John Larkin, Inc. v. Marceau

• Decision Date: 02 May 2008
• Docket Number: No. 07-176.,07-176.
• Citation: 959 A.2d 551,2008 VT 61
• Parties: JOHN LARKIN, INC. and Larkin Family Partnership v. J. Edward MARCEAU, Jr., D.D.S.
• Court: Vermont Supreme Court

959 A.2d 551

2008 VT 61

JOHN LARKIN, INC. and Larkin Family Partnership v. J. Edward MARCEAU, Jr., D.D.S.

No. 07-176.

Supreme Court of Vermont.

Motion for Reargument Denied June 3, 2008.

May 2, 2008.

Christina A. Jensen of Lisman, Webster & Leckerling, P.C., Burlington, for Plaintiffs-Appellants.

Christopher D. Roy of Downs Rachlin Martin P.L.L.C., Burlington, for Defendant-Appellee.

Present: REIBER, C.J., and JOHNSON, SKOGLUND and BURGESS, JJ., and DAVENPORT, Supr. J., Specially Assigned.

JOHNSON, J.

¶ 1. Real estate developers, who sued a neighboring landowner for trespass based on the neighbor's spraying of pesticides in his apple orchard, appeal the superior court's decision rejecting their trespass theory. Because the developers failed to make a showing sufficient to survive the neighbor's motion for summary judgment, we affirm the court's judgment in favor of the neighbor.

¶ 2. Plaintiffs John Larkin, Inc. and Larkin Family Partnership (Larkin) own undeveloped land adjoining that of defendant J. Edward Marceau, Jr., who operates an apple orchard on his property. Larkin purchased the property from Marceau's former spouse in 2001 for the purpose of building a residential development. To increase the density of the proposed development. Larkin later obtained a transfer of the development rights from Marceau's property and another adjoining parcel of land.

¶ 3. In 2003 and 2004, Larkin submitted to the District 4 Environmental Commission an application for a proposed 122-unit residential development with minimum setbacks along the Marceau boundary. Larkin requested partial findings from the commission on whether the proposed project would satisfy Act 250 criteria concerning the preservation of agricultural soils. Concerned about potential conflict over inconsistent uses, Marceau asked the commission to impose a buffer zone that would restrict residential use of the Larkin property adjoining his land. In September 2005, following three days of hearing, the commission determined, among other things, that Larkin had failed to satisfy two Act 250 criteria. First, Larkin had not demonstrated that there was no other use of the site that would have less impact on agricultural soils while still providing a reasonable rate of return on the fair market value of the property. Second, Larkin had not demonstrated that the project maximized the density of the development in a manner that increased the potential for agricultural uses. The commission determined that this latter criterion was not satisfied through transfer of the development rights from adjoining parcels of land, including the Marceau property.

¶ 4. As for the Act 250 criterion related to the instant lawsuit — whether the proposed project would significantly interfere with agricultural use on adjoining lands — the commission acknowledged the Agency of Agriculture's recommendation of a 250-foot buffer between the apple orchard and the proposed residential use, and expressed concerns that the minimum setbacks for the proposed project might result in conflicts between residents of the development and the orchard, with the potential for disruption of the current farming use on the Marceau property. Nevertheless, the commission explicitly stated that it had not heard enough evidence to determine whether the proposed project satisfied that criterion. Citing the project's failure to satisfy the two other criteria noted above, the commission reserved judgment on this latter criterion until Larkin submitted an amended proposal. Larkin neither appealed the commission's decision nor filed an amended application.

¶ 5. In March 2005, following the commission's rejection of the proposed project, Larkin filed suit against Marceau, seeking injunctive and compensatory relief based on Marceau's spraying of pesticides in his orchard. The lawsuit sounded in trespass, with Larkin alleging that winds carried detectable levels of pesticides onto its property, thereby damaging the property. In his answer to the complaint. Marceau asserted, among other things, that Larkin had failed to state a claim upon which relief could be granted, that the claims were not ripe, and that the claims were barred by Vermont's right-to-farm law, 12 V.S.A. §§ 5751-5754, which establishes a rebuttable presumption that agricultural activities are not a nuisance. Id. § 5753(a)(1). The superior court initially dismissed the trespass claim, but later allowed it to proceed beyond the pleadings stage.

