Roy v. Woodstock Cmty. Trust, Inc., No. 678-10-07 Wrcv (Cohen, J., Oct. 10, 2010)

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                                                  STATE OF VERMONT

SUPERIOR COURT                                                                             CIVIL DIVISION
Windsor County                                                                             Docket No. 678-10-07 Wrcv

David Roy, Mary Roy, Michael Hirschbuhl, Tonia Hirschbuhl,
Richard Roy, Roberta Roy, Glenn Barr, Charlotte Barr,
Richard Burroughs, Shirley Burroughs, and Jay Smith
Plaintiffs

v.

Woodstock Community Trust, Inc.
Defendant


         DECISION RE: CROSS-MOTIONS FOR PARTIAL SUMMARY JUDGMENT

       The central question is whether a servient landowner may change the location of an
underground water line easement without the consent of the easement owner.

                                                                   I.

        The relevant facts are undisputed. Defendant Woodstock Community Trust is
proposing to build a housing development on a parcel of property in West Woodstock,
Vermont. Two of the neighbors, however, own water line easements that cross the parcel in
such a way as to hinder the construction of the project as it has been designed and approved
by several local zoning and environmental boards. Accordingly, defendant seeks an order
permitting relocation of the water lines to the southern and eastern edges of the parcel so that
they will not interfere with construction. Defendant represents that relocation of the water
lines will neither inconvenience the neighbors nor affect the delivery of water to their homes
beyond a brief interruption in service during the relocation of the pipes. Defendant offers to
pay all costs of relocation and to provide the neighbors with bottled water until service is
restored.

         Defendant’s rationale is that landowners should be entitled to make reasonable
changes to the location of underground easements on their property when doing so would not
affect the utility of the easement, burden the easement owner in their use and enjoyment of
the easement, or frustrate the purpose for which the easement was created. Restatement
(Third) of Property: Servitudes § 4.8(3); Roaring Fork Club, L.P. v. St. Jude’s Co., 36 P.3d
1229, 1237 (Colo. 2001); M.P.M. Builders, LLC v. Dwyer, 809 N.E.2d 1053, 1057 (Mass.
2004); R&S Investments v. Auto Auctions, Ltd., 725 N.W.2d 871, 881 (Neb. Ct. App. 2006);
Lewis v. Young, 705 N.E.2d 649, 653–54 (N.Y. 1998). Defendant argues that this approach
“strikes an appropriate balance between the interests of the respective estate owners by
permitting the servient owner to develop his land without unreasonably interfering with the
easement holder’s rights.” Dwyer, 809 N.E.2d at 1057. Defendant contends that an order
permitting relocation is necessary to prevent plaintiffs from enlarging the scope of their
easement and thereby “vetoing” a development that has been approved by the local
permitting authorities.

        Both of the neighbors are plaintiffs in this case, and they respond that unilateral
relocation of easements is impermissible under Sweezey v. Neal, 2006 VT 38, ¶¶ 21–25, 179
Vt. 507. Plaintiffs argue that the Sweezey court expressly considered and rejected the
Restatement approach espoused by defendant, and instead reaffirmed the traditional
common-law rule that the owner of a servient estate may not change the location of a right-
of-way without the consent of the easement owner. Plaintiffs contend that Sweezey is
indistinguishable from the present case, and that it requires the entry of judgment as a matter
of law in their favor.

         It is always the role of the court, however, to evaluate whether application of a given
rule of law makes sense in the factual context of a particular case. This is particularly true
when, as here, commentators have observed that a rule is often phrased more broadly than the
interests and policies it is designed to protect. See Annotation, Relocation of Easements
(Other Than Those Originally Arising By Necessity); Rights as Between Private Parties, 80
A.L.R.2d 743 § 3 (1961 & Cum. Supp. 2010) (explaining that the language employed by
courts discussing the traditional rule against unilateral relocations of easements “is often
considerably broader than necessary for a determination of the issues before the court”).
Here, therefore, the court must ask whether it makes sense to apply the traditional common-
law rule, which most often applies to easements protecting the right of one landowner to
travel across the lands of another, in a case involving an underground water-line easement.

        In cases involving the right of one landowner to travel across the lands of another, the
traditional rule is meant to foster predictability and stability by preserving the bargain struck
by the original landowners. The rule presumes that the original landowners agreed upon the
physical location of the easement after considering such factors as ease of access, grade, and
the impact of the right-of-way on the other uses of the servient property, and seeks to protect
that agreement from future unilateral changes. See Sweezey, 2006 VT 38, ¶¶ 21–25; Herren
v. Pettengill, 538 S.E.2d 735, 736 (Ga. 2000); Davis v. Bruk, 411 A.2d 660, 665 (Me. 1980).
In a sense, then, the principle underlying the rule is preservation of contract; it requires
servient landowners to negotiate for the right to make modifications to the physical location
of the easement. As a corollary to this principle, the rule prevents servient landowners from
realizing unjust economic windfalls by disregarding the restraints that burdened their
property at the time of purchase. Sweezey, 2006 VT 38, ¶ 24 (quoting Davis, 411 A.2d at
665).

