Walters v. Laverdiere

STATE OF MAINE SUPERIOR COURT
KENNEBEC, SS. Docket No. RE-16-04

)
MATTHEW WALTERS AND )
JENNIFER WALTERS, AS )
TRUSTEES OF THE JENNIFER L . ) DECISION AND ORDER ON
WALTERS REVOCABLE TRUST, ) DEFENDANT'S MOTION FOR
) SUMMARY JUDGMENT
Plaintiffs, )
)
v. )
)
BRENDA R. LAVERDIERE, )
)
Defendant. )

INTRODUCTION

Before the court is the Defendant's Motion for Summary Judgment on
all counts of the Second Amended Complaint.
The Plaintiffs are Matthew and Jennifer Walters, as Trustees of the
Jennifer L. Walters Revocable Trust, hereinafter referred to as the Walters or
the Trust. The Trust owns the real property located at 29 Sunset Drive in
Manchester, which is where the Walters reside. The prope1iy was acquired
by the Trust in 2013.
The Defendant is Brenda Laverdiere, who owns the real property
located at 39 Silver Beach Road in Manchester. Ms. Laverdiere's property
abuts the property owned by the Trust. Ms. Laverdiere, and her then husband,
acquired the property in 1998.
This case involves allegations by the Walters that Ms. Laverdiere's
construction of a boathouse on her property in 2015-2016, and landscaping

1
work done in 2016, resulted in serious soil erosion and water runoff onto the
Trust property. The Trust commenced this action against Laverdiere in
February 2016. The Second Amended Complaint, which is the operative
complaint in this case, alleges: common law nuisance relating to the 2015
boathouse construction (Count I); statutory nuisance pursuant to 17 M.R.S. §
2808 relating to the 2015 boathouse construction (Count II); statutory
nuisance pursuant to 17 M.R.S. § 2801 alleging the erection of a "spite fence"
in 2016 (Count III); common law nuisance relating to the landscaping work
done in 2016 (Count IV); statutory nuisance pursuant to 17 M.R.S. § 2808
relating to the 2016 landscaping work (Count V), and; injunctive relief(Count
VI).
In an Order dated October 20, 2018, the court denied Laverdiere's
initial motion for summary judgment on the basis that the Walters had failed
to designate an expert witness on the issue of whether any boathouse
construction work on the Laverdiere property caused any flooding to occur on
the Walters's property. Moreover, the court granted the Walters's motion to
file the Second Amended Complaint to allege that the 2016 landscaping work
constituted a common law nuisance (Count IV) or a statutory nuisance under
17 M.R.S. § 2808 (Count V).
Laverdiere has now moved for summary judgment on all counts of the
Second Amended Complaint. The factual background described below is
taken from the summary judgment record. 1

1
The court is constrained to observe that the Plaintiffs' Response to the Defendant's
Statement of Material Facts does not appear to be the "separate, short, and concise"
statement contemplated by the rule. M.R.Civ.P. 56(h)(l) & (2). The court has disregarded
those portions of the Response that it finds unnecessarily argumentative.

2
FACTUAL BACKGROUND
In 2012-2013, the Walters built the home that now occupies the
property at 29 Sunset Drive. As part of that construction project, the Walters
retained the services of an engineer to design and oversee the installation of a
surface water and drainage system on the property. The Walters completed
their construction project in 2013.
In 2015 and into 2016, Ms. Laverdiere began construction of a "32 X
36 Boathouse with 15 X 17 Porch Water Treatment Room" (the "Boathouse").
Roughly two years earlier, in December 2013, Laverdiere had received a
permit from the Town of Manchester for the construction of the Boathouse.
It is alleged that during and after this construction on the Laverdiere property,
the Walters began to experience significant soil erosion and surface water
runoff onto their property.
The parties have major factual disputes as to the amount of water runoff
that occurred prior to and after the Laverdiere Boathouse construction project.
For example, Ms. Laverdiere has asserted that she observed water runoff and
standing water problems on the Walters's property on numerous occasions
between 1998 and 2015, prior to the construction of the Boathouse.
Moreover, Laverdiere has implied that some of the water runoff problems
experienced by the Walters only occurred after the Walters completed their
construction project in 2013. For their part, the Walters assert that surface
water runoff had never been a persistent problem on their property prior to the
construction of the Boathouse.
In October 2015, while the Boathouse construction project was m
progress, the Walters sent a letter to the Laverdieres complaining about the
water runoff and asking that it be remedied. The Walters and the Laverdieres
were not able to resolve their dispute at that time, and the Trust initiated this

