NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal revision before publication in the Vermont Reports. Readers are requested to notify the Reporter of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made before this opinion goes to press.
2023 VT 1
No. 22-AP-096
Frances Nesti Supreme Court
On Appeal from v. Superior Court, Chittenden Unit, Civil Division
Vermont Agency of Transportation et al. September Term, 2022
Helen M. Toor, J. (motion to dismiss); Samuel Hoar, Jr., J. (final order)
Alexander J. LaRosa of MSK Attorneys, Burlington, for Plaintiff-Appellant.
Susanne R. Young, Attorney General, and Ryan P. Kane, Assistant Attorney General, Montpelier, for Defendant-Appellee.
PRESENT: Reiber, C.J., Eaton, Carroll, Cohen and Waples, JJ.
¶ 1. CARROLL, J. Landowner Frances Nesti appeals two civil-division orders
resolving multiple claims in favor of the Vermont Agency of Transportation (VTrans). We affirm.
¶ 2. The following facts are undisputed unless otherwise noted. In 2006, VTrans rebuilt
Route 7 in South Burlington and Shelburne. The project included constructing a new, enclosed
stormwater-drainage-management system to collect stormwater from the widened road surface.
The new system 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.
¶ 3. VTrans obtained a discharge permit from the Agency of Natural Resources to
reconstruct the drainage system. The permit application materials represented that stormwater discharges would increase relative to preconstruction flows, and VTrans does not dispute that they
have. VTrans has made no material change to the system since 2006.
¶ 4. At some point after the reconstruction, the parties dispute exactly when, Nesti
began to notice the stormwater runoff was forming a ravine where there had previously been a dry
depression. Stormwater did, however, flow over the depression from time to time before 2006.
Nesti engaged in a series of conversations with VTrans and Department of Environmental Quality
(DEQ) personnel regarding the issue beginning in 2009 or 2010. In January 2013, a VTrans
employee sent an email to Nesti representing that “[VTrans’] State legal section . . . believe[s] the
State is in the clear,” that “ ‘downhill’ property owners have the duty to accept the natural flow of
water from ‘uphill’ properties,” and where the State does not acquire “special-purpose easements”
to divert water from road surfaces, “it is also possible for the State to have acquired drainage
easements by open, notorious and continuous use which has lasted [fifteen] or more years.”
¶ 5. Nesti filed suit on December 31, 2018, seeking damages and injunctive relief. She
initially pleaded takings, trespass, and private-nuisance claims, and later added claims of ejectment
and removal of lateral support.
¶ 6. VTrans moved to dismiss all claims on the basis that each was barred by the six-
year statute of limitations for civil actions, 12 V.S.A. § 511, and the doctrine of sovereign
immunity. VTrans also argued that the ejectment and lateral support causes of action failed to
state a claim. Nesti countered that the fifteen-year statute of limitations for actions for recovery
of land, 12 V.S.A. § 501, applied to each claim rather than § 511, and the continuing-tort doctrine
caused her trespass and nuisance claims to continually accrue with each new runoff event, even if
the claims were subject to § 511.
¶ 7. The civil division dismissed Nesti’s takings claim, concluding that the applicable
statute of limitations was § 511, not § 501. It concluded that § 511 also applied to Nesti’s trespass
and nuisance claims. The court found that Nesti’s causes of action accrued before December 31,
2 2012, which was the cutoff date for her December 31, 2018, complaint. However, the court
permitted Nesti’s trespass and nuisance claims to proceed to summary judgment on the question
of whether they were continuing torts, and denied the State’s motion to dismiss them under the
doctrine of sovereign immunity. The court dismissed Nesti’s ejectment and lateral support causes
of action for failing to state a claim, and Nesti does not appeal those determinations.
¶ 8. Following discovery, VTrans moved for summary judgment on the remaining
claims. The civil division concluded that sovereign immunity failed as a defense to Nesti’s claims
because VTrans could not prove its decisionmaking regarding the stormwater system fit within the
discretionary function exception under the Vermont Tort Claims Act, 12 V.S.A. § 5601(e)(1). The
court again analyzed Nesti’s argument that her takings and tort claims were not time-barred and
again concluded that § 511 applied. It also found that Nesti’s communications with VTrans and
DEQ personnel did not support a conclusion that VTrans was equitably estopped from raising a
statute-of-limitations defense. The court lastly determined that the continuing-tort doctrine did not
save Nesti’s trespass and nuisance claims because it was unlikely this Court would adopt the
doctrine, that if it did adopt the doctrine it would not do so here, and the lack of any tortious
conduct within the limitations period would take the case out of the doctrine’s operation in any
event. The court entered judgment for VTrans on all claims.