         In cases involving other types of easements, however, the respective landowners do
not necessarily have the same expectations with respect to the physical location of the
easement. An easement protecting the right of one landowner to take water from a spring, for
example, does not necessarily prohibit changes to the location of the pipes so long as any
alterations do not impair the ability of the dominant owner to convey the expected amount of
water to his property. Sargent v. Gagne, 121 Vt. 1, 12–13 (1958); Davidson v. Vaughn, 114
Vt. 243, 247–48 (1945). Similarly, an easement protecting the right of one landowner to run
a power line across the lands of another does not prevent the servient landowner from
relocating the power line so long as the relocation does not impose additional costs upon the
dominant owner. Millson v. Laughlin, 142 A.2d 810, 814 (Md. 1958); Minard Run Oil Co.
v. Pennzoil Co., 214 A.2d 234, 235–36 (Pa. 1965). In these situations, the prevailing


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principle is that the dominant owner is entitled to use the easement “only in such manner as is
fairly contemplated by the grant,” whereas the servient landowner is entitled to use and enjoy
his property to the fullest extent consistent with the terms of the easement. Millson, 142
A.2d at 814.

        In this case, the easement protects plaintiffs’ right to convey water from the main
water line on U.S. Route 4 to their own properties through an underground pipeline, and to
maintain the water line. Plaintiffs do not have an easement in the surface rights, and their
interests in conveying water do not depend upon maintaining the physical location of the
water lines in their present locations. As a result, it does not make sense to prevent
defendants from changing the location of the underground pipes if doing so would have no
bearing on the amount of water conveyed or otherwise impair plaintiffs’ ability to maintain
the water line.

         At the same time, application of the traditional rule in this case would unreasonably
frustrate defendant’s interest in developing its own property consistent with the terms of the
easement. Defendant did not purchase a property that was burdened by a surface easement,
but rather a right of two neighbors to convey water across the parcel through underground
easements. Accordingly, defendant has offered a development proposal that preserves these
rights, and therefore there is no inappropriate economic windfall accruing to defendant here.
If anything, application of the traditional rule in this case would confer an economic windfall
upon plaintiffs by enlarging the scope of their underground water-line easement into,
essentially, a permanent right of travel across the surface of defendant’s property, and to
possibly preclude any use of defendant’s property.

         Given these observations, it does not make sense to apply the traditional rule in this
case. Rather than protecting the settled expectations of the respective estate owners,
application of the traditional rule here would actually confer an economic windfall upon
plaintiffs while simultaneously defeating the reasonable development expectations of
defendant. As such, application of the traditional rule would undermine, rather than protect,
the interests and policies that the rule was meant to serve. For these reasons, the court
declines to apply the Sweezey rule in this case, and plaintiffs’ motion for partial summary
judgment on this question is denied.

                                                 II.

         The second question presented is whether defendant is entitled as a matter of law to
relocate the water line easements to the locations proposed by its engineer and depicted on
the exhibit attached to the engineer’s affidavit. Defendant asserts that it will relocate the
water lines to a greenbelt area in which there are no hard surfaces to obstruct access to the
lines, that it will prepare for and actually construct the new water lines at no cost to plaintiffs,
and that the new water lines will have the same pressure as the existing water lines.

        Plaintiffs make clear that they disagree with these representations. Their main
contentions are that (1) the new water lines will be more difficult to maintain because they
will be longer and located closer to the property boundaries, and (2) the new water lines may
not have the same pressure as the existing water lines.




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         On the first issue, plaintiffs are certainly entitled to a ruling that any relocation of the
pipes must not unreasonably impair their ability to maintain the water lines, since that is one
of the interests protected by their easement. Yet plaintiffs do not have any evidence at this
juncture other than mere speculation and conjecture to support their contention that the new
water lines will be more difficult to maintain than the old lines, either because of their length
or because of their location vis-à-vis the property boundaries. Plaintiffs have no expert
opinions to this effect.

         Instead, the only evidence in the record is from defendant’s engineer, who testified
that the new pipes will be located in a greenbelt area that preserves the ability of plaintiffs to
maintain the water line. Of course, by undertaking the relocation project, defendant assumes
the risk of future liability if it turns out that the relocation actually increases the maintenance
burden borne by plaintiffs. In the absence of any evidence that such increased costs will
necessarily happen, however, there is no genuine issue for trial at this time. See Richards v.
Nowicki, 172 Vt. 142, 150 (2001) (explaining that opponents of summary judgment cannot
rely upon speculation and hypothesis to defeat a properly-supported motion for summary
judgment).

