Dalton v. BuaDalton v. Bua
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Is a hedge a “structure”? That question is presented by the motion to strike now before the court in a case alleging violation of Connecticut’s “malicious structure” statutes,
*646 The plaintiffs, Peter and Maureen Dalton, 1 and the defendants, Nicholas and Frieda Bua, live across from each other on Hotchkiss Lane in Madison. The complaint (which, for purposes of this motion, must be taken as true) alleges that the Bua property contains two hedges. The hedges were approximately four feet high in 1989. The complaint asserts that, out of animosity, the Buas “have allowed [one hedge] to grow to a height of eight to nine feet along Hotchkiss Lane directly across from the Dalton [property], creating a visual barrier that now obstructs and hinders the plaintiffs from viewing Long Island Sound from their property.”
This action was commenced by service of process on December 7, 2002. The complaint consists of a single count and alleges a violation of
The motion to strike now before the court was filed on January 16, 2003. The motion was heard on March 3, 2003.
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Our Supreme Court has had occasion to consider the meaning of the term “structure” in a different statutory context. In Hendryx Co. v. New Haven, 104 Conn. 632, 635, 134 A. 77 (1926), the court held that an overhead conveyor was a “structure” within the meaning of a building code provision that required a permit “ ‘[b]efore tihe erection, construction or alteration of any building or structure. ’ ” In holding that the conveyor in question fell under this ordinance, the court defined the term “structure” in what it described as the term’s “widest sense.” Id., 640. Under that broad definition, the court, quoting the Century Dictionary, stated that a “structure” “includes ‘any production or piece of work artificially built up, or composed of parts and joined together in some definite manner.’ ” Accord Black’s Law Dictionary (7th Ed. 1999) 1437, defining “structure” as “[a]ny construction, production, or piece of work artificially built up or composed of parts purposefully joined together.” Hendryx Co. opines that this definition includes “many forms of stuctures . . . which are not *648 in any sense independent buildings, as, for example, bay windows, signs attached to the sides or roof of a building, passways, bridges or arches between buildings, all forms of structure in mines, billboards, platforms and staging.” Hendryx Co. v. New Haven, supra, 641. The court, however, has since held that even this broad definition is not limitless. See Alderman v. Hanover Ins. Group, 169 Conn. 603, 609, 363 A.2d 1102 (1975). An obstruction that is not “artificially built up” is not a “structure.”
The walls and fences at issue in the malicious structure cases decided since 1867 have been constructions built by persons. When a construction is malicious, the law says, “Don’t build it.” Hedges, however, grow naturally. There is no suggestion that the hedge in question here was maliciously planted. The suggestion, rather, is that it has maliciously been allowed to grow. (The Daltons seem not to mind a four-foot hedge; it is an eight-foot or nine-foot hedge that bothers them.) Rather than, “Don’t build it,” the Daltons want the law to say, “You must trim it.” This is a significant difference. The complaint is not that the Buas have done something. The complaint, rather, is that they have not done something. WTiatever the problems of the action/ inaction distinction in the tort or criminal law; see State v. Miranda, 245 Conn. 209, 715 A.2d 680 (1998); that distinction lies at the textual heart of the malicious structure statutes in question here. These statutes prohibit malicious “structures” from being “erected.” They do not require naturally growing plantings to be affirmatively trimmed.
The Daltons argue that the effect of the Buas’ hedge is similar to that of the traditional spite fence — it blocks their view. While this may be the case, it does not make the malicious structure statutes they have invoked applicable to their problem. Hedges are rows of trees, and trees are everywhere. Many trees are tall, bushy, and entirely capable of blocking views. The natural *649 growth of trees is an inescapable fact of life. The law is reluctant to compel possessors of land to alter the natural condition of their property; see Sawicki v. Connecticut Ry. & Lighting Co. v. New Haven, 129 Conn. 626, 633, 30 A.2d 556 (1943); and the courts should be reluctant to interpret ancient statutes like those before it now to impose such a new duty. A statutory duty potentially extending to every tree owner in the state must be imposed by the legislature.
For the reasons stated, a hedge is not a “structure” within the meaning of Connecticut’s malicious structure statutes. This conclusion is consistent with New York decisional law holding that hedges are not “structures” for purposes of New York’s analogous statute, N.Y. Real Property Actions and Proceedings Law § 843 (McKinney 1979). Downe v. Rothman, 215 App. Div. 2d 716, 717, 627 N.Y.S. 2d 424 (1995).
The motion to strike is granted.
Notes
The complaint names a separate set of landowners, Elliott and Charlotte Brotz, as additional plaintiffs. The summons, however, names only the Daltons as plaintiffs, and no appearance has been filed for the Brotzs. The argument at the hearing was made only on behalf of the Daltons. Consequently, only the allegations of the Daltons are addressed here.