index: Adjoining landowners
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COURT CASES |
· McCrann v. Town Plan & Zoning Commission, 161 Conn. 65, 75, 282 A.2d 900 (1971). “Where trees are located on the property of one party and their roots or branches extend onto the property of a second party, the latter may lop off the branches or roots up to the line of his land. Robinson v. Clapp, 65 Conn. 365, 377, 32 A. 939. We find nothing in the zoning regulations abrogating this right. This does not mean, of course, that complete disregard for the welfare of the trees is permitted.” · Dalling v. Weinstein, 6 Conn. Sup. 498, 499 (1939). “Where one's property is cast or stranded upon the land of another as a result of an act of God, such as a flood or hurricane, the owner of the property may enter upon the land where it is and recover it without being guilty of trespass . . . . Also, the owner of the stranded property has the option to abandon it. But no rights are given the owner of the land in the stranded property until and unless the owner thereof has exercised his option to abandon it.” · Lyman v. Hale, 11 Conn. 177, 185 (1836). “Now, if the branches were a nuisance to the defendant’s land, he had clearly a right to treat them as such, and as such, to remove them. But he as clearly had no right to convert either the branches or the fruit to his own use.”
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ENCYCLOPEDIAS: |
· 1 Am. Jur. 2d Adjoining Landowners (1994). §§ 119-137. Encroachments A. In general § 119. In general § 120. Encroachment as nuisance § 121. Encroachment as ouster; prescriptive right to encroach B. Remedies 1. In general, §§ 122-128 § 122. Action for damages, generally § 123. —Measure of damages § 124. Ejectment § 125. Limitations, generally § 126. Accrual of cause of action § 127. Acquiescence or estoppel § 128. Removal by self-help, generally 2. Injunctive relief; Mandatory injunction, §§ 129-137 · 2 C.J.S. Adjoining Landowners (1972). §§ 40-57. Encroachments Trees or plants on or near boundary § 50. Ownership § 51. Invasion or damage to adjoining land § 52. Remedies for intruding branches or roots § 53. —Actions § 54. —Absence of injury On the boundary line § 55. Ownership § 56. Injury or destruction § 57. —Actions · Robert Roy, Annotation, Vegetation, Boundaries, Encroachment Of Trees, Shrubbery, Or Other Vegetation Across Boundary Line, 65 ALR4th 603 (1988). |
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TEXTS & TREATISES:
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· 2 James H. Backman, A Practical Guide To Disputes Between Adjoining Landowners—Easements (2001). Chapter 10. Trespass to realty between neighboring and adjoining landowners § 10.04. Encroachment by vegetation [1] —Vegetation on the boundary line [a] —Right to remove [b] —Right to cut back [2] —Vegetation extending or hanging over the boundary line [a] —Right to cut back [b] —Right to take fruit [1] —Fruit from the branches [2] —Fruit which has fallen to the ground · 9 Richard R. Powell, Powell on Real Property (2002). Chapter 68. Boundaries § 68.11. Trees and other vegetation near boundary [1]—Plants on boundary [2]—Encroaching plants [3]—Vegetation injuring or threatening other owners in ways other than mere encroachment
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COMPILER: |
Lawrence Cheeseman, Supervising Law Librarian, Connecticut Judicial Department, Law Library at Middletown, One Court Street, Middletown, CT 06457. (860) 343‑6560.
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A Guide to Resources in the Law Library
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SCOPE: |
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TREATED ELSEWHERE: |
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DEFINITION:
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· Invasion of right: “The construction and maintenance of such a structure, like the construction and maintenance upon a house of eaves overhanging another's land, is an invasion of right, but not an ouster of possession. Randall v. Sanderson, 111 Mass. 114. The possession of the adjoining proprietor remains unaffected, except that it is rendered less beneficial. The possession and occupancy of the projecting structure has no effect on the ownership of the soil beneath, unless it be maintained under a claim of right for fifteen years, and so should ripen into a perpetual easement.” Norwalk Heating & Lighting Co. v. Vernam, 75 Conn. 662, 664, 55 A. 168 (1903). · Equitable relief as remedy: “It follows that equitable relief was properly claimed and granted. While the plaintiff might have itself removed the nuisance, without appealing to the courts, it was not restricted to reliance upon self-help. Nor had it only a right of action for damages. An injunction might originally have been brought by the plaintiff's grantor to prevent the construction of the projection. This not having been done, the plaintiff could ask for a mandatory injunction to prevent its wrongful continuance.” Ibid. · Mandatory Injunctions: “Since trespass is a possessory action, it is incumbent on the plaintiff to prove possession, actual or constructive, in order to recover. Banks v. Watrous, 136 Conn. 597, 599, 73 A.2d 329. If he relies on constructive possession, as distinguished from actual possession, he must prove, in addition to his title, the absence of actual exclusive possession by another. Radican v. Hughes, 86 Conn. 536, 545, 86 A. 220; Waterbury Clock Co. v. Irion, 71 Conn. 254, 262, 41 A. 827; Dawson v. Davis, 125 Conn. 330, 334, 5 A.2d 703. And if he seeks to enforce his rights by a mandatory injunction, he must show actual possession in himself, since injunctive relief cannot be used to take property out of the possession of one person in order to put it into the possession of another.” Roy v. Moore, 85 Conn. 159, 1665 82 A. 233.” More v. Urbano, 151 Conn. 381, 383-384, 198 A.2d 211 (1964). · On the Boundary Line: “. . . the defendants had constructed the stairs on the adjoining boundary line, thereby impermissibly encroaching on the plaintiff's property.” Kelley v. Tomas, 66 Conn. App. 146, 151, 783 A.2d 1226 (2001).
