SCOVT affirms dismissal of constitutional and common law tort claims under the six-year statute of limitations where suit was filed more than six years after defendant's construction of improvements that periodically directed stormwater toward plaintiff’s land, holding that none of the claims are for recovery of land subject to the fifteen-year statute and that the continuing tort doctrine, which Vermont has not adopted, would in any event not apply since no "tortious act" occurred within the general six-year limitations period.

 

Nesti v. Agency of Transportation, 2023 VT 1 

 

CARROLL, J. Landowner Frances Nesti appeals two civil-division orders resolving multiple claims in favor of the Vermont Agency of Transportation (VTrans) on grounds of statute of limitations. We affirm.

 In 2006, VTrans rebuilt Route 7 in South Burlington and Shelburne. The project included constructing a new, enclosed stormwater-drainage-management system that directed stormwater downhill from the road in a westerly direction toward Lake Champlain. Nesti’s property lies west of Route 7 and abuts the lake.  Nesti filed suit on December 31, 2018, pleaded takings, trespass, and private-nuisance claims, seeking damages and injunctive relief arising from stormwater runoff that began forming in a ravine sometime after the completion of the project.

 

The court found on motion under Rule 12(b)(6 ) that Nesti was on notice that her claims accrued before December 31, 2012 (a conclusion Nesti does not challenge on appeal, except to claim continuing accrual). This  was the cutoff date for her December 31, 2018, complaint under 12 V.S.A. § 501, if it applies.

 

The court permitted Nesti’s trespass and nuisance claims to proceed to summary judgment on the question of whether they were continuing torts.  However, on summary judgment, the court determined that the lack of any tortious conduct within the limitations period would take the case out of the doctrine’s operation. The court entered judgment for VTrans on all claims. 

 

On appeal Nesti makes essentially four arguments: (1) her takings (inverse condemnation) claim  is not time-barred because it is subject to the fifteen-year limitations period for bringing claims to recover lands under 12 V.S.A. § 501; (2) to the extent the takings claim is time-barred under 12 V.S.A. § 511, it violates the federal and Vermont Constitutions; (3) her trespass and nuisance claims are also subject to 12 V.S.A. § 501; and (4) if § 501 does not apply to the tort claims, they are not time-barred under the continuing-tort doctrine

 

(1)

An inverse condemnation claim is not an action for the recovery of land

Nesti argues that her takings claim is subject to the fifteen-year statute of limitations for bringing actions to recover lands under 12 V.S.A. § 501,  not the general six-year statute of limitations for civil actions under 12 V.S.A. § 511.

12  V.S.A § 501 provides

[A]n action for the recovery of lands, or the possession thereof, shall not be maintained, unless commenced within 15 years after the cause of action first accrues to the plaintiff or those under whom he or she claims.

Nesti argues, in effect, that because VTrans could obtain a prescriptive easement or adversely possess her property only  after the fifteen-year limitations period, her takings claim cannot be cut off at six years under § 511 because that would be tantamount to granting the State a property interest without just compensation nine years before it could make out a prima facie claim of adverse possession  for such an interest.  We disagree. 

Adverse possession and takings claims are distinct causes of action and subject to different limitations periods because each is a product of contrasting public policy choices.  The fifteen-year state, 12 V.S.A. § 501, does not apply to inverse condemnation claims under Vt. Const. ch. I, art. See Dep’t of Forests, Parks & Recreation v. Town of Ludlow Zoning Bd., 2004 VT 104, ¶ 6.

(2)

 Constitutional arguments raised below but not addressed by the trial court will not be considered on appeal.

Nesti next argues that barring her takings claim under § 511 violates the federal and Vermont Constitutions. However the civil division did not actually address this argument in either its summary-judgment order or on the State’s motion to dismiss.  Nesti did  not assign error to the civil division’s failure to address her constitutional arguments This  results in waiver in this Court. See State v. Nash, 2019 VT 73, ¶ 18, 211 Vt. 160, 221 A.3d 386 (holding that issues not challenged for plain error on appeal are waived without review); see also V.R.A.P. 28(a)(3) (requiring appellants to provide, among other things, “specific claims of error”). Accordingly, we do not address the merits of this argument.

(3)

 Trespass and nuisance claims are not actions for the recovery of lands.

Nesti next argues that her tort claims are  “an action for the recovery of lands, or the possession thereof” under  12 V.S.A. § 501, not governed by  12 V.S.A. § 511.

 

a) Trespass

 Liability for trespass arises when one intentionally enters or causes a thing to enter the land of another. Thus, one who causes water to enter the land of another is liable for trespass.

 

 We have held that trespass claims are subject to the six-year statute of limitations provided by 12 V.S.A. § 511. Jadallah v. Town of Fairfax, 2018 VT 34, ¶ 16, 207 Vt. 413, 186 A.3d 1111 (holding that appellant’s claims, including trespass, “are all civil” rendering them subject to “the six-year period under § 511”); Wheeler v. Town of St. Johnsbury, 87 Vt. 46, 51-52, 87 A. 349, 351-52 (1913) (same).

