2005 Ct. Sup. 6787
No. CV03-0483645-SConnecticut Superior Court Judicial District of New Haven at New Haven
March 31, 2005

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]


This lawsuit concerns a dispute between two commercial landowners over whether a portion of one party’s land is subject to a prescriptive easement in favor of the other. The verified complaint of the plaintiff, 299 Welton, LLC, is in three counts. The first count alleges that for more than fifteen years plaintiff has used a portion of paved land owned by the defendant, Volpe Technologies, Inc., to allow trucks to back into and depart from the loading dock on plaintiff’s property and has thereby acquired an easement over that paved area. The second count alleges, that, by erecting a fence along the paved area, Volpe Technologies has obstructed plaintiff’s right of way. In the third count, plaintiff alleges that the fence constitutes a malicious erection of a structure in violation of General Statutes § 52-480. The plaintiff seeks a declaratory judgment establishing its claimed right of way, an injunction against the fence and damages.

By pleading dated June 18, 2004, Volpe Technologies filed its Amended Answer and Counterclaim. The answer includes a statement made pursuant to General Statutes § 47-31 that it claims a fee simple interest over the disputed land derived from a warranty deed recorded upon the Town of Hamden land records. The counterclaim is in four counts. Count one seeks to quiet title by a judgment determining the rights of the parties in the disputed property. Count two alleges that the filing of the verified complaint constituted slander of title. Count three alleges tortious interference with contract and asserts that Volpe Technologies received an offer to purchase a portion of the property from a third party, but the plaintiff’s false claim of prescriptive easement caused the third party to withdraw his offer to purchase. Count four alleges that the plaintiff’s use of CT Page 6788 its own property has caused damage to Volpe Technologies’ property by damaging vertical metal poles, and constitutes a private nuisance.

In the present motion, the plaintiff moves to strike all four counts of the counterclaim. At oral argument, the plaintiff withdrew its motion to strike as to the § 47-31(d) statement and count one of the counterclaim. As to counts two and three of the counterclaim, the plaintiff asserts that they do not arise out of the same transaction that is the subject matter of the first-party complaint. The plaintiff further asserts that as to the counterclaim’s count four, the plaintiff cannot be liable for private nuisance due to a cause created by Volpe Technologies.

For the reasons set forth below, the motion to strike counts two, three and four of the counterclaim is denied.

DISCUSSION A. Slander of Title/Tortious Interference with Contract
The plaintiff’s motion to strike counts two (slander of title) and count three (tortious interference with contract) is based on its assertion that these claims do not arise out of the same act or transaction that is the subject matter of its complaint. More specifically, the plaintiff asserts that the complaint alleges acts of the plaintiff (using the paved area on the corner of Volpe Technologies’ property) and acts of Volpe Technologies (erecting a fence). The plaintiff further asserts that the counterclaim’s slander of title and tortious interference of contract counts derive not from those acts, but rather from the plaintiff’s filing of the verified complaint. The plaintiff asserts that this distinction requires that counterclaim counts two and three be stricken.

As relevant to the present case, Practice Book § 10-10 provides as follows:

In any action for legal or equitable relief, any defendant may file counterclaims against any plaintiff . . . provided that each such counterclaim . . . arises out of the transaction or one of the transactions which is the subject matter of CT Page 6789 plaintiff’s complaint.

Our Supreme Court has stated that “the `transaction test’ is one of practicality, and the trial court’s determination as to whether the test has been met ought not to be disturbed except for an abuse of discretion . . . where the underlying purpose of Practice Book § 78 [now 10-10], to wit, judicial economy, avoidance of multiplicity of litigation, and avoidance of piecemeal disposition of what is essentially one action, are thwarted rather than served by the filing of the [counterclaim], the [counterclaim] may properly be expunged.” Wallingford v. Glen Valley Associates, Inc., 190 Conn. 158, 161 (1983), citin Jackson v. Conland, 171 Conn. 161, 166-67 (1976). It would appear therefore, that if the counterclaim advances the underlying purposes of Practice Book § 10-10 articulated above, it should be retained.