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FORMS:
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· 1A Am. Jur. Legal Forms Adjoining Landowners (1999). § 8:8. Quitclaim deed curing encroachment § 8:9. Agreement between adjoining landowner—Encroachment of building § 8:11. Agreement between adjoining landowner—Overhanging eaves § 8:12. Agreement between adjoining landowner—Construction of common stairway · 1A Am. Jur. Pleading & Practice Adjoining Landowners (2003). § 65. Complaint, petition, or declaration—Projecting windows overhanging plaintiff’s property—For injunctive relief and damages § 66. Complaint, petition, or declaration—Encroaching wall—For injunctive relief § 67. Complaint, petition, or declaration—Encroaching supports of retaining wall—For injunctive relief § 68. Complaint, petition, or declaration—Archway and wall extend beyond boundary—For injunctive relief § 69. Complaint, petition, or declaration—Encroaching building—For injunctive relief and damage § 70. Complaint, petition, or declaration—Encroaching building—Another form § 71. Complaint, petition, or declaration—Encroaching building and incidental destruction of trees—For injunctive relief and damages § 72. Complaint, petition, or declaration—Encroaching building and fence—Interference with plaintiff’s use of property for business purposes—For injunctive relief and damages § 73. Complaint, petition, or declaration—Defendant’s building extending over plaintiff’s land and leaning against plaintiff’s building—Negligent construction—For injunctive relief and damages § 74. Complaint, petition, or declaration—Encroaching structures causing increased tax assessment—For injunctive relief § 75. Complaint, petition, or declaration—For declaratory judgment and determination that plaintiff has right to remove encroaching portion of building—For injunction and recovery of profits from use of building § 76. Complaint, petition, or declaration—To abate encroaching structure as private nuisance and for damages § 77. Complaint, petition, or declaration—To quiet title to real property pursuant to boundary agreement—Improvements § 78. Complaint, petition, or declaration—To quiet title to real property pursuant to boundary agreement—Another form § 79. Answer—Estoppel to deny boundary § 80. Answer—Defenses—Good faith belief as to nonexistence of encroachment—Excessive hardship to defendant caused by injunctive relief—No irreparable injury suffered by plaintiff § 81. Interrogatories—To determine value of property lost to encroachment § 82. Instruction to jury—Fair market value of land
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WEST KEY NUMBERS: |
· Adjoining Landowners # 9. Encroachments (.5). In general (1). Nature and extent of liability (2). Remedies and procedure in general (3). Damages
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DIGESTS:
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· Dowling’s Digest: Adjoining landowners
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COURT CASES |
· Kelley v. Tomas, 66 Conn. App. 146, 157, 783 A.2d 1226 (2001). “Here, the court fashioned an equitable remedy to meet the needs of both parties. The court found that it would be useless to order the defendants to remove the stairs and restore the plaintiff's property to its original condition because such an action would result in the construction of stairs that would be in violation of the Norwalk building code. The law does not require the doing of a useless act. We note that at no time did the plaintiff seek only the removal of the stairs from his property. Thus, on the basis of the facts that reasonably were found by the court, we conclude that it did not abuse its discretion when it allowed the stairs to remain despite the fact that they encroached on the plaintiff's property.”
“ Our review of the record does not show that the court issued an injunction against the plaintiff. Paragraph eight of the judgment states: "The court entered an order that neither the plaintiff nor the defendants are to interfere with the other's use of the steps, landings and railing located between the two buildings." The plaintiff apparently confuses an order of the court with an injunction. It was within the court's inherent power to issue the order in an effort to effectuate its equitable remedy. "It is axiomatic that the Superior Court, as part of an independent and separate branch of government, has inherent power to do all that is reasonably necessary to enable the court to discharge its judicial responsibilities and to provide for the efficient administration of justice." Ruggiero v. Ruggiero, 55 Conn. App. 304, 307, 737 A.2d 997 (1999). Here, the court did not issue an injunction; it exercised its inherent authority to issue an order that would assist in the discharge of the equitable remedy that it decreed.” Ibid., 158. l Bland v. Bregman, 123 Conn. 61, 66‑67 (1937). “The complaint alleges that the garage of the defendants is built in such a manner that a portion of the building projects over and upon the land of the plaintiff....” · Norwalk Heating and Lighting Co. v. Vernam, 75 Conn. 662 at 664 (1903). Self‑help and injunction. · Nixon v. Harper, 8 Conn. Supp. 8, 10 (1940). “A mandatory injunction to remove the offending structure should not issue. ‘Where .... there has been an innocent mistake .... or laches on the part of the plaintiff, or where the conduct of the defendant was not wilful and inexcusable, and where the granting of the injunction would cause damage to the defendant greatly disproportionate to the injury of which plaintiff complains and it appear that damages will adequately compensate the latter .... it would be inequitable to grant a mandatory injunction.’ Bauby vs. Krasow, 107 Conn. 109, 115. See, also, Waterbury Trust Co. vs. G. L. D. Realty Co., 124 id. 191, 199.”