         Similarly, on the second issue, plaintiffs are entitled to a ruling that the relocated
pipes must deliver the same water quality and pressure as plaintiffs have always enjoyed at
their homes. In this regard, however, plaintiffs’ interests are protected by the conditions of
the land-use permits, which require defendant to construct new water lines that provide
plaintiffs with “the same pressure as the existing water lines,” and which require defendant to
test the water lines for contamination and pressure and certify that the water meets all state
quality standards. In other words, the permitting process guarantees that plaintiffs’ interests
in water pressure and water quality will not be impacted by the proposed easement
relocation.

        For these reasons, there are no genuine issues for trial at this time as to whether the
proposed relocation of the water pipes would affect the utility of plaintiffs’ easement, burden
the easement owners in their use and enjoyment of the easement, or frustrate the purpose for
which the easement was created. A cause of action might, of course, arise in the future if
defendant’s performance falls below the promises it has made in this action and during the
permitting process. For now, however, the court must conclude that defendant is entitled to
relocate the easement so long as the conditions noted herein, and in the permits, are met.

                                                 III.

         The final issue involves the interrelationship between the ongoing permitting
proceedings and plaintiffs’ claim that the size and intensity of the proposed housing
development will invariably result in unreasonable amounts of noise, light, garbage, and
traffic. Defendant contends that the permitting proceedings are the forum for plaintiffs’
concerns, and that the claim for nuisance is premature to the extent that the proposed housing
development has not yet actually been built.

        The general rule here is that lawful uses of property must be operated in a reasonable
manner so as not to unreasonably interfere with the rights of adjoining property owners.
Trickett v. Ochs, 2003 VT 91, ¶ 36, 176 Vt. 89. Hence, although it is generally permissible
for an owner to operate his property as a pig farm, the farm may nevertheless become a


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nuisance if the owner allows chicken manure and dead animals to accumulate at the borders
of his property. Coty v. Ramsey Assocs., 149 Vt. 451, 457 (1988). In other words, the
nuisance determination is a fact-specific inquiry as to the extent of the interference and the
reasonableness of the challenged activities in light of the particular circumstances of the case.
Id.

        Here, the final conditions of operation are not yet known. Plaintiffs have appealed
the town permit and the Act 250 permit to the environmental court, and therefore still have an
opportunity to present their arguments regarding the impacts of the proposed development on
their properties. It is certainly conceivable that the environmental court will impose new or
different conditions that require defendant to amend its development plan. Given the
ongoing nature of the permitting proceedings, this court is not now in a position to make any
determination as to whether the existing plan constitutes a nuisance. See Wild v. Brooks,
2004 VT 74, ¶ 10, 177 Vt. 171 (explaining that “courts must be cautious about issuing
injunctions where changes in the circumstances giving rise to the alleged nuisance are likely
to occur”). If and when the proposed development is finally approved to be built, plaintiffs
may assert a cause of action for nuisance based on the noise, light, garbage, and traffic that
would be generated by the proposed housing development as it is required to operate under
the terms of its final land use permits. Id., ¶ 18. Until then, however, the cause of action is
not ripe.

        For these reasons, it does not make sense to enter summary judgment on the merits of
the nuisance claim at this time, or otherwise to make any factual determination as to whether
the proposed development constitutes a nuisance. At the same time, there is no live
controversy as to whether the final development plan constitutes a nuisance, since the plan is
not yet final Accordingly, the court will dismiss the claim without prejudice at this time. In
the event that the result of the town permitting process and the Act 250 proceedings is to
authorize development, plaintiffs may assert a new cause of action based upon the impacts of
the development under the terms of the final permits.


                                           ORDER

        (1)     Defendant’s Motion for Summary Judgment on Counterclaim (MPR #13),
filed Feb. 18, 2010, is granted;

        (2)    Defendant’s Motion for Partial Summary Judgment (MPR #14), filed Feb. 18,
2010, is denied, but the nuisance cause of action is dismissed without prejudice;

        (3)     Plaintiff’s Cross-Motion for Partial Summary Judgment (MPR #15), filed
Mar. 8, 2010, is denied; and

       (4)      Defendant’s Motion to Amend Discovery Schedule (MPR #17), filed April
22, 2010, is granted.

        Dated at Woodstock, Vermont this ____ day of October, 2010.


                                                _______________________________


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Hon. William D. Cohen
Superior Court Judge




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