¶ 6. In January 2007, after discovery was closed, Marceau moved for summary judgment, arguing that Larkin was in fact making a nuisance claim but couching the complaint in terms of trespass to circumvent the right-to-farm law. Larkin opposed the motion and filed a cross-motion for summary judgment, arguing that Marceau, by seeking a buffer zone between the parties' properties, had effectively ousted Larkin from part of its property. Concluding that Larkin's suit actually sounded in nuisance rather than trespass, the superior court stated that it would not endorse the fiction that Marceau's pesticides occupied Larkin's land, which would allow Larkin to evade the Legislature's plain intent to offer heightened protection to agricultural activities with respect to claims of this nature. The court declined to grant either party summary judgment, however, stating that the right-to-farm law did not necessarily preclude Larkin's complaint from surviving a motion for summary judgment insofar as the law established only a rebuttable presumption that no nuisance existed. The parties later stipulated to dismissal of Larkin's claims to the extent that they sounded in nuisance, and the superior court entered a final judgment against Larkin.

¶ 7. On appeal. Larkin argues that: (1) the superior court erred by recharacterizing its trespass action as a nuisance action subject to the right-to-farm law and thus effectively dismissing its trespass claim; (2) the right-to-farm law does not insulate farmers from liability for trespass, regardless of the nature of the trespass: and (3) the right-to-farm law is an unconstitutional taking to the extent that it permits farmers to deposit pesticides on neighbors' lands in a manner that precludes use of those lands. In response, Marceau argues that Larkin's claims are actually nuisance claims subject to the right-to-farm law, and that Larkin cannot avoid that law by alleging trespass. He also argues that Larkin failed to raise his constitutional claims before the superior court, and that, in any event, a private citizen cannot be held liable for an alleged taking that has not yet occurred and would result from conditions imposed by state regulators beyond his control. We conclude that Larkin failed to make a showing sufficient to survive summary judgment on its trespass claim, and thus affirm the superior court's judgment in favor of Marceau.

¶ 8. The parties frame the primary issue as whether the deposit of airborne particulates on land may sound in trespass rather than nuisance. They both acknowledge the accepted distinction "that trespass is an invasion of the plaintiff's interest in the exclusive possession of his land, while nuisance is an interference with his use and enjoyment of it." W. Keeton et al., Prosser and Keeton on the Law of Torts § 87, at 622 (5th ed.1984). Compare Restatement (Second) of Torts § 158 cmt. c, at 277 (1965) (describing trespass as an "intrusion" invading "the possessor's interest in the exclusive possession of his land" (internal quotations omitted)) with Restatement (Second) of Torts § 821D cmt. d, at 101 (1979) (defining nuisance as "an interference with the interest in the private use and enjoyment of the land [that] does not require interference with the possession," and distinguishing trespass as "an invasion of the interest in the exclusive possession of land"). Larkin claims that Marceau's application of pesticides that settle onto its property effectively ousted it from the property. Marceau counters that Larkin is actually asserting a loss in the use and enjoyment of its property, which is a claim sounding in nuisance.

¶ 9. Traditionally, courts held that although a personal entry is unnecessary for trespass to take place, a defendant's act "must cause an invasion of the plaintiff's property by some tangible matter." See Maddy v. Vulcan Materials Co., 737 F.Supp. 1528, 1539 (D.Kan.1990) (citing cases); see also Adams v. Cleveland-Cliffs Iron Co., 237 Mich.App. 51, 602 N.W.2d 215, 219 (Ct.App.1999) (citing cases); D. Dobbs, The Law of Torts § 50, at 96 (2001) ("The law of nuisance deals with indirect or intangible interference with an owner's use and enjoyment of land, while trespass deals with direct and tangible interferences with the right to exclusive possession of land."); Keeton, supra, § 13, at 71 ("While it is generally assumed and held that a personal entry is unnecessary for a trespass, the defendant's act must result in an invasion of tangible matter."); cf. Canton v. Graniteville Fire Dist. No. 4, 171 Vt. 551, 552, 762 A.2d 808, 810 (2000) (mem.) ("Even assuming water flow is an indirect invasion of property, and therefore not a trespass, interference with surface water may constitute a nuisance."). Plaintiffs showing a direct and tangible invasion of their property may obtain injunctive relief and at least nominal damages without proof of any other injury. Adams, 602 N.W.2d at 219.

¶ 10. On the other hand, plaintiffs claiming a nuisance have to...