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

2005)

[The text of this Vermont trial court opinion is un official. It has been reformatted from the original. The accuracy of the text and the accompanying data included in the Vermont trial cou rt 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 dit ch through several theories of control. Landowner disputes To wn’s ability toretroactively veto his riparian improvements. Both parties have motioned

for summary judgment on their competing legal theor ies. Third-party intervenors, homeowners who live downstream from La ndowner, oppose

Landowner’s motion for reasons that mirror Town’s. This case is about water. Specifically, it is abo ut how water flows over Landowner’s property. Situated on a downward sloping hill, Landowner’s property sits between Snipe Ireland Roa d 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 ru ns 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 improvem ents, water from this culvert flowed downhill within a shallow drainage d itch emptying into the brook at the bottom of the hill. In 2000, Landowne r added fill to the site, regraded the hill, planted vegetation, removed tree s, 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 an d into the brook. Only now without the ditch to channel it, the water take s the diffuse path of least resistance over Landowner’s property, which the evi dence shows is causing some erosion and possible silt deposits in the Broo k.



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

Town’s legal challenges to Landowner’s improvement s 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 drai nage ditch is 19 V.S.A. § 1111(b). This statute deals with right-of-ways a nd 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 resurfac e any driveway, entrance, or approach, or build a fence or building , or deposit material of any kind within, or to in any way affec t 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, i n the case of state highways, or the legislative body, or designe e of a municipality, in the case of town highways. . . . T he agency or legislative body, within their respective jurisdict ions, may make such rules to carry out the provisions of this sect ions as will adequately protect and promote the safety of the tr aveling public, maintain reasonable levels of service on the existi ng highway system, and protect the public investment in the ex isting highway infrastructure, but in no case deny reasonable entr ance and exit to or from property abutting the highways, except on l imited access highways, using safety, maintenance of reasonable l evels 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 consi stent with the planning goals of 24 V.S.A. § 4302 and to be compat ible with any regional plan, state agency plan or approved munici pal plan. . . .

Town latches onto a clause in the first sentence t o 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 tha t 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 drai nage. And, in truth, it did not affect either the highway or the right-of-w ay. Town’s use of §1111(b) extends beyond the intended use of § 1111(b ) to prevent adjoining

landowners from making alterations to their land th at 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 he reafter require any homeowner receiving runoff from a highway, no m atter how far this property was from the highway in question—or what e ffect 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 t hat a town or agency gains dominion over any drainage feature—or in the case o f § 1111(b)’s preceding clause, any driveway or entrance—merely b ecause 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 rece ive runoff from or send it to property that abuts a road—and § 1111(b) becomes a pervasive, potentially tyrannical, mock-zoning power. Any dri veway or land improvements would, apart from the normal zoning re gulation, have to seek town or agency approval as a matter of course regar dless of their potential impact on the adjoining road or highway. The court is dubious that the legislature intended to vest such overarching prope rty 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. Wa tson , 153 Vt. 437, 441 (1990) (citing In re Southview Associates , 153 Vt. 171, 175 (1989)).Section 1111and subsection (b) must be read as a wh ole to effectuate such

intent. Read piecemeal and divorced from the statu te’s overarching purpose gives the clauses in the first sentence the overreaching effect discussed above. As a whole § 1111(b) has the stra ightforward purpose of protecting highways from new or inadequate drainage patterns caused by adjoining private property owners. As the last sen tence of the statute requires, any decision by a town or agency must bal ance a property owner’s right to reasonable access against three public pur poses, “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 spec ific level of impact or a standard of proof, each of the three un derlying purposes requires some impact on the highway or its drainage system. Without some impact on the highway’s drainage, there simply is n o safety concern, threat to maintenance, or anything from which to protect t he public’s investment in the infrastructure. Neither party disputes that Landowner’s changes do not affect Snipe Ireland Road. They do not alter t he drainage culvert or block it from emptying onto Landowner’s property. They do not redirect water back on to the Road, delay the drainage proce ss, or limit how much water the property will accept. Landowner’s proper ty accepts, as it did with his predecessors in title, all of the water fr om the drainage culvert. While there might have been some question of this p rior to his regrading, five years later there is no doubt about the lack o f 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 beca use they once touched a Town regulated right-of-way. The legislative int ent does not support sucha reading. Landowner’s changes do not fit within t he purview of § 1111(b)

