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Law School Case Brief

John Larkin, Inc. v. Marceau - 2008 VT 61, 184 Vt. 207, 959 A.2d 551


When particles enter an ambient environment without any demonstrated impact on the land, the Supreme Court of Vermont fails to see how a trespass has occurred. In such a case, there is no ouster from the land, and no interference with the landowner's right to exclusive possession of the land. Hence, under such circumstances, the landowner has no action in trespass. In a traditional trespass action, the right to exclusive possession of property may not depend on an analysis of the impact on the use of the land, but a court cannot presume an intrusion on that right in situations where the plaintiff fails to show that an intangible invasion of airborne particulates had a demonstrated physical impact.


Plaintiffs John Larkin Inc. and Larkin Family Partnership (Larkin) owned undeveloped land adjoining that of defendant J. Edward Marceau, Jr., who operated an apple orchard on his property. Larkin submitted to the Environmental Commission an application for a residential development with minimum setbacks along the Marceau boundary. Marceau asked the commission to impose a buffer zone that would restrict residential use of the Larkin property adjoining his land. The commission denied the application for failing to satisfy two Act 250 criteria. Larkin filed suit against Marceau for trespass based on Marceau's spraying of pesticides in his orchard. Larkin alleged that winds carried detectable levels of pesticides onto its property, thereby causing property damage. Marceau moved for summary judgment and argued that Larkin in fact made a nuisance claim but couched the complaint in terms of trespass to circumvent the right-to-farm law. The superior court denied the summary judgment. On appeal, Larkin argued that: (1) the superior court erred by recharacterizing its trespass action as a nuisance action subject to the right-to-farm law and thus effectively dismissing its trespass claim; and (2) the right-to-farm law did not insulate farmers from liability for trespass, regardless of the nature of the trespass.


Did the deposit of airborne particles on plaintiffs' land deprive them of exclusive possession of their property?




The Supreme Court of Vermont affirmed the decision of the trial court and held that there was no deprivation of the right of possession of the plaintiffs. The court recognized the modern theory of trespass. Under this modern theory, invasions of intangible matter are actionable in trespass only if they cause substantial damage to the plaintiff's property, sufficient to be considered an infringement on the plaintiff's right to exclusive possession of the property. In connection with that theory, the court ruled that Larkin had failed to make any showing that the presumed dispersion of detectable levels of pesticides from the orchard deprived them of exclusive possession of their property or had any other impact on the property. Larkin made only a bald assertion that it was ousted from its property because of the presumed detectable level of pesticides landing on the property, and because Marceau requested, and the Agency of Agriculture recommended, that there be a buffer zone to avoid any potential conflict over use of the adjoining properties. Larkin neither conducted depositions nor offered any expert testimony. Nor did Larkin proffer evidence indicating the extent of the dispersion of pesticides on its property or any potential safety or health concerns related to the pesticide use. Nor did the commission reject Larkin's project or restrict the use of Larkin's property based on any required buffer zone.

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