An older Connecticut case stated that,

The test is whether the transactions [alleged in the complaint and counterclaim respectively] are distinct and independent or are connected in the sense that the claim under the [counterclaim] is so related to that made in the complaint that consideration of the former is essential to a full adjudication of the parties’ rights as to the latter.

Puleo v. Goldberg, 129 Conn. 34, 37 (1942).

Contrary to Practice Book § 10-10, the corresponding federal rule allows so-called permissive counterclaims, that is, counterclaims that do not arise out of the same transaction as is the subject matter of the complaint. Rule 13(b), Federal Rules of Civil Procedure. One commentator on the Connecticut rules has observed that, “In practice, . . . practitioners and judges are edging ever closer to allowing permissive counterclaims.” Dupont on Connecticut Civil Practice, § 10-10, 4, p. 441.

Such “edging” is unnecessary to resolve the issue in the present case. The heart of the plaintiff’s case is that it obtained a prescriptive easement over a paved corner of the defendant’s driveway. The heart of the counterclaim is that the defendant holds absolute title in fee simple to that same paved corner. The tort counts in both the complaint and counterclaim turn on the resolution of this disputed question of title. CT Page 6790

This court finds that the transaction test described above has been met and, accordingly, the motion to strike the counterclaim’s counts two and three must be denied.

B. Private Nuisance
The plaintiff’s motion to strike the counterclaim’s count four (private nuisance) is based on its assertion that the cause of the nuisance is not the plaintiff’s use of the disputed portion of the driveway, but from the defendant’s erection of the fence that encloses the disputed area.

The Restatement’s definition of private nuisance is as follows:

A private nuisance is a nontrespassory invasion of another’s interest in the private use and enjoyment of land.

4 Restatement (Second) Torts § 821D (1979). The law of private nuisance springs from the general principle that “[i]t is the duty of every person to make a reasonable use of his own property so as to occasion no unnecessary damage or annoyance to his neighbor.” Pestey v. Cashman, 259 Conn. 345, 352 (2002), citin Nailer v. C.W. Blakeslee Sons, Inc., 117 Conn. 241, 245
(1933). The essence of a private nuisance is an interference with the use and enjoyment of land. W. Prosser W. Keeton, Torts (5th Ed. 1984) § 87, p. 619.

Our Supreme Court has stated that in order to recover damages in a common-law private nuisance cause of action, a plaintiff must show that the defendant’s conduct was the proximate cause of an unreasonable interference with the plaintiff’s use and enjoyment of its property. Pestey v. Cushman, supra, 259 Conn. 361.

Given this legal framework, the issue in the present case is whether the allegations in the private nuisance count are sufficient to withstand a motion to strike. It is, of course, axiomatic that for purposes of a motion to strike the moving party admits all facts well pleaded. RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 383 n. 2 (1994). Moreover, the court must construe the facts in the counterclaim most favorably to CT Page 6791 Volpe Technologies. Faulkner v. United Technologies Corp., 240 Conn. 576, 580 (1997). In ruling on a motion to strike, the court is limited to the facts alleged in the complaint. Id.

The counterclaim’s count four alleges that Volpe Technologies is the absolute owner of the disputed area of land and that it properly erected metal poles along the boundary between its property and plaintiff’s property. The count further alleges that by allowing delivery trucks to use plaintiff’s property in a fashion that damaged the poles, the plaintiff has unreasonably interfered with Volpe Technologies’ use of its property.

Construing these allegations in favor of Volpe Technologies, as the court must, they adequately plead a cause of action for private nuisance. Of course, if as plaintiff asserts, the fence is obstructing property burdened by a prescriptive easement, there is no private nuisance. That issue, however, cannot be resolved on a motion to strike.

The motion to strike the counterclaim’s count four is denied.

For the reasons set forth above, the motion to strike the §47-31 statement and counterclaim count one (quiet title) has been withdrawn and the motion to strike counterclaim counts two (slander of title), three (tortious interference with contract) and four (private nuisance) is denied.

So Ordered.

Devlin, J. CT Page 6792