University of Vermont AAHS

Dasilva v. Barone

Connecticut Superior Court
UNPUBLISHED,
2003 WL 21498924
June 12, 2003

For the Appellate Court opinion in this lawsuit, go to Dasilva v. Barone

Summary of Opinion

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.

Text of Opinion

 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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