Month: November 2020

‘‘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); see also Herbert v. Smyth, 155 Conn. 78, 81, 230 A.2d 235
(1967). 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.’’ Nailor v. C. W. Blakeslee & Sons, Inc., 117 Conn. 241, 245, 167 A. 548 (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.

The common situation occurs where a neighbor of a property owner causes a situation in which a bad smell or loud noises affects another property owner. If someone physically enters a property, this is trespass, not a nuisance.

According to the Restatement (Second) of Torts, a plaintiff must prove that: (1) there was an invasion of the plaintiff’s use and enjoyment of his or her property; (2) the defendant’s conduct was the proximate cause of the invasion; and (3) the invasion was either intentional and unreasonable, or unintentional and the defendant’s conduct was negligent or reckless. 4 Restatement (Second), supra, § 822.

‘[C]onsideration must be given not only to the interests of the person harmed but also [to] the interests of the actor and to the interests of the community as a whole.’’ 4 Restatement (Second), supra, § 826, comment (c); see also Walsh v. Stonington Water Pollution Control Authority, 250 Conn. 443, 456–57, 736 A.2d811 (1999). ‘‘Determining unreasonableness is essentially a weighing process, involving a comparative evaluation of conflicting interests . . . .’’ 4 Restatement(Second), supra, § 826, comment (c) ( A jury considers all relevant factors to determine if a use is reasonable or unreasonable).

“Courts have often found the existence of a nuisance on the basis of unreasonable use when what was meant is that the interference was unreasonable.” Prestey v. Cushman 259 Conn. 345 at 360 (2002)

It is possible to prove that a defendant’s use of his property, while reasonable, nonetheless constitutes a common-law private nuisance because it unreasonably interferes with the use of property by another person. That was the situation in Walsh v. Stonington Water Pollution Control Authority, 250 Conn. 443 ( a common situation can be where a use is legal, but still is unreasonably – such as farm).

If you are having problem with your neighbors, who are using their property in a way which causes loud noises or bad smells, please feel free to contact Attorney Singer.

Attorney Robert M. Singer

2572 Whitney Avenue, Hamden, CT 06518,

203-248-8278 rsingerct@yahoo.com

Serving Hamden, New Haven County and all of Connecticut

Samuel S. Stone v. Joseph A. Rosenfield et al provides an excellant overview of the basis for a mechanics lien. 141 Conn 188 (1954).

If any person shall have a claim for more than ten dollars for materials furnished or services rendered in the construction, raising, removal or repairs of any building or any of its appurtenances… such building, with the land on which it stands, shall be subject to the payment of such claim.” The purpose of the statute is to give a contractor security for labor and material. The statute must be construed in such a way as to render the lien it provides for some value. New Haven Orphan Asylum v. James A. Haggerty Co., 108 Conn. 232, 238, 142 A. 847

The installation of fixtures in a building gives rise to a lien under the statute only if the fixtures become a part of the realty, that is, only if they are permanent fixtures. Stockwell v. Campbell, 39 Conn. 362, 364; see Rose v. Persse & Brooks Paper Works, 29 Conn. 256, 267; Abbadessa v. Puglisi, 101 Conn. 1, 3, 124 A. 838. (the key word is permanent).

“[I]t is essential to constitute a fixture that an article should not only be annexed to the freehold, but that it should clearly appear from an inspection of the property itself, taking into consideration the character of the annexation, the nature and the adaptation of the article annexed to the uses and purposes to which that part of the building was appropriated at the time the annexation was made, and the relation of the party making it to the property in question, that a permanent accession to the freehold was intended to be made by the annexation of the article.” Capen v. Peckham, 35 Conn. 88, 94; Lesser v. Bridgeport-City Trust Co., 124 Conn. 59, 63, 198 A. 252. (The court looks to the intent at the time that the article is attached to the property). (There must be an intent that there be a permanent attachment to the property).

In the case of Stone v. Rosenfield, there was an issue of electrical work being performed on a building. The plaintiff did some work for running a laundry business and for lighting purposes. Unfortunately for the plaintiff, the court found that this type of work did not result in any structural changes so it could obtain no lien.

If you have any questions about a mechanic’s lien in Connecticut, please feel free to contact

Attorney Robert M. Singer

2572 Whitney Avenue, Hamden, CT 06518

203-248-8278 rsingerct@yahoo.com

Serving New Haven County and all of Connecticut