Graham v. Town of DuxburyGraham v. Town of Duxbury
The design for Morse Road was reviewed and approved by the State of Vermont Agency of Transportation. The Town of Duxbury took over Morse Road as a Class 3 town road after Morse obtained all necessary permits. The Town has maintained the road, the culvert, and the ditch since that time, but has never performed any maintenance on the swale located on the Grahams’ lot.
At the time the Grahams purchased their property, the swale was visible. Also visible werе the gravelly and unstable soils on the rear of the property. In fact, Morse had once used the property as a gravel pit.
The events in issue occurred on August 7, 1997 when there was a very heavy downpour that washed out part of Morse Road. The downpour also eroded away a large chunk of the bank on plaintiffs’ land where the water left the swale and plunged down to the stream. It left a canyon-likе gully emanating from the swale.
After discovering the erosion, Emily Graham contacted the chair of the Town’s selectboard, who promised to inspect the problem and have the culvert cleared. Thе Town cleared sand from the culvert the next day, although it is not clear that the condition of the culvert caused the erosion on the Grahams’ property. 2 The Town took no action to repair or revise the original drainage system Morse had designed and constructed. The Grahams then sought professional assistance to help prevent further erosion on their property, as well as the threat of future erosion to neighboring properties and to Morse Road, and eventually took action on their own, expending $14,289 to revise the drainage system on their property.
In April 1998, the Grahams filed a claim аgainst the Town of Duxbury in Washington Superior Court seeking to recover their expenditures to address the drainage problem, as well as other unspecified damages. After a bench trial, the court concludеd that the Town was not negligent as
In its appeal, the Town presents three arguments to this Court: (1) sovereign immunity completely bars the Grahams’ claim; (2) even if sоvereign immunity does not bar recovery, the Town has no duty to pay for the repairs to the drainage system located on the Grahams’ properly; and (3) 19 V.S.A. § 985 was the Grahams’ only avenue of relief, and they failеd to avail themselves of it. Because the Town challenges only the court’s legal conclusions and not its factual findings, our review is plenary and nondeferential.
Maciejko v. Lunenberg Fire Dist. No.
2,
Municipal sovereign immunity is a common-law doctrine which dates back to the mid-1800s in Vermont.
Hillerby v. Town of Colchester,
Our precedents set forth an exception to municipal immunity in circumstances where а town fails to repair a culvert necessary to allow a natural stream to pass unimpeded under a public roadway after notice that the culvert is not functioning as intended.
Haynes v. Town of Burlington,
Although a town may be liable for subsequent damage to surrounding property
The trial court questioned the modern desirability of a distinction between a strеam and runoff water, pointing out that it can be difficult to distinguish one from the other. We note that courts in other jurisdictions have generally treated diffuse surface water (runoff water) differently from other surface wаter. See generally 2 R. Beck (ed.), Waters and Water Rights § 10.03 et seq. (1991 ed. 2000 replacement vol.) (describing the law of diffuse surface water). We decline to revisit the distinction on this record. Under Sanborn, the Town in this case was immunе from any liability for damage to the Grahams’ property because the drainage system at issue protected Morse Road from water runoff. There was no allegation or finding that a natural stream caused the Grahams’ damages as required by Haynes.
Even if the trial court were correct that there was no immunity because Haynes controlled here, it misapplied Haynes and proceeded to fashion a new standard for negligence. The trial court found that the Town had no reason to know, that the drainage system at issue may not be able to handle strong water runoff and thus was not negligent any time prior to the date the Grahams discovered the erosion near the swаle. The court then concluded that the Town was negligent for failing to take remedial action after it had notice of the problem on the Grahams’ property and after the damage had already been done. In essence, the trial court found that if another similar runoff occurred as a result of a large rain storm, the Town would be negligent and liable for any further erosion. Thus, it required the Town to pay for сorrective action in anticipation of further damage.
Liability for negligence requires some showing of harm proximately caused by the defendant’s breach of duty, however. See
Rubin v. Town of Poultney,
The Grahams urge that we affirm on the theory that the erosion constituted a taking by the Town without just compensation. They did not include this claim in their complaint. Although they referenced such a theory earlier, they never squarely raised it until their closing argument following the close of the evidence. The Town objected to the introduction of the theory as coming too late. The triаl court rejected it summarily, and the Town again objects to it being raised here. We agree that the claim was not properly raised below. See
Limoge v. People’s Trust Co.,
The Town also challenges the trial court’s conclusion that 19 V.S.A. § 985(a)
Reversed.
Notes
We have simplified the directiоns to make the facts easier to comprehend.
In their complaint, plaintiffs claimed that the erosion was caused when the culvert became plugged and the water flowed over the Morse Rоad into the swale. The trial court found that the culvert did become plugged, but also that no one saw water flow across Morse Road into the swale. Plaintiffs admit in their brief that the condition of the culvert had nothing to do with their damages.