Sundell v. Town of New London

• Court: New Hampshire Supreme Court
• Writing for the Court: GRIMES
• Citation: Sundell v. Town of New London, 119 N.H. 839, 409 A.2d 1315 (N.H. 1979)
• Decision Date: 12 December 1979
• Docket Number: No. 79-059,79-059
• Parties: W. A. SUNDELL et al. v. TOWN OF NEW LONDON.

Page 1315

409 A.2d 1315

119 N.H. 839

W. A. SUNDELL et al. v. TOWN OF NEW LONDON.

No. 79-059.

Supreme Court of New Hampshire.

Dec. 12, 1979.

Orr & Reno, Concord (William L. Chapman, Concord, orally), for plaintiffs.

Ransmeier & Spellman, Concord (John C. Ransmeier, Concord, orally), for defendant.

GRIMES, Chief Justice.

The issues involved in this case include whether riparian and littoral owners may recover in nuisance or in inverse condemnation for injury to their rights by pollution-caused algae blooms and whether the statute of limitations and prescription defenses should have been submitted to the jury. We uphold the trial court on all issues.

All but two plaintiffs are littoral owners of property on the shore of Kezar Lake; the other two are riparian owners along Lion Brook, a tributary of Kezar Lake. The defendant operates a sewage treatment plant which discharges nutrient-laden effluent into the brook upstream from the plaintiff riparian owners. The treatment plant was constructed in 1931. From time to time, there have been changes and improvements in the plant, but effluent continued to be discharged into Lion Brook and thence into Kezar Lake.

There was evidence that in 1938 a study of the lake showed it to have a transparency of eleven feet and additional testimony described the clarity and desirability for recreational uses of the lake from the 1920's until the early 1960's. Sometime about the middle 1960's the lake began to develop intense algae blooms which caused the water to become "pea soup" in color, lose transparency, give off foul odors, leave slime on the shore and kill fish, which then wash up onto the shore. Attempts by the New Hampshire Water Supply and Pollution Control Commission to control the situation, although successful for a time, failed and were abandoned.

There was ample evidence that the condition of the lake was caused by the defendant's plant discharging into Lion Brook and this does not appear to be at issue. There was also evidence that the condition was temporary in the sense that if the discharge of effluent into the waters were stopped, the lake would clear itself in about ten years and that this clearing could be accelerated by artificial means.

The trial court submitted the plaintiffs' claims of private nuisance and inverse condemnation to the jury but did not allow the defense of the statute of limitation, ruling instead that the condition in Kezar Lake was abatable. The court also declined to submit to the jury the defense of prescriptive rights. The jury returned a verdict for the plaintiffs in the amount of $119,580 and defendant's exceptions were transferred by Brock, J.

The threshold issue is whether the court erred in not granting the defendant's motions for directed verdicts based on its claim that the plaintiffs cannot recover for damages caused by the reduced enjoyment of the waters of Kezar Lake.

Kezar Lake is a great pond and at common law, Concord Manufacturing Co. v. Robertson, 66 N.H. 1, 25 A. 718 (1889), and under RSA 271:20 (Supp.1977), title to its waters vests in the State for public use. The statute provides that no individual shall have or possess any rights or privileges not common to all citizens. Our cases uniformly hold, however, that "littoral owners have rights which are more extensive than those of the public generally." State v. Stafford Company, 99 N.H. 92, 105 A.2d 569 (1954). See also Hoban v. Bucklin, 88 N.H. 73, 186 A. 8 (1936). These rights, recognized at common law, State v. Sunapee Dam, 70 N.H. 458, 50 A. 108 (1900); Concord Manufacturing Co. v. Robertson, 66 N.H. 1, 25 A. 718 (1889), constituted property which could not be taken without compensation and were not affected by RSA 271:20. These private rights of littoral owners include but are not necessarily limited to the right to use and occupy the waters adjacent to their shore for a variety of recreational purposes, the right to erect boat houses and to wharf out into the water. Hoban v. Bucklin, supra; State v. Stafford Company, supra; Heston v. Ousler, 119 N.H. ---, 398 A.2d 536 (February 14, 1979). We have also held that these private littoral rights are incidental property rights which are severable from the shore property itself and may be conveyed separate from the littoral property. Donaghey v. Croteau, 119 N.H. ---, 401 A.2d 1081 (May 9, 1979).

