2010 Ct. Sup. 11034
No. TTD CV 08 5003381 SConnecticut Superior Court Judicial District of Tolland at Rockville
May 20, 2010
CORRECTED MEMORANDUM OF DECISION
KLACZAK, J.T.R.
The plaintiffs bring this action in three counts: absolute private nuisance, negligent private nuisance and trespass. They claim that the defendant is unlawfully mooring his boat in Coventry Lake in the plaintiffs’ exclusive littoral area which they possess as lakefront owners of property on the lake.
They seek to enjoin the defendant from doing so and also seek damages for the alleged inference with their property rights.
This case was tried on August 12, 2009. The plaintiffs were represented by counsel while the defendant was self-represented.
The parties submitted a “Joint Statement of Stipulated Facts, as follows:
1. Plaintiffs, John L. Zeppa and Deborah B. Zeppa, are individuals and residents of Coventry, Connecticut.
2. The Plaintiffs own a parcel of undeveloped waterfront property, with frontage on Coventry Lake (aka Lake Wangumbaug), at the eastern side of the intersection of Bellevue Drive and West Shore Drive in Town of Coventry, Connecticut (the “Property”).
3. The Plaintiffs also own the abutting parcel to the north of the Property, which is improved with a single family residence and has a street address of 93 West Shore Drive (the “Zeppa Residence”).
4. The Zeppa Residence is also a waterfront parcel, fronting on Coventry Lake.
5. The Zeppa Residence is improved with a dock.
6. Defendant, Mark P. Lonabaugh (“Lonabaugh”) is the owner of certain CT Page 11035 real property in the town of Coventry, Connecticut, which property is improved with a single family residence and has a street address of 104 Bellevue Drive (the “Lonabaugh Property”).
7. The Lonabaugh Property is not a waterfront parcel and does not front on Coventry Lake.
8. Lonabaugh does not own any real property with frontage on Coventry Lake.
9. The Plaintiffs never gave Lonabaugh their permission to place a mooring in the area waterward of the Property and the Zeppa Residence.
10. In 2006, the Plaintiffs complained to Lonabaugh about his attempt to place a mooring in the area waterward of the Property and the Zeppa Residence and again told him that he did not have their permission or any right or authority to place a mooring in the area waterward of the Property and the Zeppa Residence.
11. In 2006, Lonabaugh ignored the complaints by the Plaintiffs and did not remove the mooring.
12. The mooring placed by Lonabaugh in 2006 remains in the same general location to this day but is 20 feet further out.
13. During the summers of 2006, 2007, 2008, and 2009, Lonabaugh has kept a 2005 Chaparral 190 motorboat berthed to the mooring.
The plaintiffs’ witnesses included both Mr. And Mrs. Zeppa, Bruce Macaro, a past president of the Manchester Rod and Gun Club which owned lakefront property on Coventry Lake for many years, and Richard Meehan, a Connecticut licensed land surveyor who has done hundreds of lakefront surveys, many of which included surveys of littoral rights also on Coventry Lake. He has testified in approximately fifteen trials and was qualified as an expert in surveying waterfront property including surveys to determine littoral rights.
The defendant’s sole witness was his wife, Rosemarie Lonabaugh who testified as a fact witness. The defendant elected not to testify but relied on argument to make his case for mooring his boat at its location in front of the plaintiffs’ dock.
Factual Discussion
In 2006, the defendant placed a mooring for his jet-ski (Exhibit 6) CT Page 11036 over the objections of the Zeppas. He later bought a run-about and moored that boat in the locations depicted in Exhibits 7, 8, 9, 10, 11, and 12. These exhibits also depict the plaintiffs’ dock and their own boat. In July 2009, Mr. Lonabaugh moved his mooring about 20′ farther out into the lake but it is still in the same general location. (Stip. No. 12.)
The location of the mooring impacted the plaintiffs’ use of their boat in the following ways. It makes it difficult for the plaintiffs to water ski from the shore because they have to avoid the defendant’s boat as well as people who might be swimming from the defendant’s boat.
In one instance the wind came up and the mooring wasn’t holding. This caused the defendant’s boat to drift toward the plaintiffs’ dock and their boat. Also, when leaving their dock and returning to it the plaintiffs have to maneuver around the moored boat. Its proximity to the dock interferes with casting off line from the dock. The present location of the mooring (20′ farther away) does not make any appreciable difference and, also, the defendant does not believe he was required to change the mooring location and has the right to leave it where it was. It is also noted that a moored boat can move in a circle the length of the mooring line depending on wind direction (this is called the swing radius).
Discussion of Legal Issues
A. Littoral Rights: It is well established that an owner of waterfront property which is bounded by a body of water, implicitly has littoral rights to the land under the water, impliedly his littoral rights to the land under the water. Ace Equipment Sales, Inc., v. Buccino, 273 Conn. 217
(2005). Stefanoni v. Duncan, 282 Conn. 686 (2007).
It is left for the Court to determine the scope of those littoral rights. In this case the credible and unrefuted testimony of Richard Meehan provided the necessary evidence for the Court to answer that issue.
First of all Mr. Meehan completed a survey to “A-2” standards, which is the highest standard for accuracy within the surveying profession.
He further testified as to the methodology he used to determine the limits of the plaintiffs’ littoral rights. Those littoral rights extend from the plaintiffs’ property to the “thread” (Reference Exhibit 15), which is a point lying halfway between an island depicted in Exhibit 15 and the shoreline of the plaintiffs’ property. Through a computer analysis using mathematical values he determined that the plaintiffs’ CT Page 11037 littoral rights extend 561 feet from the northern most shore line of the plaintiffs’ property to the “thread,” and 599 feet from the southern most shore line of the plaintiffs’ property to the “thread.”
The Court concludes that the defendant’s mooring of his boats in the proximity of the plaintiffs’ dock and waterfront (even twenty feet further away) is an unwarranted interference with the plaintiffs’ littoral rights for the reasons stated herein. The defendant created both a safety issue and impeded the plaintiffs’ right to enjoy their swimming, fishing and boating activities.
The Court, therefore, enjoins the defendant further interference with the plaintiffs’ littoral rights within the area depicted in Exhibit 15.
These findings also support a finding of private nuisance. His placing of the mooring was intentional and in defiance of the plaintiffs’ rightful mooring. Pesty v. Cushman, 259 Conn. 345 (2002).
The defendant also committed a trespass by intentionally intruding or entering onto the plaintiffs’ possessory littoral interest in the lake as described, all to the injury of the plaintiffs.
Discussion of Damages
Deborah Zeppa testified that, in her opinion, the value of her property was diminished by some $65,000. While a property owner may, under Connecticut case law, testify as to the value of their own property her testimony is not supported by any reasonable explanation. For example, there was no evidence that her house was on the market and that she lost a sale because of the mooring. On the other hand, there was certainly a negative impact on the plaintiffs’ enjoyment of their property since 2006 when the defendant began to moor his boats where he did. The plaintiffs are entitled to compensation for the interference with their property rights.
The Court is of the opinion that fair and reasonable damages of $600 per year for four years is appropriate.
Conclusion and Judgment
The Court finds for the plaintiffs in each Count and awards damages of $2,400.
The defendant is enjoined from interfering with the plaintiffs’ CT Page 11038 littoral rights as depicted in exhibit 15, to the “thread” which is 561′ feet from the plaintiffs’ northernmost shore point and 599 feet from their southernmost shore point.
The plaintiffs may submit a bill of costs in accordance with Connecticut Practice Book provisions.
CT Page 11039