Cannata v. Town of Deerfield, 88-061
| Decision Date | 06 October 1989 |
| Docket Number | No. 88-061,88-061 |
| Citation | 566 A.2d 162,132 N.H. 235 |
| Parties | Michael D. CANNATA, Sr., & a. v. TOWN OF DEERFIELD & a. |
| Court | New Hampshire Supreme Court |
Daniel D. Crean, Concord, on the brief and orally and J.P. Nadeau, Portsmouth, on brief, for plaintiffs, Michael D. Cannata, Sr., Michael D. Cannata, Jr., and Linda J. Cannata.
Upton, Sanders & Smith, Concord (Russell F. Hilliard on the brief and orally), for defendants.
This case involves disputes between owners of real estate and local government, including its officials in the Town of Deerfield where the land is located. The legal residuum of the dispute is a question as to whether the town and/or its officials are immunized, either by statute or common law, from a damage claim occasioned by a culvert positioned in a public way in such a manner as to cause an accumulation of water on the plaintiffs' land. This is the primary issue in the case having colorable merit, but we arrive at it only after an observation of the factual backdrop of these proceedings, the complexity of which is greatly enhanced by an array of pleadings which, by a wide margin, miss the mark of being exemplars of clarity and precision.
The events which have largely contributed to this litigation are easy to isolate. On August 15, 1980, and July 10, 1981, the town road agent, on behalf of the town, cleaned ditches along the side of Ridge Road. The plaintiffs claim that this activity resulted in the flooding of a portion of their land and the knocking down of a part of a stone wall on their property. Second, the plaintiffs claim that the town's installation and replacement of an eighteen-inch culvert across Ridge Road resulted in further "unnatural backwater flooding." The town denies all these allegations.
The plaintiffs have sued under a five-count, amended complaint. In count one, a constitutional rights claim, the plaintiffs allege that the town's subdivision approval process deprived them of their constitutional rights of due process and equal protection under the Federal and State Constitutions. In counts two and three (water diversion claims), the plaintiffs allege that the defendants, on August 15, 1980, and on July 10, 1981, respectively, intentionally diverted water onto their land and caused damage to a boundary wall on the land. In counts four and five (culvert claims), the plaintiffs allege that the defendants negligently installed a culvert on a town road which caused flooding on their property and later replaced it with another culvert improperly installed at a higher elevation than the previous one, which caused additional flooding on their property. The defendants moved to dismiss the complaint for, inter alia, failure to state a claim. The Trial Court (Gray, J.) dismissed the constitutional deprivation claim (count one) and the culvert claims (counts four and five) for failure to state a cause of action, but allowed the water diversion claims (counts two and three) to go forward. Subsequently, the Trial Court (Temple, J.), approving the recommendations of the Master (Charles T. Gallagher, Esq.), granted the defendants' motion for summary judgment on the water diversion claims in counts two and three, except that portion of count two which dealt with the knocking down of the plaintiffs' boundary wall. With but one exception, we affirm the trial courts' orders.
The Cannatas and the Town of Deerfield have been involved in litigation as adversaries in both federal and State court at various times over the nine years preceding this appeal. The source of their dispute has been a parcel of the Cannatas' property for which they sought subdivision approval from the town's planning board in 1979. Although the board initially denied approval, the plaintiffs later obtained subdivision approval as part of a settlement of an appeal to the superior court. The Cannatas then brought suit in federal court to obtain recovery for what they felt were unconstitutional and unfair proceedings in the subdivision approval process. The federal suit was subsequently dismissed for lack of a substantial federal question.
Following the federal court dismissal, the plaintiffs then filed this suit in superior court against the town, its planning board, its selectmen, and its town clerk. The defendants moved to dismiss the complaint on grounds of, inter alia, failure to state a claim and sovereign immunity. The Trial Court (Bean, J.) granted the motion in part, after which the plaintiffs moved the court to reconsider. The court granted the motion for reconsideration on the condition that the plaintiffs strike the entire "incomprehensible" complaint and rewrite it to provide for "specific claims in each count without repetition." The plaintiffs filed an amended complaint which is outlined above.
A comparison of the original and amended complaints reveals that the latter, although written somewhat more clearly, makes substantially the same allegations as the former. After the filing of the amended complaint, the defendants made the motions to dismiss and for summary judgment that precipitated this appeal. After the orders were issued on these motions, a nonsuit was taken by agreement on the remaining part of count two to allow for this appeal.