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lawsuit in February 2016. While the complaint was pending, the Walters
alleged that Laverdiere performed additional landscaping work on her
property that included the removal of trees and the addition of fill that altered
the slope of the land, thereby causing new flooding of a different area of the
Trust property. Furthermore, the Walters alleged that in May 2016,
Laverdiere erected a 165-foot wooden fence along her property line with the
Walters and that the fence was a "spite fence" because of its height and
placement near the property line. 2
LEGAL STANDARD

Summary judgment is appropriate if, based on the parties' statements
of material fact and the cited record, there is no genuine issue of material fact,
and the moving party is entitled to a judgment as a matter of law. M.R. Civ.
P. 56(c); Levine v. R.B.K. Caly Corp., 2001 ME 77, if 4, 770 A.2d 653. It
follows that to survive a moving party's motion for summary judgment, the
non-moving party must establish a prima facie case for each of their claims
and set forth specific facts showing there is a genuine issue of material fact.
Key Trust Co. ofMaine v. Nasson College, 1997 ME 145, ,r 10,697 A.2d 408;
see also M.R. Civ. P. 56(e). As the Law Court has recently stated: when a
defendant moves for summary judgment, the defendant has the burden of
demonstrating "that there is no genuine issue of material fact and that the
undisputed facts" entitle the defendant to judgment as a matter of law. Toto
v. Knowles, 2021 ME 51, ,r 9. It then becomes the plaintiffs responsibility to
make out a prima facie case and show that there are disputed facts. Id. A fact
is material if it has the potential to affect the outcome of the suit. Id. To be

2
The court is not entirely clear when the fence was erected. The Second Amended
Complaint alleges May 2016. The deposition testimony of Ms. Laverdiere refers to a
fence being installed as part of the "2013 renovation project."

4
considered "genuine," there must be sufficient evidence offered to raise a
factual contest requiring a fact finder to choose between competing versions
of the truth. Rainey v. Langden, 2010 ME 56, ,r 23, 998 A.2d 342; Burdzel v.
Sobus, 2000 ME 84, ,r 6, 750 A.2d 573. Further, this showing "requires more
than effusive rhetoric and optimistic surmise." Hennessy v. City of Melrose,
194 F.3d 237, 251 (1st Cir. 1999). The Court must ignore "conclusory
allegations, improbable inferences, and unsupported speculation." Carroll v.
Xerox Corp., 294 F.3d 231,237 (1st Cir. 2002).

DISCUSSION
Laverdiere seeks summary judgment on Counts I and IV of the Second
Amended Complaint, which purport to assert claims for common law
nuisance/trespass, on the ground that such a cause of action pertaining to
"surface water flow" no longer exists. Laverdiere contends that the common
law with respect to "surface water flow," has been abrogated by and replaced
with the statutory nuisance cause of action created by 17 M.R.S. § 2808,
which forms the basis for Counts II and V in this action. As to those counts,
and the statutory nuisance claim regarding the fence (Count III), Laverdiere
maintains that she is entitled to summary judgment because, as a matter of
law, the Walters have failed to make out a prima facie case.
A. Common Law Nuisance for Surface Water Flow
It has been said that there is "no clear English common law on the
subject" of the right of a landowner to drain surface waters on the landowner's
property. See Weldin Farms, Inc. v. Glassman, 414 A.2d 500, 502 (Del.
1978). In the United States it appears that the courts have recognized three
theories or doctrines about surface water flow. The first such doctrine is
known as the "common enemy" rule, which "declares that surface water