“With reference to the latter phase of the judgment, it should be said that it is based on the rule found in McGann vs. Hamilton, 58 Conn. 69, 73, concerning the measure of damage for a continuing trespass. ‘The true rule we understand to be, that where real estate is encroached upon, as is claimed in this case, the plaintiff will recover, not the full value of the land, but the damage he sustains in being deprived of its use; and such damage will be limited to past time.’” Ibid., 11.
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ENCYCLOPEDIAS: |
· 1 Am. Jur. 2d Adjoining Landowners (1994). §§ 119-137. Encroachments A. In general § 119. In general § 120. Encroachment as nuisance § 121. Encroachment as ouster; prescriptive right to encroach B. Remedies 1. In general, §§ 122-128 § 122. Action for damages, generally § 123. —Measure of damages § 124. Ejectment § 125. Limitations, generally § 126. Accrual of cause of action § 127. Acquiescence or estoppel § 128. Removal by self-help, generally 2. Injunctive relief; Mandatory injunction, §§ 129-137 Factors determining issuance of mandatory injunction, §§ 131-137 · 2 C.J.S. Adjoining Landowners (1972). §§ 40-57. Encroachments § 40. In general § 41. What constitutes encroachment § 42. Right of adjoining owner in general § 43. Abatement § 44. Actions § 45. —Actions for damages § 46. —Ejectment § 47. —Equitable relief § 48. —Person liable; parties § 49. Amount and measure of damages · Annotation, When Does Cause Of Action Accrue, For Purposes Of Statute Of Limitations, Against Action Based Upon Encroachment Of Building Or Other Structure Upon Land Of Another, 12 ALR3d 1265 (1967). · Annotation, Adverse Possession Based On Encroachment Of Building Or Other Structure, 2 ALR3d 1005 (1965). · Annotation, Mandatory Injunction To Compel Removal Of Encroachments By Adjoining Landowner, 28 ALR2d 679 (1953). · Annotation, Encroachment Of Structure On Or Over Adjoining Property Or Way As Rendering Title Unmarketable, 47 ALR2d 331 ( ). · Real Estate Purchaser’s Rights And Remedies Where Seller Is Unable To Convey Marketable Title, 52 POF3d 429 (1999). § 14. Boundary line encroachments — Proof of unmarketable title due to seller’s inability to remove encumbrances by time of closing § 31. Uncertainty as to location of boundary § 32. Encroachment of building on seller’s property upon adjoining land § 33. Encroachment of structures upon government property § 34. Encroachment of building from adjoining land upon property |
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TEXTS & TREATISES:
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· 2 James H. Backman, A Practical Guide To Disputes Between Adjoining Landowners—Easements (2001). Chapter 10. Trespass to realty between neighboring and adjoining landowners § 10.04. Encroachment by vegetation [1] —Vegetation on the boundary line [a] —Right to remove [b] —Right to cut back [2] —Vegetation extending or hanging over the boundary line [a] —Right to cut back [b] —Right to take fruit [1] —Fruit from the branches [2] —Fruit which has fallen to the ground · 9 Richard R. Powell, Powell on Real Property (2002). Chapter 68. Boundaries § 69.09. Encroachments [1]—Actions for encroachment include trespass and nuisance [2]—Remedies for encroachment [3]—If “intentional” encroachment (Encroacher consented—victim did not), specific relief is generally granted [4]—If victim of encroachment consented, relief is generally denied [5]—If neither party consented, court weighs the equities · 1 Milton R. Friedman, Contracts and Conveyances of Real Property (Fifth ed., 1991). Chapter 4. Marketable Title § 4.15. Encroachments and projections—general § 4.15(a). Encroachments and projections as between adjoining owners—overhead projections as easements § 4.15(a)1. Encroachments as trespass or disseisin § 4.15(a)1A. Self-help § 4.15(a)1B. Damages § 4.15(a)1C. Ejectment § 4.15(a)1D. Equitable remedies § 4.15(b). Encroachments and projections as between vendor and vendee—encroachments on premises under consideration § 4.15(b)1. Encroachment by premises under consideration § 4.15(b)2. Street encroachments § 4.15(b)3. Contractual provisions respecting encroachments
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COMPILER: |
Lawrence Cheeseman, Supervising Law Librarian, Connecticut Judicial Department, Law Library at Middletown, One Court Street, Middletown, CT 06457. (860) 343‑6560.
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