Watson v. Wilkinson, No. 140-4-10 Bncv (Wesley, J., Feb. 13, 2014).
[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                                                                                                  CIVIL DIVISION
Bennington Unit                                                                                       Docket No. 140-4-10 Bncv

Gerald Watson,
       Plaintiff
                                                                               FINDINGS, CONCLUSIONS, AND
           v.
                                                                                       JUDGMENT
John Wilkinson,
      Defendant


        This claim for trespass to Plaintiff’s property, and resulting damage to his pond, was
tried to the Court on Nov. 6 & 8, 2013, and Jan. 15, 2014. Plaintiff was represented by Karl
Anderson, Esq. Defendant was represented by Jason Morrissey, Esq.

        By pre-trial order issued Aug. 21, 2013, the parties were to file proposed findings of fact,
together with a memorandum of law, no later than 7 business days prior to the scheduled
commencement of the trial on Nov. 6. While Defendant complied with this requirement,
Plaintiff did not. At the conclusion of the evidence on Jan. 15, 2014, the Court allowed 15 days
for the filing of post-trial supplemental requests for findings of fact, and any further
memoranda of law comporting with the evidence. Defendant submitted additional proposed
findings and conclusions on Jan. 30, 2014. Plaintiff has never submitted any written summation
of the evidence and law in support of his complaint.