5
which does not flow in defined channels is a common enemy and that each
landowner may deal with it in such manner as best suits his own convenience."
Argyelan v. Haviland, 435 N.E.2d 973, 975 (Ind. 1982).
The second doctrine, said to be "diametrically opposed" to the common
enemy rule, is the "civil law," also referred to as the "natural flow" rule, which
proscribes interfering with or altering the natural flow of surface water. Id.
See also Weldin Farms, 341 A.2d at 502; Butler v. Bruno, 341 A.2d 735, 738
(R.I. 1975).
The benefit of these two doctrines is their predictability. The downside
is their lack of flexibility. Argyelan, 435 N.E.2d at 975.
A third doctrine has evolved, said to be better suited to the realities of
modern land use and development, and referred to as the "reasonable use"
rule. Weldin Farms, 414 A.2d at 506. This doctrine appears to have been first
articulated in New Hampshire. As stated in Micucci v. White Mountain Trust
Co., 321 A.2d 573, 575 (N.H. 1974), cited by many courts as the leading case
on the subject, "[t]he law in New Hampshire has been long established that a
property owner may use, manage and control the diffused surface waters on
his land in any manner so long as it is reasonable in view of his own interest
and that of all other persons thereby affected." A form of the "reasonable use"
rule is described in the Restatement (Second) of Torts, § 833.
The "reasonable use" doctrine looks at a number of factors, including
the extent of the owner's alteration of the flow of surface water, the nature
and importance of his use of the land, the foreseeability of the harm to others,
and the amount of the resulting injury. Micucci, 321 A.2d at 575. See also
Butler v. Bruno, 341 A.2d T 740; Enderson v. Kelehan, 32 N.W.2d 286 (Minn.
1948). The reasonable use doctrine is flexible enough to deal with each case
on a fact-specific basis, but it lacks the "absolute" predictability of the

6
"common enemy" doctrine and the "civil law" rule. Weldin Farms, 414 A.2d
at 502. The "reasonable use" rule has been described as representing a shift
from a property law analysis to a tort law analysis. Restatement (Second) of
Torts, § 833, Reporter's Notes.
In Maine, the Law Court has recognized and applied the "modified
common enemy" doctrine, which states that, while a landowner "may control
the flow of mere surface water over his own premises ... without obligation
to any proprietor either above or below," the landowner "may nevertheless be
liable for creating an artificial collection of water and discharging it onto
land." Harris v. Woodlands Club, 2012 ME 117, ,r,r 18-19, 55 A.3d449 citing
and quoting Johnson v. Whitten, 384 A.2d 698, 700 (Me. 1978).
In 2006, however, the Legislature enacted 17 M.R.S. § 2808, which
provides:
Unreasonable use of land that results in altered flow of
surface water that unreasonably injures another's land or that
unreasonably interferes with the reasonable use of another's land
1s a nuisance.

This legislation originated as L.D. 816 in the First Regular Session of
the 122nd Maine Legislature as "An Act to Prohibit Changing the Flow of
Water on Another's Land." The actual language of the bill, however, only
addressed "draining or reversing the direction of' the water of a river, stream,
pond or aquifer from its natural course or state to the injury or prejudice of
others. The bill was referred to the Committee on Natural Resources, which
issued a divided report referring the bill to the Judiciary Committee. As a
result, the bill was carried over to the Second Regular Session. See Vol. 1,
Leg. Record, 1st Reg. Sess. 122nd Legis. at H-353-54 (April 5, 2005).

