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DOMINIC CACIOPOLI v. JEFFREY LEBOWITZ (AC 32103)
DiPentima, C. J., and Beach and Schaller, Js. Argued May 26--officially released September 6, 2011

(Appeal from Superior Court, judicial district of New Haven, Hon. Robert I. Berdon, judge trial referee.) Frank B. Cochran, for the appellant (defendant). David S. Doyle, for the appellee (plaintiff).

Opinion

BEACH, J. The defendant, Jeffrey Lebowitz, appeals from the judgment of the trial court in favor of the plaintiff, Dominic Caciopoli, finding that the defendant had trespassed on the plaintiff's land and awarding damages. The defendant claims that the court erred by (1) improperly expanding the tort of trespass, (2) denying his motion for judgment, (3) denying his special defenses of waiver and equitable estoppel, (4) finding that the element of intent with respect to the tort of trespass was satisfied and (5) its award of damages. We affirm the judgment of the trial court. The following facts, as found by the trial court, and procedural history are relevant. ``The plaintiff . . . purchased real property located at 490 Three Corners Road in Guilford, Connecticut, in October, 1978. He chose this property because it was isolated and private. The plaintiff's property was surrounded by forest on all sides, except for the area of the lot though which his driveway passed. In May, 2005, the defendant . . . purchased property located at 480 Three Corners Road, which is adjacent to the property owned by the plaintiff. The property line between the two homes was unmarked. The plaintiff's home is more than 100 yards from the property line between the two lots, and the plaintiff's view of the home located at 480 Three Corners Road was obstructed. ``In August, 2005, the defendant hired Tanner's Tree Service, LLC [(Tanner's Tree Service)], to clear standing dead trees from the wooded area between the two homes. The defendant believed these dead trees were on his property because they were in a grassy area located between the two homes that had been maintained by the previous owners of 480 Three Corners Road. The defendant directed Tanner's Tree Service to remove all dead timber, both standing and on the ground, to remove some small saplings and remove some larger trees to provide more sunlight and enlarge the areas surrounding his house. ``Prior to the commencement of this landscaping work, the defendant failed to determine the actual location of the property line between the two homes. He went to the plaintiff's home to speak with him regarding the property line, but was told to return when the plaintiff was home. He did not consult his warranty deed or documents available at the town hall. The defendant discovered a marker near the plaintiff's mailbox and incorrectly assumed this marked the property line. In actuality, the property line is twenty-five feet from the house. When the plaintiff learned of the removal of the trees, he went to the defendant's home. The defendant understood that the plaintiff was irate and that the plaintiff pointed out the actual property line. The next day, Tanner's Tree Service returned to complete the

work on the plaintiff's property. The removal of the trees and brush left the plaintiff with an unobstructed view of the defendant's house. ``On August 30, 2005, the plaintiff sent the defendant a letter, in which he suggested that the plaintiff and the defendant should jointly choose `reasonably mature evergreens' and have them planted to recapture some of the lost privacy. In November, 2005, the defendant paid a nursery to plant three white pine trees on the plaintiff's property to obscure his view of the defendant's home. These trees did little to create a sense of isolation and privacy that the plaintiff had prior to the defendant's trespass. ``In the spring of 2007, the plaintiff had the property line marked. On May 30, 2007, the defendant sent the plaintiff a letter in which he admitted he was mistaken in assuming the location of the property line. On November 13, 2007, the defendant sent another letter to the plaintiff. In that letter, the defendant admitted that he had trees removed that were partly on the plaintiff's property. In the fall of 2007, the plaintiff undertook an extensive landscaping project in a failed attempt to restore his lost privacy. During that project, the trees purchased by the defendant were moved closer to the plaintiff's house.'' In 2008, the plaintiff commenced an action alleging trespass. The defendant filed an answer with special defenses. The plaintiff later filed an amended complaint adding a count seeking treble damages pursuant to General Statutes

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Connecticut Law