 

Nesti is correct that she has fifteen years to bring an action to recover lands under § 501, but she is incorrect that she has fifteen years—or more—to bring a trespass action from the date on which the trespass cause of action accrues. The aggrieved party has the full six-year period to file a trespass claim, and the full fifteen years to recover lands under § 501. It is simply not true that affirming the civil division will mean “trimming” nine years off the fifteen years permitted by statute to recover lands.; instead, she failed to file her trespass  complaint within the six years the Legislature provided for such actions.

 

b) nuisance

Private nuisance is “a substantial and unreasonable interference with a person’s interest in the use and enjoyment of land.” A claimant has six years to bring a nuisance cause of action following the causes of action’s accrual. Alpstetten, 137 Vt. at 512-13, 408 A.2d at 646 14 (“The appellant alleged a tortious act resulting in an interference with the use and enjoyment of his property. Accordingly, the six[-]year statute of limitations is applicable.”)

 

(4) No continuing tort

Nesti’s final argument is that her trespass and nuisance claims are timely under the continuing-tort doctrine, and she asks this Court to apply the doctrine for the first time.  Nesti argues that she suffers a continuing harm with “each rush of water creating a fresh harm for which a new [cause of action] should accrue.”

 

The continuing tort doctrine requires “at least two elements: a continuing wrong, and some action contributing to the wrong that occurred within the limitations period.” Gettis v. Green Mountain Economic Development Corp., 2005 VT 117¶ 25. The contributing action cannot be “simply the continuing ill effects of prior tortious acts,” Id. ¶ 28.

 

VTrans has made no material change to the system since 2006.  Nesti has not alleged that VTrans committed a tortious act after the 2006 reconstruction. Without at least one such act occurring within the six-year limitations period, we are unpersuaded by Nesti’s argument because, even if we adopted the doctrine, it would not apply in this case. Accordingly, Nesti’s tort claims are time-barred.

 

Affirmed.

How cited

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SCOVT NOTE:  This case is puzzling because it seems to determine the applicable statute by reference to the legal theory (nuisance, trespass, inverse condemnation) rather that the nature of the harm or relief requested.  That is, an action for trespass or ejectment that seeks return of possession could be potentially be treated differently under the 15-year statute than one that sought only damages. (In this case the  trial court dismissed Nesti's ejectment causes of action for failing to state a claim, and Nesti did not appeal that determination.) The holding that an inverse condemnation claim is not governed by the 15-year statute can only be explained by defining an inverse condemnation claim as one seeking only damages for an unconstitutional taking.

Neither Jadallah nor Wheeler, cited by the Court, held that § 511 applies to “trespass claims.” Section 511 is the general civil statute of limitations that applies “unless as otherwise provided." -- when no other statute is applicable. Jadallah merely held that § 511 governed in that case because “appellant has not presented any reason to this Court that any statute of limitations other than the six-year period under § 511 is applicable.” 2018 VT 34, ¶ 16.

The Wheeler Court expressly did not decide if the six-year statute applied. It reversed a dismissal on the pleadings based on the six- year statute because the allegations supported a continuous accrual theory, invoked equity jurisdiction based on a  continuous trespass; and in event the six -year statute did not bar claims for injury within the most recent six-year period. The Court remanded the case in language that seems to support, rather than reject, a "continuing tort" theory that looks at when the harm, not the tortious act, occurred:

As to the statute of limitations, the demurrer is too large, for it goes to the whole bill, whereas, if good at all, which we do not decide, it is good only for what lies back of the statutory period, for the case is one of continuous injury without fresh violence, and of constantly accruing damages, the statute can cut off only back of six years from suit brought.

Wheeler v. Town of St. Johnsbury, 87 Vt. 46, (1913) (emphasis added) (citing precedent elsewhere establishes that a wrongful continuous flowing of land by means of a dam is a continuing injury, and affords a constantly accruing cause of action) 

Plaintiff Nesti's reply brief alerted the Court to no avail that Wheeler did not hold the six-year statue applies to trespass claims but instead supported the continuing trespass theory: 

VTrans' also relies on Wheeler v. Town of St. Johnsbury 87 Vt. 46, 51-52 (1913) as support for the imposition of a six-year statute of limitations to trespass claims. Wheeler does not support VTrans. Rather Wheeler stands for the opposite position and supports Appellant. In Wheeler this Court explained that where there was a continuous trespass (say the continued diversion of water) that gives rise to constantly accruing causes of action, dismissal under a six-year statute isn't warranted (though damages may be limited). Id. at 349. Thus the Wheeler Court reversed a denial of claims on the basis of a six-year statute of limitations claim when there was a constant trespass. 

A puzzling case indeed.  A case well-briefed, but the briefs were unread.