John Larkin, Inc. v. Marceau
184 Vt. 207, 959 A.2d 551, 2008 VT 61 (2008)
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Rule of Law:
A claim of trespass based on the invasion of intangible airborne particulates, such as pesticides, cannot survive summary judgment without evidence demonstrating a physical impact on the property.
Facts:
- J. Edward Marceau, Jr. operated an apple orchard on his property, which involved spraying pesticides.
- John Larkin, Inc. and Larkin Family Partnership (Larkin) owned undeveloped land adjoining Marceau's orchard, which they had purchased to build a residential development.
- Larkin submitted an application to the District 4 Environmental Commission for a 122-unit residential development.
- During the permit process, Marceau expressed concern about potential conflicts and asked the commission to impose a buffer zone between his orchard and the proposed development.
- Larkin alleged that winds carried detectable levels of pesticides from Marceau's orchard onto its property.
- The commission denied Larkin's development application on grounds unrelated to the pesticide issue, specifically for failing to satisfy criteria concerning agricultural soils and development density.
Procedural Posture:
- Larkin filed suit against Marceau in superior court, alleging trespass and seeking injunctive and compensatory relief.
- Marceau answered, raising Vermont's right-to-farm law as a defense and arguing the claim was actually one for nuisance.
- After discovery, Marceau moved for summary judgment, and Larkin filed a cross-motion for summary judgment.
- The superior court concluded that the suit sounded in nuisance rather than trespass but declined to grant summary judgment to either party on that basis.
- The parties subsequently stipulated to dismiss any claims sounding in nuisance.
- The superior court entered a final judgment against Larkin, who is the appellant here.
- Larkin appealed the judgment to the Supreme Court of Vermont.
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Issue:
Does the dispersion of airborne pesticide particulates onto a property, without any evidence of physical impact or damage, constitute a trespass sufficient to survive a motion for summary judgment?
Opinions:
Majority - Johnson, J.
No. A landowner cannot sustain a trespass action based on the invasion of intangible airborne particulates without demonstrating a physical impact on the property. The court distinguished between trespass, which protects the interest in exclusive possession, and nuisance, which protects the interest in use and enjoyment. While acknowledging the 'modern view' that intangible invasions could be trespass if they cause substantial damage, the court declined to formally adopt it. Instead, it held that to maintain a trespass claim for airborne particles, a plaintiff must show more than their mere presence. Larkin failed to meet this evidentiary burden, offering no depositions, expert testimony, or other evidence showing that the pesticides had any physical impact or deprived it of the exclusive possession of its property. Larkin's claim relied solely on a 'bald assertion' of ouster based on Marceau's request for a buffer zone, which does not constitute the requisite physical impact to support a trespass action.
Analysis:
This decision establishes an evidentiary floor for trespass claims involving intangible airborne particulates in Vermont, effectively pushing such cases toward nuisance law. By requiring a 'demonstrated physical impact,' the court sidesteps the broader question of whether particulates can ever constitute a trespass while making it significantly harder for plaintiffs to succeed on such a theory. This holding protects landowners, particularly farmers under right-to-farm laws, from trespass liability for minor, non-damaging encroachments like light chemical drift, smoke, or odors, forcing plaintiffs to meet the higher 'substantial injury' standard of nuisance law.
