Leynan Rodulfo v Arima Borough Corporation and Dain Garcia

• Jurisdiction: Trinidad & Tobago
• Judge: Mr. Justice R. Rahim
• Judgment Date: 05 July 2018
• Neutral Citation: TT 2018 HC 143
• Docket Number: Claim No: CV2016-01369
• Court: High Court (Trinidad and Tobago)
• Date: 05 July 2018

IN THE HIGH COURT OF JUSTICE

Before

The Honourable Mr. Justice R. Rahim

Claim No: CV2016-01369

Between

Leynan Rodulfo

Claimant

and

Arima Borough Corporation

First defendant

Dain Garcia

Second defendant

Appearances:

Mr. V. Manwah for the claimant

Ms. T. Pierre for the second defendant

Tort - Nuisance — Whether proximity of claimant's house to boundary interfered with defendant's ability to fully enjoy use of his property.

1 This claim was initially for possession of land. However, the claimant withdrew her claim by consent. Therefore, this case concerns the counterclaim of the second defendant which in essence pertains to the tort of nuisance. As the first defendant is no longer a party in this matter, the second defendant will herein after be referred to as “the defendant”.

2 By Counterclaim filed on the 16 ^th January, 2017 the defendant claims that contrary to Town and Country Planning and the Arima Borough Corporation rules, the claimant has built her house too close to his western boundary. That he has been unable to fully enjoy the use of his property because the natural light and air to which he is entitled is being impeded by the proximity of claimant's house to his.

3 The defendant further claims that the claimant's water tank overhangs into his property by over two feet and that the tank is constantly leaking onto his property. According to the defendant, he had to relocate the parking of his vehicle as well as erect a garage to park his vehicle on the eastern boundary of his property because of the overhang of the tank and its incessant overrun. Moreover, the defendant claims that he has to power wash his property at least three times a year as the water dripping from the tank creates a mossy cover in his yard which is slippery, dangerous and unsightly.

4 The defendant also claims that the claimant has erected a ten foot high solid wall on the boundary of Raglan Trace. He alleges that this wall obstructs the sight of the roadway and therefore renders it dangerous for him and anyone else to operate their vehicle when existing Raglan Trace onto Raglan Street or turning into Raglan Trace as it is impossible to see what or who is coming towards the Trace when one enters or exists same.

5 Additionally, the defendant claims that the claimant's husband, Junior Rodulfo (“Junior”) operates a joinery business (“the workshop”) on the claimant's property and that the loud noises from the heavy machines used has disturbed him and his family's quiet enjoyment of their property. Also, that the toxic scents from the paint or lacquer used by Junior in the workshop are so disturbing that the defendant and his family had to on many occasions vacate their home.

6 Moreover, the defendant claims that he has noticed that the sewer air vent leading from the claimant's house is just four feet off the ground and pointed towards his premises. He alleges that when he took photographs of this sewer vent with the intention of evidencing same to the Arima Borough Corporation, he noticed that the vent was broken off. However, the defendant avers that the fumes from the sewer still emanates therefrom onto his property and disturbs him and his family's quiet enjoyment of their property.

7 Consequently, the defendant claims the following;

• i. That he be reimbursed the sums of $23,967.60 and $2,250.00 which represents the cost of having to move his garage to the eastern side of his property and the cost of power washing his property respectively;

• ii. That the claimant remove her water tank from overhanging onto his property;

• iii. That the claimant cease and desist all the noise and paint or lacquer scents emanating from her premises; and

• iv. That the claimant do pay to him damages for pain and suffering caused by the paint or lacquer toxic fumes emanating from her house.

8 By Defence to Counterclaim filed on the 23 ^rd February, 2017 the claimant denies that her wall is over ten feet and that it obstructs the vision of persons utilizing the Raglan Trace. She further denies that fumes emanate from the sewer air vent and puts the defendant to strict proof of same. She alleges that the sewer line is no longer in use and is therefore dormant.

9 She claims that Town and Country Planning permission was obtained when her house was being built by her mother, Shirley Peters. As such, the claimant avers that her house was built according to planning guidelines and rules. The claimant further avers that her water tank is on her property within her boundaries and that the water tank is not leaking.

