208 Conn.App. 255
Conn. App. Ct.2021Background
- Plaintiffs (Ellis and Nicole Robinson) and defendants (William and Erika Tindill) own adjacent lots separated in part by an older chain‑link fence; each side had privacy fences built inches apart, sandwiching the chain‑link fence.
- In July 2017 William Tindill extended the defendants’ privacy fence, removed portions (corner post and top rod) of the chain‑link fence without plaintiffs’ permission, and built a 3.5‑foot split‑rail fence that, per a licensed survey, encroached a few inches onto the plaintiffs’ property.
- Plaintiffs sued for declaratory and injunctive relief and damages for trespass; defendants asserted special defenses invoking the divisional fence statute, Conn. Gen. Stat. § 47‑43, and argued permissible intrusion under that statute.
- The trial court granted plaintiffs’ motion for summary judgment as to liability (finding both defendants liable for trespass and William liable for conversion regarding the chain‑link parts), and later ordered removal/relocation of the split‑rail fence and awarded nominal damages.
- On appeal defendants challenged (1) classification of the fence as a non‑divisional/trespass, (2) Erika’s liability though she did not physically install the fence, and (3) William’s conversion finding. The appellate court affirmed in part and reversed as to conversion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the fence was a "divisional fence" under § 47‑43 (so not trespass) | Fence is not a divisional fence because its middle is not on the dividing line; therefore it is trespass | Fence is within the statutory permitted width/overhang and should be treated as a divisional fence despite slight misalignment | Statute requires the middle line to be on the dividing line; fence was not centered → not a divisional fence; trespass affirmed |
| Whether Erika Tindill can be held liable for trespass as owner of a fixture | Owner status makes the fence (a fixture appurtenant to her land) her responsibility; she can be liable even if she did not personally build it | She did not authorize or act through agency; this theory was not properly pleaded against her | Appellate court declined to entertain defendants’ preservation/briefing challenge; Erika’s liability as owner‑of‑fixture stands under the record (defendants failed to preserve argument) |
| Whether William Tindill was properly found liable for conversion for removing chain‑link parts | Plaintiffs characterized the claim as trespass and alleged William destroyed plaintiffs’ property; court found conversion over removed fence parts | Conversion was not pleaded or briefed; defendants lacked notice and opportunity to defend against conversion | Reversed: conversion cannot stand because plaintiffs never pleaded or argued conversion; remand to vacate conversion finding |
Key Cases Cited
- Grosby v. Harper, 228 A.2d 563 (1966) (a fence not centered on boundary is not a divisional fence)
- Hi‑Ho Tower, Inc. v. Com‑Tronics, Inc., 761 A.2d 1268 (Conn. 2000) (definition of conversion: unauthorized assumption and exercise of ownership over another's property)
- Travelers Ins. Co. v. Namerow, 807 A.2d 467 (Conn. 2002) (pleadings construed broadly to give effect to the general theory and avoid surprise when notice is adequate)
- Stewart v. King, 994 A.2d 308 (Conn. App. 2010) (elements required to establish prima facie conversion)
- Burton v. Dept. of Environmental Protection, 256 A.3d 655 (Conn. 2021) (issues abandoned where briefing is cursory or lacks analysis/authority)
- Noonan v. Noonan, 998 A.2d 231 (Conn. App. 2010) (preservation rule: appellate review requires the issue to have been distinctly raised and decided below)