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
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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 right-
       of-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