7
In the Judiciary Committee the bill was replaced by Committee
Amendment "A" (Filing No. S-542) titled. "An Act to Replace the Common
Enemy Rule with Regard to Changing the Flow of Surface Water." The
amendment created 17 M.R.S. § 2808, quoted above. The "Summary"
accompanying the amended bill stated, in part:
This amendment is intended to change the principle of
legal liability in this State concerning altering the flow of surface
water that results in injury to another person's land or injury to
the use of another person's land. This amendment rejects the
common enemy rule reaffirmed in Johnson v. Whitten, 384 A.2d
698 (Me. 1978) and adopts the reasonable use rule as stated in
Micucci v. White Mountain Trust Company, 114 N.H. 436, 321
A.2d 573 (1974).

The sponsor of the bill, as originally drafted and as later amended, was
Senator Andrews of York, who spoke on the floor of the Senate on April 3,
2006 and explained how the bill came to be and what it was designed to do.
The bill was apparently inspired by the situation encountered by a summer
resident of York, whose neighbor "built a year-round house next door to her
and added something like 10 to 12 yards of fill. In the process of adding this
fill, it caused all the surface water to come down onto her property and literally
cover her septic tank." As recounted by Senator Andrews, the woman sought
legal advice but "was told by her lawyer that she had no protection and no
standing in court for this kind of damage." She added:
We now have a unanimous committee report. What it does
is replaces the Common Enemy Rule, which state [sic] had
operated under for over 200 years, with the Reasonable Use Rule
for Flow of Water, which 47 other states have adopted. This is
one woman and this legislature working three years to change a
200-year-old standing law in the State of Maine. This means that
in the future if someone feels that they have been aggrieved by

8
this sort of thing, they can at least go to court and attempt to
recoup their damages.
Senate Legislative Record, April 3, 2006 at S-1748.

Title 17 M.R.S. § 2808 became effective on January 1, 2007 and applies
"to causes of action accruing on or after" that effective date. See P.L. 2005,
c. 564, §§ 2 & 3. See also Harris v. Woodlands Club, 2012 ME 117, ~ 18, n.
9. Laverdiere contends that the Legislature's enactment of 17 M.R.S. § 2808,
and its legislative history, clearly shows that the "common enemy doctrine"
pertaining to the flow of surface water has been abolished in Maine for causes
of action accruing on or after January 1, 2007. Accordingly, she argues that
Counts I and IV of the Second Amended Complaint do not state viable causes
of action and she is entitled to summary judgment on those counts. The court
agrees.
The Law Court has stated that "the common law is not to be changed
by doubtful implication, be overturned except by clear and unambiguous
language, and that a statute in derogation of it will not effect a change thereof
beyond that clearly indicated either by express terms or by necessary
implication." Valente v. Bd. of Envtl. Pro., 461 A.2d 716, 718 (Me. 1983).
See also Batchelder v. Realty Res. Hospitality, LLC. , 2007 ME 17, if 23, 914
A.2d 1116. The court concludes that the Legislature was clear and explicit it
its intent to replace the common enemy doctrine as recognized by the Law
Court and replace it with the "reasonable use" rule as enacted in 17 M.R.S. §
2808.
Summary judgment will be granted to Laverdiere on Counts I and IV
of the Second Amended Complaint. 3

3
Even if the common enemy doctrine still applied to this case, the court would still grant
summary judgment to Laverdiere on Counts I and IV because there is no genuine issue of

