Town of Richmond v. Cowan, No. S0688-04 CnC (Norton, J., Aug. 2, 

2005) 

[The text of this Vermont trial court opinion is unofficial. It has been 

reformatted from the original. The accuracy of the text and the 

accompanying data included in the Vermont trial court opinion database is 

not guaranteed.] 

STATE OF VERMONT SUPERIOR COURT 

Chittenden County, ss.: Docket No. S0688-04 

TOWN OF RICHMOND 

v. 

COWAN 

ENTRY 

 

 Town seeks restoration of landowner’s drainage ditch through 

several theories of control. Landowner disputes Town’s ability to 
retroactively veto his riparian improvements. Both parties have motioned 

for summary judgment on their competing legal theories. Third-party 

intervenors, homeowners who live downstream from Landowner, oppose 

Landowner’s motion for reasons that mirror Town’s. 

 This case is about water. Specifically, it is about how water flows 

over Landowner’s property. Situated on a downward sloping hill, 

Landowner’s property sits between Snipe Ireland Road at the top and Snipe 

Ireland Brook at the bottom. Water collects on this particular section of 

Snipe Ireland Road into a drainage culvert that runs underneath the road 

and empties onto Landowner’s property at a point on the slope about two 

feet below the road. Prior to Landowner’s improvements, water from this 

culvert flowed downhill within a shallow drainage ditch emptying into the 

brook at the bottom of the hill. In 2000, Landowner added fill to the site, 

regraded the hill, planted vegetation, removed trees, and built a stone 

retaining wall. These improvements buried the old drainage ditch. 

 Nevertheless, Water, being subject to the dominion of gravity, 

continues to flow from the culvert down the hill and into the brook. Only 

now without the ditch to channel it, the water takes the diffuse path of least 

resistance over Landowner’s property, which the evidence shows is causing 

some erosion and possible silt deposits in the Brook. 

19 V.S.A. § 1111(b) Obstruction of a Drainage Ditch

 Town’s legal challenges to Landowner’s improvements derive from 

its position as a sovereign and an uphill property owner. The first basis that 

Town uses to demand the restoration of the old drainage ditch is 19 V.S.A. 

§ 1111(b). This statute deals with right-of-ways and improvements to areas 

that affect highway drainage. It reads: 
§ 1111 Permitted use of the right-of-way

* * * 

(b) Driveway entrances, highway grades; drainage. It shall be 

unlawful to develop, construct, regrade or resurface any driveway, 

entrance, or approach, or build a fence or building, or deposit 

material of any kind within, or to in any way affect the grade of a 

highway right-of-way, or obstruct a ditch, culvert or drainage 

course that drains a highway, or fill or grade the land adjacent to a 

highway so as to divert the flow of water onto the highway rightof-way, without a written permit from the agency, in the case of 

state highways, or the legislative body, or designee of a 

municipality, in the case of town highways. . . . The agency or 

legislative body, within their respective jurisdictions, may make 

such rules to carry out the provisions of this sections as will 

adequately protect and promote the safety of the traveling public, 

maintain reasonable levels of service on the existing highway 

system, and protect the public investment in the existing highway 

infrastructure, but in no case deny reasonable entrance and exit to 

or from property abutting the highways, except on limited access 

highways, using safety, maintenance of reasonable levels of 

service on the existing highways, and protection of the public 

investment in the existing highway structure as the test for 

reasonableness, and except as necessary to be consistent with the 

planning goals of 24 V.S.A. § 4302 and to be compatible with any 

regional plan, state agency plan or approved municipal plan. . . .

 Town latches onto a clause in the first sentence to argue that it is 

unlawful to “obstruct a ditch, culvert or drainage course that drains a 

highway” regardless of how far that ditch, culvert or drainage course is 

from the right-of-way. In this case, the ditch that Town seeks to restore is 

not located in the right-of-way but receives water from the right-of-way. 

Changing the ditch did not alter the highway’s drainage. And, in truth, it 

did not affect either the highway or the right-of-way. Town’s use of § 
1111(b) extends beyond the intended use of § 1111(b) to prevent adjoining 

landowners from making alterations to their land that would impact the 

drainage of state and town highways. Nevertheless, Town argues that the 

above-quoted language grants it the power to review and veto all changes 

that involve highway runoff. 

 Following the Town’s reasoning, § 1111(b) would hereafter require 

any homeowner receiving runoff from a highway, no matter how far this 

property was from the highway in question—or what effect the runoff had 

on the highway—to submit any change fitting § 1111(b)’s description to 

the relevant Town or agency. This might be dubbed the “Watershed” 

interpretation of § 1111(b). It appears to posit that a town or agency gains 

dominion over any drainage feature—or in the case of § 1111(b)’s 

preceding clause, any driveway or entrance—merely because the water has 

passed or will pass over the highway. Couple this “Watershed” theory 

with the reality that most all developed parcels in Vermont abut a road at 

either a higher or lower elevation—or at least receive runoff from or send it 

to property that abuts a road—and § 1111(b) becomes a pervasive, 

potentially tyrannical, mock-zoning power. Any driveway or land 

improvements would, apart from the normal zoning regulation, have to seek 

town or agency approval as a matter of course regardless of their potential 

impact on the adjoining road or highway. The court is dubious that the 

legislature intended to vest such overarching property regulatory power 

within a statute that otherwise deals more directly with highway safety and 

maintenance. 

