Hurlburt v. DeRosa
For a trespass claim seeking injunctive relief, the plaintiff was required to present evidence of irreparable harm and lack of an adequate remedy at law. The plaintiff, Scott Hurlburt, deposited fill on his property raising the elevation, modified a swale and created a hole, partially on property of the defendants including Scott Derosa. Hurlburt connected gutters from his house to a concrete pipe running into the hole. Another pipe in the hole leads under the defendants' property. The defendants then raised the elevation of part of their lot above that of the plaintiff. The plaintiff brought suit against the defendants claiming that the defendants' actions interfered with the plaintiff's use of a deeded drainage easement and increased surface waters on his property. At trial, the plaintiff presented evidence of a 1937 deed referenced in his property's legal description stating that the parties, their heirs and assigns "shall cooperate in opening the natural water course extending over the piece hereby conveyed [lot 133 now owned by the defendants] so as to drain any surface water from … [lots including 123, the plaintiff's lot] … and in maintaining said water course to so drain said [l]ots." The trial court granted the defendants' motion for a judgment of dismissal for failure to make out a prima facie case. The plaintiff appealed claiming, first, that the court misapplied the legal standard required for a dismissal under Practice Book §15-8. The Appellate Court affirmed the judgment. The trial court properly dismissed counts based on the claimed drainage easement, including intentional and negligent obstruction of the drainage easement, for failure to make out a prima facie case. The record supported the trial court's determination that the plaintiff failed to present sufficient evidence to establish his right to enforce the easement because he failed to present evidence that a natural watercourse was ever opened or on the defendants' property. The deed did not create a general right to drain surface waters over lot 133; the drainage had to be effectuated through the use of the natural watercourse. The trial court properly dismissed trespass counts seeking injunctive relief and a count requesting a declaratory judgment to quiet title. The record supported the court's finding that the plaintiff's claim was at best anticipatory with no evidence of actual damage or imminent harm.