Moncrief v. McBride
| Docket Number | 167-10-17 Ancv |
| Decision Date | 21 July 2022 |
| Citation | 2022 Vt Super 072101 |
| Parties | JUNE MONCRIEF and NICHOLAS TONZOLA, Plaintiffs v. GERALYN McBRIDE and DOUGLAS TOLLES, Defendants |
| Court | Superior Court of Vermont |
DECISION
This is a dispute between abutting landowners over an area on Defendants' land on which Plaintiffs hold an easement for replacement septic system use. The claims were bifurcated and the court first tried Plaintiff's quiet title claim in 2019 to determine the legal interests in the disputed area leaving for later resolution various claims for unlawful mischief, nuisance, trespass, and others.
By decisions of February 10, 2020 and May 21, 2020, the court (J. Arms) declared that Plaintiffs have a deeded septic easement in the disputed area. The court issued a preliminary injunction precluding Defendants' use of the area except for walking. The court dismissed Defendants' claims that Plaintiffs had waived their right to the easement as well as Defendants' defenses of trespass and estoppel.
In a summary judgment ruling of September 3, 2020, J. Arms dismissed some claims and denied summary judgment on others. In a ruling of October 29, 2020, she issued an Order clarifying and amending the September 3, 2020 Order.
On October 19, 2020, the undersigned granted the Plaintiffs' request for a pretrial attachment in the amount of $17,726.25.
In a summary judgment ruling of June 2, 2021, the undersigned denied Defendants' motion for summary judgment on their unlawful mischief claim, and granted their motion for summary judgment on Plaintiffs' claim for punitive damages.
The above rulings left for final hearing the claims identified in the "Conclusions of Law" section below.
On December 12, 2021, the undersigned made a site visit to the property in the company of attorneys for both parties.
A final hearing on all remaining issues took place on March 7-11 2022. It was a hybrid hearing conducted largely in-person but with some remote participation by Webex. Plaintiffs June Moncrief and Nicholas Tonzola were present in person and represented by Attorneys Richard Cassidy and Michael T Russell. Defendant Douglas Tolles was present in person and both Defendants were represented by Attorney Christopher Roy.
At the close of Plaintiffs' case, Defendants moved for judgment on Plaintiffs' unlawful mischief claim pursuant to V.R.C.P. 52 (c). The court deferred ruling at that time, but denies that motion in the "Conclusions of Law" section below, based wholly on the evidence introduced by Plaintiffs in their direct case. The attorneys submitted post-trial memoranda and responses on all pending claims.
Based on the prior rulings of law and the evidence admitted at the final hearing, the court makes the following overall findings of fact and conclusions of law.
The land of both parties was previously part of a hilly dairy farm owned by the Mahans, pertinent parts of which are in the Town of New Haven, Vermont. There is a large barn that is still used for agriculture uphill (north) from the parties' parcels. Both parcels have frontage on Hallock Road, which runs in a north-south direction uphill to the former Mahan farm. Plaintiffs' land is below the barn and Defendants' land is below Plaintiffs' parcel.
In 1998, Plaintiffs Moncrief and Tonzola bought the 2-acre parcel they now own from the Mahans for use as their personal residence. The property included a house built in 1953. Environmental subdivision regulations at the time required that if a homestead exemption was claimed, there needed to be at least a 100 foot buffer between the septic system and the boundary of land available, either in fee or by easement, for additional or replacement septic system use.
Thus the deed to Plaintiffs included not only the fee for the homestead parcel of 2 acres but also an easement for a replacement septic system in an area that extended beyond the lower boundary line 80 feet south in an open field retained by the Mahans. Unbeknownst to the Plaintiffs, underneath the surface of the land they bought and the easement area was a length of Orangeburg pipe 4 inches in diameter perforated with holes and buried in a bed of drainage stones. It ran 220 feet downhill from the site of Plaintiffs' home underneath the fields across portions of what is now both the Plaintiffs' and Defendants' parcels. It is unknown how long the Orangeburg pipe had been there, and what its original intended use was.