It is clear, therefore, that although waters of great ponds are public waters, littoral owners nevertheless have private property rights which are separate from, independent of, and more extensive than the public's right. Because these littoral rights are an incident of ownership of shore property, their value is reflected in the fact that shorefront property commonly is substantially more valuable than property otherwise situated. It is for interference with these private littoral rights that the plaintiffs seek damages, not for interference with rights common to the public. We hold that the trial court committed no error by declining to direct verdicts for the defendant based on this claim.

The defendant also argues that the trial court erred in not directing a verdict in its favor on the inverse condemnation count because there was no physical invasion of the plaintiffs' shore property. Inverse condemnation occurs when a governmental body takes property in fact but does not formally exercise the power of eminent domain. Ferguson v. Keene, 108 N.H. 409, 238 A.2d 1 (1968). It gives rise to a cause of action for compensation. The principle of inverse condemnation was developed in this State over one hundred years ago in Eaton v. B.C. & M.R.R., 51 N.H. 504 (1872) and was recognized by both the majority and the dissent in Ferguson v. Keene, 108 N.H. 409, 238 A.2d 1 (1968). The only point of difference in Ferguson related to the application of the doctrine to the alleged facts of that case. The view of the majority was that some physical invasion of the plaintiff's airspace by overflights was essential to its application. The defendant, relying on the majority opinion in Ferguson, argues that because the waters of the lake are public below the high water line, there has been no physical invasion of plaintiffs' property and therefore no inverse condemnation.

One of the basic teachings of Eaton v. B.C. & M.R.R., supra is that under our law, "property" refers to the right to "use and enjoy" a thing, and is not limited to the thing itself. Id. at 511. Governmental action which substantially interferes with, or deprives a person of, the use of his property in whole or in part, may therefore constitute a taking, even if the land itself is not taken. Id. The dissent in Ferguson, relying heavily on Eaton, looked to the effect of the governmental action rather than to the nature of it. It recognized, of course, that the interference must be more than mere inconvenience or annoyance and must be "sufficiently direct, sufficiently peculiar, and of sufficient magnitude to cause us to conclude that fairness and justice, as between the State and the citizen, requires that the burden imposed . . . be borne by the public and not by the individual alone." Batten v. United States, 306 F.2d 580, 587 (10th Cir. 1962) (Murrah, C. J., Dissenting ); Ferguson v. Keene, 108 N.H. at 414, 238 A.2d at 5 (dissenting opinion); See Duffield v. DeKalb County, 242 Ga. 432, 249 S.E.2d 235 (1978); Dempsey v. Boys' Club of City of St. Louis, Inc., 558 S.W.2d 262 (Mo.App.1977).

Reliance upon concepts of physical invasion by tangible things has in other fields of the law given way to concern with the effect on individual rights. See, e. g., Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (fourth amendment protects persons, not places); Accord Gordon v. City of Warren, 579 F.2d 386 (6th Cir. 1978) (compensation action against municipal corporation based on fourteenth amendment).

As has already been stated, the plaintiffs, as littoral owners, have rights below the high-water line in front of their property to use the waters for "a panoply of recreational activities." Heston v. Ousler, 119 N.H. ---, ---, 398 A.2d 536, 538 (February 14, 1979). In Heston this area was described as "their own water space." It is not disputed that the defendant's effluent-spawned algae invaded these waterspaces causing substantial interference with plaintiffs' use of this space for bathing, swimming, boating and other recreational purposes. There was also evidence that foul odors caused by the algae blooms, together with dead fish cast ashore, drifted across plaintiffs' upland, diminishing their enjoyment of it.

Thus the invasion of the plaintiffs' water space by effluent-caused algae blooms is a sufficient physical invasion of their property to satisfy the majority opinion in Ferguson v. Keene, supra. Moreover, the noxious gases and odors which invaded their shore property, containing elements not found in clear air, could also be considered sufficiently more tangible than the sound waves rejected as constituting a physical invasion in Ferguson.

The right to recover for inverse condemnation, however, cannot be made to depend upon the means by which the property is taken. Foul odors invading one's property can surely interfere with an owner's use of his land as much as an invasion by more solid substances. We hold that inverse condemnation results. See Duffield v. DeKalb County, 242 Ga. 432, 433-34, 249 S.E.2d 235, 237 (1978). To the extent that Ferguson v. Keene is inconsistent with our holding in this case, it is overruled. It therefore was not error for the trial court to deny the motion for directed verdicts on the inverse condemnation count.

The defendant argues further that the trial court erred in not submitting to the jury the question whether the town had acquired prescriptive rights in Lion Brook and Kezar Lake and in striking that defense as a matter of law. Rights are acquired by prescription when a use continues for a period...