Ace Equipment Sales, Inc., et al. v. Thomas Buccino, et al. (Connecticut Supreme Court) 

This case raises the issue whether a property owner has the right to the exclusive use of a manmade pond situated entirely on his own land. Plaintiffs own the land under an artificially created pond in Willington, Connecticut. Defendants own land bordering the pond and claim that, as a consequence, they have the right to use the pond for recreational purposes. Plaintiffs sued, seeking to enjoin the defendants from using the pond. The Superior Court of Connecticut ruled that defendants have littoral rights to use the pond for recreational purposes. Plaintiffs appealed, the Connecticut Appellate Court affirmed, and the Connecticut Supreme Court took the case on further appeal. In its amicus brief in support of plaintiffs’ property rights, NELF argued that the settled law in many jurisdictions provides the owner of land under a manmade pond with exclusive property rights over the pond. Under this rule, any unwanted intrusion on the pond is an unlawful trespass. NELF also argued that the Appellate Court’s decision defeats the property owner’s basic right to exclude others from his land and with it the necessary incentive to make productive use of his land. The right to exclude is indispensable to encouraging a property owner to invest in the improvement of his property. A property owner is deprived of that incentive if third parties are permitted freely to appropriate his efforts. NELF asserted that the Appellate Court’s decision had the perverse effect of penalizing a property owner for improving his land. If the property owner did nothing to invest in his property and make improvements, no one would disagree that he had the right to exclude all others from his land. However, under the Appellate Court’s decision, once the same property owner expended the time and money to create the pond on his property, he would lose the exclusive right to use his own property as he saw fit. This result defies logic and undermines basic principles of private property. In its April 5, 2005 decision, the Connecticut Supreme Court agreed with NELF and reversed, adopting the prevailing rule that gives the owner of the pond bed exclusive control over the bed and the waters above it.