10 The claimant admits that her husband, Junior operates the workshop on their property. However, she claims that he uses the workshop on a part time basis to earn additional income and that the paint used is water based paint and so it does not pose any threat or health hazard as claimed by the defendant. She also claims that the paint is done over one hundred feet away from the defendant's home.

Issues

11 The issues to be determined by this court are as follows;

• i. Whether the claimant has built her house too close to the defendant's western boundary;

• ii. If the answer to (i) is yes, whether the proximity of the claimant's house to the defendant's western boundary interferes with the defendant's ability to fully enjoy the use of his property because the natural light and air to which he is entitled is being impeded;

• iii. Whether the claimant's water tank overhangs onto to the defendant's property;

• iv. Whether the claimant's water tank leaks onto the defendant's property;

• v. If the answer to (iv) is yes, has the defendant established a causal link between the building of the garage, the power washing of his property and the leak on the claimant's water tank and if so, whether the claimant should reimburse the defendant the sums he expended to build the garage and power wash his property;

• vi. Whether the wall which was constructed by the claimant on the boundary of Raglan Trace obstructs the defendant's sight of the roadway and therefore renders it dangerous for him to operate his vehicle when existing Raglan Trace onto Raglan Street or turning into Raglan Trace;

• vii. Whether fumes emanate from the claimant's sewer vent and if so whether those fumes disturb the defendant and his family's quiet enjoyment of their property;

• viii. Whether the claimant's operation of the workshop on her land interferes with the defendant's use or enjoyment of his land, thereby amounting to a nuisance; and

• ix. Whether the defendant is entitled to damages for pain and suffering.

Nuisance

Law

12 The essence of nuisance is a condition or activity which unduly interferes with the use or enjoyment of land. It is an act or omission which is an interference with, disturbance of or annoyance to, a person in the exercise or enjoyment of;

• i. a right belonging to him as a member of the public, when it is a public nuisance; or

• ii. his ownership or occupation of land or of some easement, profit, or other right used or enjoyed in connection with land. 1

13 A nuisance which interferes with a person's use or enjoyment of his land or of some right connected with land is a private nuisance. There are three types of private nuisance; 1) nuisances by encroachment to another's land; 2) nuisance by direct physical injury to a neighbour's land; and 3) nuisance by interference with another's quiet enjoyment of his land. In most cases the nuisance results from an activity conducted by the defendant on his land, but this is not an essential ingredient of the tort. In the absence of an easement, however, the mere presence of a building which interferes with a person's enjoyment of his land does not constitute a private nuisance. 2

The case for the defendant

14 The defendant gave evidence and called three other witnesses, his wife Francisca Garcia (“Francisca”), his son-in-law, Marcus Sorzano (“Marcus”) and his neighbour, Andy Farfan (“Andy”).

15 The defendant is a retired teacher. He testified that he, his wife Francisca, their children and grandchildren have been residing at No. 20 Raglan Street, Arima (“lot 20”) for the past ten years or so. During cross-examination, the defendant testified that lot 20 originally belonged to his father, Edward Garcia (“Edward”). That Edward acquired lot 20 in the 1980's. He also testified during cross-examination that his ancestors has lived on lot 20 for

in excess of eighty years and that Edward and he never discussed whether Edward rented lot 20. Further during cross-examination, the defendant testified that he did not build the house on lot 20 in which he currently resides. That Edward built same between 1965 and 1966 and that when Edward was building the house, the lot of land to the west of lot 20 was an empty lot of land whereon a steel band held practice

16 The defendant testified that his house is about twenty feet away from the claimant's house and that the claimant and her husband, Junior operate a woodworking shop (“the workshop”) on their premises. During cross-examination, the defendant testified that the claimant's house is to the west of his home. That to the west of the claimant's house is Raglan Street and to the south of her house, there is a street which runs east to west (Raglan Trace) which he uses to access his property. He further testified during cross-examination that opposite to the claimant's property is the Arima Magistrates' Court and next to the claimant's property on the northern side, the Bally family operates a garage in which painting and straightening of cars are carried out. When asked if fumes are generated when the Bally family paints vehicles, the defendant testified that Bally's garage is completely enclosed save and except one opening towards Sorzano Street which is on occasion covered with a curtain. Sorzano Street is a main street from which Raglan Street emanates.

17 According to the...