At the time of purchase Plaintiffs had a new septic system for the residence installed by Thomas Fisher, who was unaware when he installed it that there was an Orangeburg pipe underground in the vicinity. The septic system was installed at a level in the ground several inches above the Orangeburg pipe. The entire system was located within the boundaries of the 2-acre parcel and did not use any of the easement area. It included a lateral leach field trench approximately 20 feet northerly of, and parallel to, the southern boundary line of the Plaintiffs' 2-acre parcel. Thus the septic system was 100 feet away from the southern boundary of the Plaintiffs' easement area.
In 1999, Mr. Tonzola noticed a wet area some distance downhill from his property on the neighboring downgradient land. He was curious about where the water came from, and put red dye down the drain in his house, but no dye appeared at the wet site. He concluded that the wetness was not coming from his house.
Prior to 2003, the Mahans sold a parcel of 30.75 acres of their remaining land, downgradient from and abutting the Plaintiffs land, to the Etkas. This parcel included the area of the Plaintiffs' septic easement, which is located just below and adjacent to the Plaintiffs' parcel. The septic easement area has frontage on Hallock Road 80 feet wide. Its 80 foot width runs back away from the road for 158 feet. The rear boundary extends even further back in the shape of an arc leading up to meet Plaintiffs' boundary line. The Etkas built two houses and a garage on the property in locations not affecting the easement area.
The Plaintiffs had problems of water in their basement, and in 2004, they had the house lifted up to replace failed foundation walls in the basement, and they then installed a curtain drain to divert water away from the house. The ends of the curtain drainpipes direct water downhill toward Defendants' land. Judge Arms found that (February 10, 2020 Decision, page 10.) As a result of the additional evidence at the most recent hearing, this court finds that there is no change to the finding except that the curtain drain no longer discharges at the common boundary, but now discharges 17' back from the common boundary, causing the water to disperse more broadly before it reaches the boundary. The evidence does not support a finding that water from the curtain drain presently causes areas of saturation or pooling on Defendants' property.
In 2009, Defendants bought the entire Etka property and have resided in one of the houses since then. The other is a tenant house. Fields are leased to a farmer for hay production. The portion of their land encumbered by the Plaintiffs' easement continued after purchase to be an open, undisturbed field. In the spring following purchase, Mr. Tolles asked Mr. Tonzola about a wet spot on his property in the field south of the easement area. Mr. Tonzola had no explanation for it. At that time, neither party knew anything about the Orangeburg pipe.
In 2014-15, Mr. Tolles cleared the side of Hallock Road along the 80 foot frontage of the easement area by taking out an old farm fence and brush. In 2016, he applied to the Town for a curb cut to put in an access road "for farm purposes only" that would come off Hallock Road and cross the easement area. He later amended the application to remove the limitation for farm use only. He told the Selectboard that he wanted access for parking for tenants in the tenant house. He testified that he also wanted to be able to haul water to the tenant house. The Town granted the permit without limitation for farm purposes. He wanted to add gravel or crushed stone to the access road. A separate permit was needed from the Town for that purpose, and a hearing was scheduled.
2017: Differences develop between the parties
In March of 2017, Mr. Tolles detected a smell at a location in the field north of his driveway and south of the easement area. He notified the State. He believed that it was a smell of sewage and that it came from the Plaintiffs' land. He did not notify Plaintiffs. Environmental Officer Gary Urich of the Agency of Natural Resources came to inspect. Nothing was apparent on the surface of the ground. He did not smell sewage at the site and took no action.
At a public hearing in May, Mr. Tonzola heard for the first time that Mr. Tolles believed sewage from the Moncrief/Tonzola property was entering the Tolles/McBride property. Mr Tonzola apparently raised the issue of the Plaintiffs' easement. The Town granted the permit for the addition of gravel for construction of an access road on Defendants' land based on Town regulations. Nonetheless, on May 8, 2017, the attorney for the Town sent Mr. Tolles a letter reminding him that his use of the permitted road was subject to the Plaintiffs' easement. "Any town permit issued for lands subject to easement rights is issued subject to that easement." (Exhibit 108). Mr. Tolles testified at trial that as a layperson he did not agree. ...
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