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For the Appellate Court opinion in this lawsuit, go to Dasilva v. Barone
Plaintiffs Dasilva are neighbors
of the defendants Barone. The
Barones keep horses on their property. In
this lawsuit, the plaintiffs seek a court order prohibiting that practice on the
ground it violates a provision in the deed by which the defendant acquired his
property—which prohibits the keeping of every animal on the property except
normal domestic pets. In this
opinion, the trial court says that a horse is not a normal domestic pet and
orders the defendants not to keep horses on their property.
The multiple plaintiffs are owners of property in the town of
Fairfield and seek a permanent injunction preventing the defendants from
bringing horses onto the property and from maintaining or constructing
structures for stables in conjunction with the maintenance of the horses. Some
of the plaintiffs also seek an injunction asserting that the defendants are
maintaining a nuisance.
After their purchase of their property, the defendants brought
horses onto the property and kept them in a metal corral with a tent‑like
enclosure. At the time the defendants purchased their property they were unaware
that the deed by which they obtained the property contained restrictions. The
defendants are, however, on constructive notice of the restrictions.
Mannweiler v. LaFlamme, 65 Conn.App. 26, 34 (2001). The restrictions read as
follows:
(1) Said
premises shall be used solely for private residential purposes and no building
or structure may be constructed, maintained or permitted to exist on said
premises other than a private residential structure designed for and to be
occupied by one family, and out buildings or structures usually incident to
private residences.
(2) No
animals or pets may be kept on premises said except normal domestic pets such as
cats or dogs and no animal may be kept for breeding purposes.
A deed by which the defendants obtained their property also
contained the following statement:
The
restrictions as cited above are intended to cover the lot here and being
conveyed and it is not the Grantor's intent that they shall bind any other
property of the Grantor forming a part of the map described above unless
specifically referred to in future deeds of conveyances of said property by the
Grantor.
The defendants maintained horses on the property for a period
of time but removed the horses prior to the onset of the winter months. The
defendants have expressed an intention to return horses to the property and to
erect a stable to house and maintain the horses. The plaintiffs seek to enforce
the restrictive covenant preventing the defendants from maintaining the horses
on the property, asserting that horses are not a normal domestic pet.
The defendant's lot was originally part of a 22‑lot
subdivision prepared by the Scot‑Allan (Scot‑Allan) Corporation
under a map approved by the Fairfield Planning Commission. Subsequent
conveyances were made with reference to that map. 15 of the 22 lots of the
subdivision were conveyed by Scot‑Klan to Treasure Homes, Inc. (Treasure
Homes) who is the seller of the various lots to individual buyers. The deed
restrictions on the various properties were placed by Treasure Homes. George
Bossert was president of both Scot‑Allan and Treasure Homes. Of the seven
remaining lots not conveyed to Treasure Homes, four were conveyed to the Ingham
Hill Corporation, two were lost to foreclosure and were transferred by committee
deed without restrictions and one was conveyed to Park Lane Corporation without
restrictions.
The one deed from Scot‑Allan to Ingham Hill Corporation
transferring four lots contains a restrictive covenant with respect to private
residence and structures but no other restriction. The respective deeds from
Scot‑Allan to Treasure Homes were quitclaim deeds while deeds from
Treasure Homes to respective buyers were warranty deeds. There are some deeds on
the chain of title which were quitclaim deeds in which it is not customary to
recite restrictions. Other deeds, usually warranty deeds, either recited
restrictive covenants or made reference to restrictive covenants. The deed from
Scot‑Allan to Ingham Hill Corporation also contains the reference that the
cited restrictions are not intended to bind any other property of the Grantor
unless specifically referred to in fixture deeds.
Of the 15 deeds from Treasure Homes one deed, to lot 25,
contains no restrictive covenants. Three other deeds initially contained
restrictions but the restrictions were crossed out or altered in whole or in
part before they were recorded. The court cannot form any opinions one way or
the other with respect to cross‑outs or the reasons therefore or when they
were performed or by whose authorization.