9
B. Statutory Nuisance - 17 M.R,S. § 2808
Laverdiere also maintains that she is entitled to summary judgment on
Counts II and V of the Second Amended Complaint because there is no
genuine issue of material fact that either her 2015 Boathouse construction
(Count II) or her 2016 landscaping project (Count V) constituted an
"unreasonable use" of her land that "unreasonably" injured the Walters's land
or "unreasonably" interfered with the "reasonable" use of their land. 17
M/R/S. § 2808. The court concludes that summary judgment on Counts II
and V is not appropriate because there remain genuine issues of material fact
in dispute on the question of the reasonableness of Laverdiere's use of her
land and whether such use amounted to an unreasonable injury to or
interference with the Walters's property.
The Law Court has not had occasion to apply and interpret the language
of 17 M.R.S. § 2808. See Halliday v. Henry, 2015 ME 61, 116 A.3d 1270
(action brought pursuant to section 2808 but decided on statute of limitations
grounds). Cases from other jurisdictions, however, appear to be in agreement
that under the "reasonable use" rule, "[t]he issue of reasonableness is a
question of fact to be determined in each case upon the consideration of all
relevant circumstances." Butler v. Bruno, 341 A.2d at 739. See also Braham
v. Fuller, 728 P.2d 641, 644 (Alaska, 1986) (applying reasonable use rule
where landowner caused permafrost to melt and flood adjacent property ­
summary judgment not appropriate because reasonableness of conduct was a
question of fact); Weldin Farms, 414 A.2d at 505 (facts of each case must be
examined according to the criteria of the reasonable use standard); Argyelan

material fact that Laverdiere created any type of artificial collection of water and
discharged it upon the Walters's property.

10
v. Haviland, 435 N.E.2d at 989 (Hunter, J., dissenting) (surface water disputes
are "extremely fact sensitive").
Here, there are genuine issues of disputed fact as to whether Laverdiere
took reasonable precautions to mitigate or avoid the flow of surface water onto
the Walters' s property before and during the 2015 Boathouse construction or
the 2016 landscaping project. Accordingly, Laverdiere' s motion for summary
judgment will be denied as to Counts II and V of the Second Amended
Complaint.
C. The Spite Fence Law -17 M.R.S. § 280 I
"Any fence or other structure in the nature of a fence, unnecessarily
exceeding 6 feet in height, maliciously kept and maintained for the purpose
of annoying the owners or occupants of adjoining property, shall be deemed
a private nuisance." 17 M.R.S. § 2801.
Laverdiere claims that she is entitled to summary judgment as to Count
III because there is no evidence in the record to conclude that the fence she
erected was or is a spite fence. She concedes, however, that portions of the
fence are higher than 6 feet, but she represents that any portions of the fence
exceeding 6 feet will be trimmed, although the court is not aware that this has
been done.
It is not necessary that malice and the intent or purpose to annoy be the
"sole" motive for building a fence that unnecessarily exceeds 6 feet. Rather,
it is enough if malice was the dominant motive, "meaning that without that
malicious motive, the fence would not have been erected or maintained."
Tranjield v. Arcuni-English 2019 ME 135, ~ 9, 215 A.3d 222. Like the
question of reasonableness, the issue of malice is a question of fact.
Moreover, given the relationship between Laverdiere and the Walters, and the
history of their dispute and the inferences one can draw from the ongoing

11
nature of that dispute, the couti concludes that resolution of this claim by way
of summary judgment is not appropriate, as there remain genuine issues of
material fact to be resolved by the factfinder. Laverdiere's motion for
summary judgment on Count III of the Second Amended Complaint will be
denied.
CONCLUSION
The entry is:
Defendant's Motion for Summary Judgment is GRANTED IN PART
AND DENIED IN PART. Summary Judgment is GRANTED in favor of
Defendant Laverdiere as to Counts I and IV of the Second Amended
Complaint. Laverdiere's motion for summary judgment is DENIED as to
Counts II, III and V of the Second Amended Complaint.

reference in accordance with M.R. Civ. P. 79(a).
------
The Clerk is directed to incorporate this Order into the docket by
/
/

DATE: November 22, 2021

Justice, Superior Court

I
Entered on the docket \ I Z.3 jW :2 I

12
SUPERIOR COURT
KENNEBEC, ss.
Docket No AUGSC-RE-2016-00004

MATTHEW WALTERS (TRUSTEE) - PLAINTIFF
PO BOX 55
DOCKET RECORD
MANCHESTER ME 04351
Attorney for: MATTHEW WALTERS (TRUSTEE)
EDMOND BEAROR - WITHDRAWN 12/21/2016
RUDMAN & WINCHELL
PO BOX 1401
84 HARLOW STREET
BANGOR ME 04402-1401