Findings of Fact

1.      Plaintiff, Gerald Watson, lives at 159 Austin Hill, Bennington, VT. There is a pond
    approximately 1 acre in size on the property.
2.      The pond was constructed in the late 1960s. Watson has used the pond for swimming
and boating continuously, and it has been regularly stocked with trout.
3.      The pond is approximately 14 feet deep, dug in clay soil and unlined. It is fed primarily
from three springs at its bottom.
4       The land slopes gradually uphill to the east of the pond. The terrain to the east is a
wetland. Surface water flows out of the wetland in multiple small watercourses toward the
pond.
5.       When constructed, the pond included a built-up berm to the east, and a dug channel
designed to deflect surface water is a southwesterly direction around the pond, toward the
outflow stream on the western side of the pond.
6.      The outflow stream is also fed by an overflow pipe set in the pond wall 15 feet above
the base of the pond. The outflow stream crosses Watson’s property for about 100 feet and
into a culvert under Austin Hill road.
7.      Watson has never done any maintenance on the pond. He never noticed any unusual
turbidity or evidence of siltation until late spring 2009.
8.       At that time, due to having witnessed water flowing east to west over the bank of the
pond, which seemed to him to be unusually muddy, Watson came to believe that construction
activity by his neighbor to the east, Defendant John Wilkinson, was causing undue erosion and
siltation to his pond.
9.       Wilkinson resides at 951 Vail Road, Bennington, VT. There are two ponds on Wilkinson’s
property, a small firepond and a larger pond constructed afterwards and completed in the early
1990s.
10.      Wilkinson’s property is east of Watson’s property, and uphill from Watson’s pond. The
distance between the larger of Wilkinson’s ponds and Watson’s pond is approximately 600 feet.
11.      The slope between the two ponds is very gradual, rising approximately 25 feet from
west to east.
12.      The terrain between the two ponds is mature and well-established wetland. There are
no defined streams that run through the wetland.
13.      The two ponds, and the wetland between them, are part of a larger watershed
comprising approximately 96 acres. The watershed has a high point to the east of Wilkinson’s
property, and drains many streams and springs. The drainage through the watershed is
generally east to west across Wilkinson’s property, and downhill toward Watson’s.
14.      In the spring of 2009, Wilkinson undertook construction activities to the west of his
larger pond. He used a bulldozer to clear brush, pull stumps, and level the ground for the
purpose of establishing a wider lawn.
15.      The cleared area, which is now established lawn, was approximately 4 acres, extending
approximately 40 feet from the west side of the pond. The area was not part of the wetland,
and has remained consistently dry and well drained.
16.      Wilkinson credibly denies that he entered the wetlands between his pond and Watson’s
while using heavy equipment in 2009 to widen the lawn to the west of his pond.
17.      Wilkinson credibly denies during the period of his ownership of the property east of
Watson’s having ever used heavy equipment, or engaged in any construction activities, within
the wetlands. There is no evidence contradicting Wilkinson’s testimony to such effect.
18.      In late summer 2010, when Wilkinson’s pond had become largely empty due to a dry
summer, he used excavation equipment to repair a leak in the wall of his pond. Wilkinson is
uncertain when the leak first occurred.
19.      Wilkinson’s pond has an outflow to the northeast, which is typically a slight trickle. The
outflow continues from the base of the dam around the base of the pond, and into the
wetlands to the west between the Wilkinson pond and the Watson pond.
20.      The outflow has never caused a well-defined, continuously flowing channel. The
outflow from the leak in the west wall of the pond joined the outflow from the dam, not adding
significantly to its rate or volume
21.      At some point in 2009, at Watson’s request, his close friend Peter Percey, walked
between the Watson pond and the Wilkinson pond in an effort to assess Watson’s concern that
his pond was being damaged by undue accumulation of silt. Based on his own lengthy history
of visits to the pond, Percey concurred in Watson’s observations.
22.      Percey claims to have followed a discrete channel, as wide as 28-20 inches wide and
deep enough to support a continuously flowing stream, between Wilkinson’s pond and
Watson’s pond.
23.      Percey claims to have come to a location near Watson’s pond where the flow had
eroded the berm and emptied into the pond, because the channel running at the foot of the
berm toward the pond’s outflow had become silted in.
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24.      Percey took certain photographs, however he was often unable to distinguish between
which he took and which may have been taken by others. Certain photographs were identified
initially has having been taken in 2009, but later proved to have been taken in 2010.
25.      Percey stated that he had taken other photographs documenting the continuously
running stream between the two ponds, although he noted these were not among those
offered in evidence.
26.      There was no photograph showing the breach of the berm, or the siltation of the
channel.
27.      Percey has no expert qualifications with respect to hydrology or the functioning of
wetlands.
28.      On a different day in the spring of 2009, Watson made a similar assessment to the one
undertaken by Percey, also stating that he followed a distinct watercourse between the two
ponds.
29.      Watson did not make a photographic record of that investigation.
30.      On July 29, 2009, Watson complained to the Vermont Agency of Natural Resources
regarding Wilkinson’s activities.
31.      Investigator Patrick Lowkes from ANR met with Watson at his pond on July 31. There
was heavy rain at the time of the visit, but Lowkes noted no “muddy discharge” to the pond
from upstream.
32.      ANR continued its investigation on June 28, 2010 when State Wetlands Biologist Alan
Quackenbush met with Wilkinson while making a site visit to examine his pond.
33.      Quackenbush concluded that Wilkinson’s pond was not situated in a wetland, and that
the construction activities from the previous summer had violated no ANR regulations.
34.      Per Quackenbush’s observations, the wetland between the two ponds was well-
established with wetland vegetation, including thick cattails and trees. Further, the wetlands
was performing adequately in filtering water moving through the area and not providing a
discrete channel for water to scour sediment.
35.      Quackenbush’s conclusion, which is fully supported by the evidence here, was “that the
complainant’s pond had most likely received nutrients over the years due to normal storm
events/receiving of sediment load from upstream sources, and not due to work being done by
respondent in excess of 1500 feet upstream”.
36.      On cross-examination, Quackenbush was asked to comment on photographs purporting
to show muddy discharge flows into Watson’s pond. He was unable to confirm the
representation that they showed muddy discharges, based only on examination of the
photographs. He acknowledged that, if so, it would be at odds with his observations.
37.      Photographs in evidence, attested by Watson as showing several different events during
which muddy discharge flows have emptied into his pond, are of extremely poor quality.
Further, little effort was made to carefully correlate the times of such photographs with
proximity to significant rain, snow, or melt runoff events. The Court accords little significance
to such photographs, or to the testimony associated with them.
38.      After being contacted by Watson in May 2010, Noel Dyke assessed his pond for the
purpose of recommending any needed repair, and submitted an estimate in June.
39.      Dyke noted a number of inlet streams to the pond. Although uncertain during his
testimony as to the exact number, Dyke recalled that inlet to the pond was not in a solitary
channel.
40.      Dyke found the pond in generally “good shape”, but requiring some rehabilitation to
address silt buildup.
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41.      Dyke identified a more distinct channel uphill from the pond, which was blocked and
creating diffuse drainage toward the pond. He did not follow the watercourse uphill.
42.      Dyke recommended draining the pond by pumping. Silt would be removed from the
pond with excavation equipment. After being stored on site to dry for a year, the silt would be
transported off site. Dyke’s proposal for rehabilitating the pond was estimated to cost $79,216.
43.      Dyke acknowledged that some maintenance is typically required over time to prevent
silt buildup with respect to any pond that is exposed to some surface water inflow, or the
decomposition of organic matter falling into the pond.
44.      Watson did not engage Dyke as a litigation expert to offer opinions as to the cause of
the silt accumulation, and Dyke made it clear in his testimony that he was unprepared and
unqualified to do so.
45.      On August 8, 2013, Wilkinson’s expert, Errol Briggs, made a site visit to investigate
conditions between the Wilkinson and Watson ponds. By extensive educational background,
and professional experience, Briggs is competent to offer expert opinions as to the functioning
of wetlands. The Court adopts as well-supported by the evidence the findings and conclusions
of Brigg’s report of his site visit, admitted in evidence.
46.       Briggs found that, between the two ponds, the outflow stream from the Wilkinson
pond flows in a very irregular course, sometimes in multiple channels, sometimes barely
perceptible.
47.      Briggs found that the wetland would rank very high for erosion control due to dense
vegetation that bind and stabilize soils, protecting them from erosive forces. Further, the
wetland has a high capacity to protect surface and groundwater because the dense riparian
vegetation can retain or remove sediments and organic matter.
48.      Noting that just prior to his site visit there had been recent heavy rains, Briggs found the
flows through the wetlands intermittent but clear, with no turbidity.
49.      Briggs concluded that the stream course between the Wilkinson and Watson ponds is
stable and in natural condition, and there is no evidence of sediments having been carried
through the densely vegetated wetland.

