John Larkin, Inc. v. Marceau

959 A.2d 551 (2008)

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Nature of the Case

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Facts

Ps own undeveloped land adjoining that of Marceau (D) who operates an apple orchard on his property. P wanted to develop that land, but D’s spraying of his orchard required that P have a 250-foot buffer between the land and residential uses. P failed to meet this requirement and thus sued D seeking injunctive and compensatory relief for D’s spraying of pesticides. D alleged that winds carried detectable levels of pesticides onto its property, thereby damaging the property. D claimed that P had failed to state a claim upon which relief could be granted, that the claims were not ripe, and that the claims were barred by Vermont's right-to-farm law. D moved for summary judgment, arguing that Larkin was making a nuisance claim but couching the complaint in terms of trespass to circumvent the right-to-farm law. The court dismissed P’s claim, and P appealed. The parties frame the primary issue as whether the deposit of airborne particulates on land may sound in trespass rather than nuisance.