Attorney for: MATTHEW WALTERS (TRUSTEE)
ALLISON A ECONOMY - WITHDRAWN 12/21/2016
RUDMAN & WINCHELL
PO BOX 1401
84 HARLOW STREET
BANGOR ME04402-I401

Attorney for: MATTHEW WALTERS (TRUSTEE)
JOSHUA RANDLETT - WITHDRAWN 12/21/2016
RUDMAN & WINCHELL
PO BOX 1401
84 HARLOW STREET
BANGOR ME 04402-1401

Attorney for: MATTHEW WALTERS (TRUSTEE)
TIMOTHY BRYANT - RETAINED 12/09/2016
PRETI FLAHERTY BELIVEAU PACHIOS LLP
ONE CITY CENTER
PO BOX9546
PORTLAND ME 04112-9546

JENNIFER WALTERS (TRUSTEE) - PLAINTIFF
PO BOX 55
MANCHESTER ME 04351
Attorney for: JENNIFER WALTERS (TRUSTEE)
ALLISON A ECONOMY - WITHDRAWN 12/21/2016
RUDMAN & WINCHELL
PO BOX 1401
84 HARLOW STREET
BANGOR ME 04402-1401

Attorney for: JENNIFER WALTERS (TRUSTEE)
TIMOTHY BRYANT - RETAINED 12/09/2016
PRETI FLAHERTY BELIVEAU PACHIOS LLP
ONE CITY CENTER
PO BOX 9546
PORTLAND ME 04112-9546

vs
BRENDA R LAVERDIERE - DEFENDANT
408 WEST ELM STREET
YARMOUTH ME 04096

RE-200 Page l of 22 Printed on: 11/23/2021
AUGSC-RE-2016-00004
DOCKET RECORD

Attorney for: BRENDA R LAVERDIERE
THOMAS BRENDAN FEDERLE - WITHDRAWN 01/15/2017
FEDERLE LAW LLC
254 COMMERCIAL ST STE F

PORTLAND ME 04101

Attorney for: BRENDA R LAVERDIERE
JOHN R VEILLEUX - RETAINED
NORMAN HANSON & DETROY LLC
PO BOX4600
TWO CANAL PLAZA
PORTLAND ME 04112-4600

Attorney for: BRENDA R LAVERDIERE
DAVID GOLDMAN - RETAINED
NORMAN HANSON & DETROY LLC
PO BOX4600
TWO CANAL PLAZA
PORTLAND ME 04112-4600

Filing Document: COMPLAINT Minor Case Type: NUISANCE
Filing Date: 01/15/2016

Docket Events:
01/21/2016 FILING DOCUMENT - COMPLAINT FILED ON 01/15/2016

01/21/2016 Party(s): MATTHEW WALTERS
(TRUSTEE)
ATTORNEY - RETAINED ENTERED ONOl/15/2016

Plaintiff's Attorney: EDMOND BEAROR

01/21/2016 Party(s): MATTHEW WALTERS
(TRUSTEE)
MOTION - MOTION PRELIMINARY INJUNCTION FILED ON 01/15/2016
Plaintiff's Attorney: EDMOND BEAROR
WITH MEMORANDUM OF LAW, DRAFT ORDER, NOTICE OF HEARING

01/21/2016 Party(s):
MATTHEW WALTERS
(TRUSTEE)
OTHER FILING - REQUEST FOR HEARING FILED ON 01/15/2016

02/03/2016 Party(s): BRENDA R LAVERDIERE
SUMMONS/SERVICE - CIVIL SUMMONS SERVED ON 01/20/2016
IN HAND

RE-200 Page 2 of 22 Printed on: ll/23/2021