Conclusions of Law

        Our law regarding surface water flowing between neighboring properties is well-
established. See, Canton v Graniteville Fire District No. 4, 171 Vt. 551, 552 (2000); Powers v.
Judd, 150 Vt. 290, 292 (1988); Swanson v. Bishop Farm, 140 Vt. 606, 610 91982), citing Scanlon
v. Hopkins, 128 Vt. 626, 631 (1970). An upstream owner has the right to have surface water
pass to lower lands in a natural condition. The downstream owner must accept such flows.
When complaining that flows have been diverted, or increased beyond a pre-existing natural
status, the burden is on the downstream owner to demonstrate wrongful alteration in natural
flows, and a causal connection to injury to the downstream property. See, Canton, citing
Nicholson v. Doyle, 125 Vt. 538 (1966).

        Plaintiff has not met his burden of proof. Under the circumstances presented by the
evidence, his showing was insubstantial in the absence of any expert opinion, lacking proof that
Defendant took some action that altered the natural flow of water between the two properties,
and lacking proof that any such alteration was the cause of damage to Plaintiff’s pond. Rather,
Plaintiff’s evidence as to tortious modification of water flow consisted entirely of the
observations made by himself and Mr. Percey. In turn, this evidence included poorly
                                                  4
documented instances of muddy discharges into the Watson pond, and similarly poorly
documented treks through the wetland during which each witness claims to have followed a
distinct water course up to the Wilkinson pond from where it was discharging into the Watson
pond.

         Even assuming the truth of the accounts of such a stream on the two or three days
during which it was observed, the observations prove little. The credible contrary findings by
experts from the Agency of Natural Resources, as well as Mr. Briggs, establish that there has
been no recent interference with the functioning of the wetland between the two ponds, and
that no steadily flowing stream through the wetland is, or has been, in existence. It is therefore
likely that the observations made by Watson and Percey were related to either a recent
meteorological event resulting in increased flows of surface water, or to exaggeration. Yet,
even had there been a steady stream flowing through the wetland, Plaintiff has failed to show
what action on the part of Defendant would have caused it. In the absence of more robust
proof of acts by Defendant likely to have altered the flow through the wetlands, supported by
expert opinion demonstrating that such acts would probably have had the effect of either
redirecting or increasing such flows, Plaintiff’s belief that muddy discharges into his pond were
caused by Defendant rests on nothing but supposition.

        Within Plaintiff’s logic, he enjoyed decades of enjoyment of a pond whose waters he
described as “crystal clear”, thus there must be some malignant agency that disturbed the
status quo – and Defendant’s upstream location and recent use of excavation equipment made
him the obvious suspect. As explained, however, Plaintiff has not demonstrated sufficient facts
to permit the forging of the many necessary links between suspicion and proof by a
preponderance of the evidence. As Defendant insists, with significant support from Plaintiff’s
own expert on the costs of repair, a pond susceptible to surface water infiltration, as well as
other sources of organic matter, will experience silt accumulation. Defendant admits to having
taken no steps to address the effects of such accumulation for more than 40 years during which
his pond has been in existence. The pond is situated in a large watershed, and despite
Defendant’s disclaimer, it is likely to regularly experience inflows carrying sediment and having
erosive capability. The evident failure of the diversion channel to the east of the berm facing
the Wilkinson property is most probably explained by the natural workings of the drainage
through the wetland, unmitigated by any regular remedial measures. Under all the
circumstances presented by the evidence, that is surely a more plausible explanation than
Plaintiff’s claim that Defendant must have disturbed the natural flow.




                                                5
                                                 ORDER

        WHEREFORE, it is hereby ORDERED : Judgment is entered for Defendant based on
Plaintiff’s failure to prove wrongful diversion of water, and to prove any causal relation to the
claimed injury.




       Electronically signed on February 13, 2014 at 01:59 PM pursuant to V.R.E.F. 7(d).


______________________________________
John P. Wesley
Superior Court Judge




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