Villeneuve v. Powers
Villeneuve v. Powers
Opinion of the Court
Plaintiffs brought an action seeking damages for defendants’ failure to remove a beaver dam on their adjoining property in Underhill. The trial court dismissed the action. We reverse and remand.
Plaintiffs’ property is located upstream from defendants’ property. A stream running through both properties had been blocked by a beaver dam located on defendants’ property, and plaintiffs claimed that the dam caused the stream level to rise and flood, causing damage to their property. Plaintiffs requested that defendants remove the dam or allow plaintiffs to do so, but the requests were refused. Plaintiffs thereafter brought the present action, based on theories of negligence,
The trial court granted defendants’ motion for summary judgment, concluding that § 43(e) superseded all common-law theories of recovery. The court reasoned that both defendants and plaintiffs would need a permit to remove the dam — defendants, since they would not have been acting to protect their own property, and plaintiffs, since they were not an “owner of property” within the meaning of the statute. The court concluded, however, that in the present action the statute relieved defendants of any common-law duty to plaintiffs to act with respect to the dam:
It was not necessary for the defendants to obtain the permit to remove the dam, since the plaintiffs could have obtained a permit and removed it themselves. Nor can it be found that defendants had a duty to act, for one can have no duty to act when one needs a permit to perform the act. Thus, defendants were not negligent. Defendants similarly cannot be found to have acted recklessly, under [10 V.S.A. App. § 43(e)], as plaintiffs assumed the risk of the flooding by not taking the permit action themselves.
The present appeal followed.
The trial court concluded in effect that plaintiffs’ common-law rights were abrogated by § 43(e) and that plaintiffs were left to their statutory remedies, which they should have
In the present case, none of the Langle v. Kurkul factors support an inference that the Legislature intended to override the common law. As for the language of the statute, its explicit purpose is to protect beaver habitat from destruction without a permit from the commissioner, with an exception, in the case of private property, for acts by an “owner of property” suffering damage from a beaver dam. The statute does not charge the commissioner with deciding the tort and riparian rights issues that could arise in such matters, and no procedures are provided for their determination. Moreover, the statute does not provide for remedies or allow entry of judgments appropriate to common-law actions. The statute limits the role of the commissioner to the permit process, and the standards for granting a permit may well be different from those to be applied by a court in a common-law action, where issues and interests beyond those involved in a § 43(e) permit application may be raised.
Nor does the statute “attempt[] to cover the entire subject matter.” Langle, 146 Vt. at 516, 510 A.2d at 1303. The court correctly stated that plaintiffs were under a duty to obtain a § 43(e) permit prior to seeking to remove the beaver dam themselves, but it does not follow that plaintiffs were required to limit their remedies to those available within the statutory permit process. The statute is prohibitory in nature, subject to an exception for an owner of property. Obtaining the approval of the commissioner to waive the bar of § 43(e) would not have authorized plaintiffs as adjacent landowners to enter their
Defendants argue that the trial court’s conclusion as to the preemptive effect of § 43(e) was correct, since they read § 43(e) to require them to obtain a permit from the commissioner before removing the dam, absent damage to their property. They rely on the court’s conclusion that “one can have no duty to act when one needs a permit to perform the act.”
We disagree that the need for a permit precludes a duty to act. Rather, if a permit is required before an act may be performed, then obtaining the permit is simply the first step in performing the act. We need not decide whether defendants would have to obtain a permit to remove the dam, however, because they never approached the commissioner and have denied that plaintiffs’ property was damaged. The questions raised by plaintiffs’ common-law claims are whether defendants have a duty to remove the dam and whether they owe plaintiffs’ damages for their failure to do so. Only if the commissioner were to deny defendants a permit would a question arise as to the reasonableness of their next steps.
Even if defendants are required to proceed under § 43(e) before removing the dam on their property, they offer no reason why that requirement absolves them of duties they might otherwise owe plaintiffs under the common law. The question of who could, or should, have obtained the commissioner’s approval for removal of the dam is separate from the issue of who had the primary common-law duty to address the potentially damaging effects of the beaver dam. It is not uncommon for courts to sort out similar conflicts or apparent conflicts between common-law rights and statutory or regulatory requirements. See, e.g., Murray v. Inhabitants of Town of Lincolnville, 462 A.2d 40, 43 (Me. 1983) (contract for sale of land subject to purchasers’ obtaining environmental and zoning permits remained enforceable notwithstanding statute barring sale of land in subdivision prior to approval by reviewing authority).
Since this action was decided on defendants’ motion for summary judgment, we need not address the question of which, if any, of plaintiffs’ common-law theories apply to the present facts.
Reversed and remanded.
10 V.S.A. App. § 43(e) states:
§ 43 Method of taking
(e) A person shall not interfere in any manner with dams, dens, or houses of beaver except upon special permit in writing from the commissioner, provided, however, that these provisions shall not apply to an owner of property, his employee, tenant, or caretaker protecting the same from damage by beaver, or to the selectmen of a town protecting public highways or bridges from such damage or submersion, with permission of the owners of lands affected.
Reference
- Full Case Name
- Richard Villeneuve and Ardelle Villeneuve v. Nathan Powers and Marjory Powers
- Cited By
- 1 case
- Status
- Published