"In general restrictive covenants fall into three
classes: (1) mutual covenants in deeds exchanged by adjoining landowners; (2)
uniform covenants contained in deeds executed by the owner of property who is
dividing his property into building lots under a general development scheme; and
(3) covenants exacted by a Grantor from his Grantee presumptively or actually
for the benefit and protection of this adjoining land which he retains ... With
respect to the third class of covenants, the original Grantor, who is the owner
of the property, benefitted and his assigns may enforce (the covenant) against
subsequent purchasers of the property burdened. If the restrictive covenant is
for the benefit of the remaining land of the Grantor, it is an easement running
with the land and may be enforced by a subsequent purchaser of the remaining
land against the prior Grantee and his successors in title." (Citations and
internal quotations marks omitted.) Grady
v. Schmitz, 16 Conn.App. 292, 296 (1988).
"There are several factors that help to establish the
existence of a common grantor's intent to develop the land according to a
uniform plan. These factors include (1) the common grantor's selling or stating
an intention to sell an entire tract of land, (2) the common grantor's
exhibiting a map or plot of the entire tract at the time of the sale of one of
the parcels, (3) the actual development of the tract in accordance with the
restrictions, and (4) a substantial uniformity restrictions imposed in the deeds
executed by the common Grantor."
Contegni v. Payne, 18 Conn.App. 47, 53 (1989).
To satisfy the factor of uniformity "it is not necessary
that the restrictions in every deed be found to be identical, as long as the
scheme of creating a uniform subdivision is still apparent." Contegni v. Payne, supra, at 57. A reservation by the grantor of a
power to approve exceptions to restrictive covenants does not prevent a finding
of a uniform plan but is merely a factor to be considered. Nelle v. Lock Haven Homeowners' Ass'n, Inc., 413 So .2d 28, 29
(Fla.1982).
Excluding the foreclosed lots and the altered deeds, all the
lots, but one, contain restrictions. The court therefore finds that it is
"more likely than not" that there was an intention to establish a
uniform plan. See Contegni v. Payne,
supra, at 58. As such, the defendants are subject to the deed restriction
contained in the deed by which they acquired the property. A horse is not a
"normal domestic" pet. Kaeser v.
Zoning Board of Appeals, 218 Conn. 438, 439, 443 (1991). Accordingly, the
defendants may not keep horses on the property and they may not construct or
maintain a structure to house the horses.
Some of the plaintiffs claim the odor from the horses as well
as the noise of horses bumping into the metal corral at night constitutes a
nuisance.
"[I]n
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 his or her
property. The interference may be either intentional; ... or the result of the
defendant's negligence ... Whether the interference is unreasonable depends upon
a balancing of the interests involved under the circumstances of each individual
case. In balancing the interests, the fact finder must take into consideration
all relevant factors, including the nature of both the interfering use and the
use and enjoyment invaded, the nature, extent and duration of the interference,
the suitability for the locality of both the interfering conduct and the
particular use and enjoyment invaded, whether the defendant is taking all
feasible precautions to avoid any unnecessary interference with the plaintiff's
use and enjoyment of his or her property, and any other factors that the fact
finder deems relevant to the question of whether the interference is
unreasonable. No one factor should dominate this balancing of interests; all
relevant factors must be considered in determining whether the interference is
unreasonable." Pesty v. Cushman,
259 Conn. 345, 361 (2002).
The testimony establishes that the defendants frequently
cleaned the area in which the horses were maintained. A neighbor also testified
that she was frequently on the property of the defendant and did not detect any
odors. While the horses may have bumped into the metal corral occasionally at
night, the court cannot find that the condition was unreasonable. Given the
rural area in which the parties live, the court cannot find that the use of the
land by the defendants was unreasonable. Accordingly, the request for an
injunction on the grounds of maintaining a nuisance is denied.
A permanent injunction is hereby issued enjoining the
defendants Richard J. Barone and Sharmaine Barone from maintaining horses and
from building a structure to house horses on the property known as 260 Gilbert
Highway in the Town of Fairfield.
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