The plaintiffs have withdrawn their appeal of the dismissal of count one, the alleged deprivation of their constitutional rights in the subdivision approval process, in light of this court's decision in Rockhouse Mt. Property Owners Assoc. v. Conway, 127 N.H. 593, 503 A.2d 1385 (1986) (). We first address, therefore, plaintiffs' appeal of the dismissal of counts four and five, the culvert claims. As written in the amended complaint, count four incorporates by reference common factual allegations and, in relevant part, states as follows:
"The Defendant Town of Deerfield and the members of the Deerfield Board of Selectmen, individually and in their official capacities, negligently or wantonly and maliciously installed or caused to be installed an eighteen-inch corrugated metal pipe culvert across Ridge Road so as to create repeated flooding and flowing of surface water and run-off over, across and upon Plaintiffs' land in an unnatural and improper manner."
The plaintiffs go on to claim that the culvert installation resulted in a taking of their property and that it generally interfered with the use and enjoyment of their land. Throughout this count, the plaintiffs refer alternatively to both negligent and wanton behavior on the part of the defendants.
Count five similarly refers to both negligent and wanton behavior. This count, in relevant part, states:
"Defendants, Town of Deerfield and the Deerfield Board of Selectmen, individually and in their official capacities, in negligent and wanton disregard of the property rights and interests of the Plaintiffs, caused or allowed to be caused on or about July 1, 1982, the replacement of an existing improperly installed eighteen-inch corrugated metal pipe culvert at a higher elevation than the existing culvert, which wrongfully caused further and repeated additional innundating [sic] of Plaintiffs' land by unnatural backwater flooding, all without any right so to do and all despite previous knowledge of the defects of the prior installation."
The plaintiffs further claim that the officials' behavior has restricted the use of their land, will cause them to incur expenses to correct the water problem, and was in gross disregard of their constitutional rights.
The Trial Court (Gray, J.), citing Win-Tasch Corp. v. Town of Merrimack, 120 N.H. 6, 411 A.2d 144 (1980) and Sibson v. State, 111 N.H. 305, 282 A.2d 664 (1971), dismissed both counts on the ground that the actions of the selectmen, and therefore the town, were protected by the doctrine of quasi-judicial immunity. The court found that the planning and laying out of highways and sewers or drains were within the scope of this immunity. As additional support for his conclusions, the trial judge cited RSA 31:104 (Supp.1987), which provides immunity for municipal officials who act in their official capacities, in good faith, and within the scope of their authority. The court determined that the plaintiffs' "technique of incorporating in one count the language of both negligent and intentional torts does not preclude the Court from treating the counts properly as negligence claims," and that the negligence and intentional tort theories should have been presented in separate counts. The trial court then found that the complaint contained insufficient allegations of bad faith to support recovery against the town or its selectmen. In contrast, because counts two and three alleged intentional misconduct, they were not dismissed.
The Cannatas challenge the court's rulings on several grounds. They argue that counts four and five allege acts that are neither quasi-judicial nor within the scope of the selectmen's authority. They further argue that RSA 31:104 (Supp.1987) provides no protection to the selectmen because counts four and five allege intentional misconduct and therefore bad faith. The plaintiffs also argue that because they have pled in the alternative both negligence and intentional misconduct, only the negligence counts should be dismissed and the allegations of bad faith should remain.
In deciding a motion to dismiss we must, of course, assume that all facts properly pled in the complaint are true and construe all reasonable inferences from those facts in the plaintiff's favor. Jarvis v. Prudential Ins. Co., 122 N.H. 648, 651, 448 A.2d 407, 409 (1982). Viewing the plaintiff's complaint in this light, we affirm that part of the trial court's order that dismisses counts four and five against the board of selectmen....
To continue reading
Request your trial
-
Tarbell Adm'r, Inc. v. City of Concord
...releas[ing] the waters of Penacook Lake." Tarbell asserts that the court was required to analyze its claim under Cannata v. Town of Deerfield, 132 N.H. 235, 566 A.2d 162 (1989), which, Tarbell further contends, held that a municipality is always liable if it, "by the use of the land which i......
-
Tarbell Adm'R, Inc. v. City of Concord
...releas[ing] the waters of Penacook Lake." Tarbell asserts that the court was required to analyze its claim under Cannata v. Town of Deerfield, 132 N.H. 235, 566 A.2d 162 (1989), which, Tarbell further contends, held that a municipality is always liable if it, "by the use of the land which i......
-
Murphy v. Timberlane Regional School Dist.
...seems designed to limit municipal liability arising from tort suits and related personal property claims...." Cannata v. Deerfield, 132 N.H. 235, 566 A.2d 162, 167 (1989). The Murphys' compensatory education claim, on the other hand, is premised on allegations that Timberlane denied Kevin's......
-
Day v. Hurley
...nothing seems to have changed since Judge DiClerico issued his order in Holm. In Holm, Judge DiClerico turned to Cannata v. Town of Deerfield, 132 N.H. 235 (1989) for a definition of good faith. Cannata involved a different immunity statute, which provided "that no municipal executives, spe......