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



### Prescriptive Easement

For its second basis, Town argues that it has a pr escriptive easement over the old drainage ditch, and Landowner must res tore 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. N ortheastern Culvert Corp. , 151 Vt. 152, 155 (1989); see also In re Town High way No. 20 , 2003 VT 76, ¶ 22. As in adverse possession, Town must p rove that it has used the land in an open, notorious, continuous, and hos tile manner for 15 years. Chittenden v. Waterbury Ctr. Community Church, Inc. , 168 Vt. 478, 483 (1998). In this case, Town demonstrates through th e 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 Sn ipe Ireland Road down to Snipe Ireland Brook until 2000. This shows that th e old drainage ditch functioned in an open, notorious, and continuous ma nner 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 p redecessor’s interests.

Neither Town nor Landowner’s evidence establishes w ho 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 whe n installing the culvert.A predecessor to Landowner may have dug it to chann el water through the

property and avoid the flooding that is now occurin g. Or nature, through its redoubtable hydro-geologic process, may have been r esponsible. The answer to this question is important. If either na ture or a predecessor to Landowner created the ditch, then Town’s claims wou ld be less than hostile, perhaps a mere license. This is because t he right that Town seems

to assert over this ditch comes from a statute whic h empowers selectmen of a town to lay out, establish, construct, or cause t o be constructed and maintained a drainage ditch to lead water from a hi ghway. 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 i ts 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 ditc h by act or command, then it has not acted adversely. That is, it has n ot 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 prov isions, municipalities many adversely possess property through acts hostil e to owner’s title). Instead, it may merely be said to be taking advanta ge of another ditch without asserting an interest in it. See 16 Backma n, at § 1013[2][c] (“‘Hostile’ possession has been defined as possessi on 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 ow n.”).

To a certain extent, Town’s arguments may also go to a larger right to the ditch as a drainage channel merely by its po sition 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 doe s raise a question ofwhether Town gained some inherent right to the ditc h 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 sepa rate from general riparian rights, it cannot be said to exist in a specific fo rm. See generally Scanlan v. Hopkins , 128 Vt. 626 (1970) (discussing riparian rights be tween lower and upper property owners).

Any right that Town has acquired merely by Landown er’s repeated acceptance of water from the culvert is just that. Town—short of proof under § 950 or affirmative actions toward the creat ion or maintenance of the ditch—has only established that it has given wa ter to Landowner, and Landowner has accepted it onto his property. The r ight to an easement over a specific drainage ditch on another’s property sim ply 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 mu st be an invasion of the rights of the party against whom it is set up, of s uch 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 base d 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 nat ural drainage between adjoining lands”; so that the lower property owner must accept naturally flowing surface water from upper property owners, a nd the upper property owner must not change the natural drainage system s o as to increase theburden on the lower. 128 Vt. at 631–32; Am. Jur. 2 d Water § 177. The facts of this case do not implicate the riparian ri ghts between Town and Landowner. Landowner’s improvements have not alter ed his acceptance of Snipe Ireland Road’s runoff, and Town has no ripari an right under Scanlan or its successors to claim any right to how water f lows 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 pollut ion control. Town does not have a claim against Landowner for future pollu tion 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 t his 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 rest ore a “proper outlet” to carry runoff from the lower property owner’s proper ty. This is a bridge too far. Riparian rights do not allow for that much co ntrol. Town’s concerns are better left to lower property owners, who do ha ve standing under this theory, and the Agency of Natural Resources, which has the power to enforce pollution laws. Town’s theory would subver t 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, Tow n’s riparian argumentsare invalid.



### Conclusion

Without recourse to 19 V.S.A. § 1111(b), Town’s re maining 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 cann ot 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 owner s and receive or will receive any pollution or the effects thereof result ing from Landowner’s improvements. Intervenors also allege claims that appear to sound in nuisance, but neither party has moved for summary j udgment on these

claims.

Based on the foregoing, Defendant Landowner’s moti on 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