 The court’s purpose in construing a statute is to give its language the 

effect that the legislature intended. Ludlow v. Watson, 153 Vt. 437, 441 

(1990) (citing In re Southview Associates, 153 Vt. 171, 175 (1989)). 
Section 1111and subsection (b) must be read as a whole to effectuate such 

intent. Read piecemeal and divorced from the statute’s overarching 

purpose gives the clauses in the first sentence the overreaching effect 

discussed above. As a whole § 1111(b) has the straightforward purpose of 

protecting highways from new or inadequate drainage patterns caused by 

adjoining private property owners. As the last sentence of the statute 

requires, any decision by a town or agency must balance a property owner’s 

right to reasonable access against three public purposes, “safety, 

maintenance of reasonable levels of service on the existing highways, and 

protection of the public investment in the existing highway structure.” 

While the immediate function of these three purpose is to test an town or 

agency’s decision—a function not at issue here—they also encapsulate the 

statute’s overall intent. 

 While § 1111(b) does not specify or require a specific level of 

impact or a standard of proof, each of the three underlying purposes 

requires some impact on the highway or its drainage system. Without some 

impact on the highway’s drainage, there simply is no safety concern, threat 

to maintenance, or anything from which to protect the public’s investment 

in the infrastructure. Neither party disputes that Landowner’s changes do 

not affect Snipe Ireland Road. They do not alter the drainage culvert or 

block it from emptying onto Landowner’s property. They do not redirect 

water back on to the Road, delay the drainage process, or limit how much 

water the property will accept. Landowner’s property accepts, as it did 

with his predecessors in title, all of the water from the drainage culvert. 

While there might have been some question of this prior to his regrading, 

five years later there is no doubt about the lack of any effect. In light of 

this, the court is even less inclined to interpret § 1111(b) to create a new 

power in Town to regulate water courses merely because they once touched 

a Town regulated right-of-way. The legislative intent does not support such 
a reading. Landowner’s changes do not fit within the purview of § 1111(b) 

because they do not affect, in any way, Snipe Ireland Road’s drainage. 

Prescriptive Easement

 For its second basis, Town argues that it has a prescriptive easement 

over the old drainage ditch, and Landowner must restore Town’s property 

interest therein. 

 A prescriptive easement is an offshoot of adverse possession that 

gives a party whose has used property in a certain manner the right to 

continue that use. Community Feed Store, Inc. v. Northeastern Culvert 

Corp., 151 Vt. 152, 155 (1989); see also In re Town Highway No. 20, 2003 

VT 76, ¶ 22. As in adverse possession, Town must prove that it has used 

the land in an open, notorious, continuous, and hostile manner for 15 years. 

Chittenden v. Waterbury Ctr. Community Church, Inc., 168 Vt. 478, 483 

(1998). In this case, Town demonstrates through the evidence that the ditch 

dates back to at least 1976 and has functioned as a drainage ditch ever since 

that date, taking water from the culvert beneath Snipe Ireland Road down to 

Snipe Ireland Brook until 2000. This shows that the old drainage ditch 

functioned in an open, notorious, and continuous manner for at least 23 

years. 

 What the evidence does not show is whether or not this ditch was 

operated in a hostile manner to Landowner and his predecessor’s interests. 

Neither Town nor Landowner’s evidence establishes who dug the ditch, 

who maintained the ditch, or even who planned it. Given the 

straightforward, unadorned flow, there are at least three possible suspects. 

The Town or one of its agents might have dug it when installing the culvert. 
A predecessor to Landowner may have dug it to channel water through the 

property and avoid the flooding that is now occuring. Or nature, through its 

redoubtable hydro-geologic process, may have been responsible. The 

answer to this question is important. If either nature or a predecessor to 

Landowner created the ditch, then Town’s claims would be less than 

hostile, perhaps a mere license. This is because the right that Town seems 

to assert over this ditch comes from a statute which empowers selectmen of 

a town to lay out, establish, construct, or cause to be constructed and 

maintained a drainage ditch to lead water from a highway. 19 V.S.A. § 

950. Such a decision constitutes a taking, however, which must be 

compensated. Sargent v. Cornwall, 130 Vt. 323, 328–29 (1972) (citing a 

predecessor to § 950). If anyone but the Town or its agent dug the ditch, 

the ditch cannot have been established as a taking because it was not 

authorized by the Town Selectmen as § 950 requires. Furthermore, if the 

Town did nothing to establish or maintain this ditch by act or command, 

then it has not acted adversely. That is, it has not asserted its rights in a 

manner hostile to Landowner’s interests. See In re .88 Acres of Property, 

165 Vt. 17, 21 (1996) (beyond statutory taking provisions, municipalities 

many adversely possess property through acts hostile to owner’s title). 

Instead, it may merely be said to be taking advantage of another ditch 

without asserting an interest in it. See 16 Backman, at § 1013[2][c] 

(“‘Hostile’ possession has been defined as possession that is opposed and 

antagonistic to all other claims, and which conveys the clear message that 

the possessor intends to possess the land as his own.”). 

 To a certain extent, Town’s arguments may also go to a larger right 

to the ditch as a drainage channel merely by its position as an upper 

landowner. While this argument smacks of the same “watershed” theory as 

Town’s earlier 19 V.S.A. § 1111(b) argument, it does raise a question of 
whether Town gained some inherent right to the ditch through the 23 years 

that Landowner or his predecessors accepted runoff from the Town’s 

culvert. If such a right may be said to exist separate from general riparian 

rights, it cannot be said to exist in a specific form. See generally Scanlan v. 

Hopkins, 128 Vt. 626 (1970) (discussing riparian rights between lower and 

upper property owners). 

 Any right that Town has acquired merely by Landowner’s repeated 

acceptance of water from the culvert is just that. Town—short of proof 

under § 950 or affirmative actions toward the creation or maintenance of 

the ditch—has only established that it has given water to Landowner, and 

Landowner has accepted it onto his property. The right to an easement over 

a specific drainage ditch on another’s property simply for letting one’s 

water flow into it does not exist. 78 Am. Jur. 2d Water § 370 (“[B]efore a 

use can be adverse in the sense of this rule, it must be an invasion of the 

rights of the party against whom it is set up, of such a character as to afford 

the person grounds of action . . . .”). Thus, the only right that the evidence 

shows that the Town has is one akin to the riparian right of an upper 

property owner. Landowner’s improvements have not altered that right. 

Riparian Rights 

 Landowner has also moved for summary judgment based on riparian 

law. This argument is primarily about what duties Landowner owes to his 

upper and lower neighbors. Under Scanlan, Vermont follows the civil-law 

rule, which “recognizes a natural servitude for natural drainage between 

adjoining lands”; so that the lower property owner must accept naturally 

flowing surface water from upper property owners, and the upper property 

owner must not change the natural drainage system so as to increase the 
burden on the lower. 128 Vt. at 631–32; Am. Jur. 2d Water § 177. The 

facts of this case do not implicate the riparian rights between Town and 

Landowner. Landowner’s improvements have not altered his acceptance of 

Snipe Ireland Road’s runoff, and Town has no riparian right under Scanlan

or its successors to claim any right to how water flows over Landowner’s 

lower parcel. 

 Notwithstanding this conclusion, Town argues that Landowner’s 

improvements have altered the drainage and threaten to pollute Snipe 

Ireland Brook with sewage, silt, or pollution from his proposed house. This 

argument mistakes riparian rights with water pollution control. Town does 

not have a claim against Landowner for future pollution under the doctrine 

of riparian rights as none of the “affected” water even threatens to come 

back onto Town’s property. Arguments under 10 V.S.A. § 1263 (discharge 

permits) or § 1264 (stormwater) are inapposite in this case as they deal with 

enforcement regulations that are under the purview of either the Agency of 

Natural Resources or the Environmental Court. 10 V.S.A. §§ 1251a, 1274. 

Town does not have standing to bring such an action here. 

 Town’s arguments also touch upon the idea that an upper land owner 

can bring suit to require a lower landowner to restore a “proper outlet” to 

carry runoff from the lower property owner’s property. This is a bridge too 

far. Riparian rights do not allow for that much control. Town’s concerns 

are better left to lower property owners, who do have standing under this 

theory, and the Agency of Natural Resources, which has the power to 

enforce pollution laws. Town’s theory would subvert the reciprocal nature 

of the civil-law rule and has no support in either Scanlan or its progeny. 

See 128 Vt. at 630 (discussing the balance between benefits and burdens 

for upper and lower property owners). As such, Town’s riparian arguments 
are invalid. 

Conclusion

 Without recourse to 19 V.S.A. § 1111(b), Town’s remaining claim 

of prescriptive easement depends upon some evidence that it authorized the 

drainage ditch, built it, or somehow affirmatively maintained it. Without 

proof of this type of hostile possession, Town cannot carry its burden and 

must be dismissed as a party. As for Landowner, he may still be liable to 

intervenors, who are lower adjoining property owners and receive or will 

receive any pollution or the effects thereof resulting from Landowner’s 

improvements. Intervenors also allege claims that appear to sound in 

nuisance, but neither party has moved for summary judgment on these 

claims. 

 Based on the foregoing, Defendant Landowner’s motion for 

summary judgment is Granted in regards to 19 V.S.A. § 1111(b) and 

Denied as far as there is an issue of material fact concerning the hostile 

element of Plaintiff Town’s prescriptive easement. Plaintiff Town’s 

Motion for summary judgment is Denied. 

 

 Dated at Burlington, Vermont________________, 2005. 

 __________________________________ 

Judge