¶ 9. On appeal Nesti makes essentially four arguments: (1) that her takings 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) § 501 also applies to her trespass and
nuisance claims; and (4) if § 501 does not apply to the tort claims, they are not time-barred under
the continuing-tort doctrine. Though the civil division revisited the question of which statute of
limitations to apply to Nesti’s takings and tort claims in its summary-judgment decision, we will
3 apply our standard of review for grants of motions to dismiss to (1), (2), and (3), and our standard
of review for grants of summary judgment to (4).
¶ 10. “A motion for failure to state a claim may not be granted unless it is beyond doubt
that there exist no facts or circumstances that would entitle the plaintiff to relief.” Kaplan v.
Morgan Stanley & Co., 2009 VT 78, ¶ 7, 186 Vt. 605, 987 A.2d 258 (mem.) (quotation omitted).
The “Court assumes that all well pleaded factual allegations in the complaint are true, as well as
all reasonable inferences that may be derived from therefrom.” Id. (quotation omitted).
I. Takings Claim
¶ 11. 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 six-year statute of limitations
for civil actions under 12 V.S.A. § 511. Nesti argues, in effect, that because VTrans could obtain
a prescriptive easement or adversely possess her property 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 for such an interest.
¶ 12. “The government cannot take private property for public use ‘without just
compensation.’ ” Lorman v. City of Rutland, 2018 VT 64, ¶ 35, 207 Vt. 598, 193 A.3d 1174 (first
quoting U.S. Const. amend. V; and then citing Vt. Const. ch. I, art. 2). “[T]he purpose of the
Takings Clause is ‘to bar Government from forcing some people alone to bear public burdens
which, in all fairness and justice, should be borne by the public as a whole.’ ” Ondovchik Fam.
Ltd. P’ship v. Agency of Transp., 2010 VT 35, ¶ 19, 187 Vt. 556, 996 A.2d 1179 (quoting
Armstrong v. United States, 364 U.S. 40, 49 (1960)). “Broadly speaking, the [government] may
take property pursuant to its power of eminent domain in one of two ways: it can enter into physical
possession of property without authority of a court order; or it can institute condemnation
proceedings . . . .” United States v. Dow, 357 U.S. 17, 21 (1958). When the government does not
4 institute condemnation proceedings before taking physical possession of property, the owner must
seek just compensation in an inverse-condemnation suit. United States v. Bedford Assocs., 618
F.2d 904, 918 n.28 (2d Cir. 1980). “[L]ong-established law holds that inverse condemnation
actions may be barred by the lapse of time.” Dep’t of Forests, Parks & Recreation v. Town of
Ludlow Zoning Bd., 2004 VT 104, ¶ 6, 177 Vt. 623, 869 A.2d 603 (mem.); see United States v.
Dickinson, 331 U.S. 745, 747 (1947) (holding that takings claims are subject to six-year civil-
action statute of limitations under federal statute). In Vermont, “when there is no special statute
of limitations” governing eminent domain and inverse condemnation proceedings, “the general
[six-year] statute of limitations for civil actions” applies. Ludlow, 2004 VT 104, ¶ 6 (citing 12
V.S.A. § 511).
¶ 13. Nesti argues that Ludlow does not control this case because it held only that inverse
condemnation actions involving regulatory takings, not physical takings, are governed by § 511.
In Ludlow, this Court concluded that because Vermont had no specific limitations statute
governing eminent domain or inverse condemnation proceedings, the six-year statute for bringing
civil actions in § 511 applied. 2004 VT 104, ¶ 6. We explained that it “is the interference with
the property right that creates a right to commence inverse condemnation proceedings,” id.
(emphasis added), and that “the manner in which a taking transpires is irrelevant.” Id. ¶ 11. Nesti’s
attempt to distinguish Ludlow because it did not involve a physical taking, as Nesti alleges
happened here, misses the point. An interference with a property right for a public purpose without
the government initiating condemnation proceedings creates a right to bring an inverse
condemnation action within six years of a plaintiff’s discovery of that interference. See Univ. of
Vt. v. W.R. Grace & Co., 152 Vt. 287, 290, 565 A.2d 1354, 1357 (1989) (holding “specifically
that the discovery rule should be read into § 511”).
¶ 14. We reaffirm our holding in Ludlow that § 511 applies to physical and regulatory
takings claims, and our conclusion is buttressed by several rationales laid out by the Supreme Court
5 of New Jersey in Klumpp v. Borough of Avalon, 997 A.2d 967 (N.J. 2010). In 1962, a severe
Atlantic nor’easter devastated much of the New Jersey shoreline, including the Klumpps’
beachfront home in the Borough of Avalon. In response, the state legislature passed an act
authorizing shoreline municipalities to “repair, restore, replace or construct such protective barriers
that were necessary to the health, safety and welfare of the municipality.” Id. at 971 (quotation
omitted). The act authorized municipalities to enter “such property to take control and possession
thereof . . . without first paying any compensation therefor.” Id. (quotation omitted). Following
the adoption of local ordinances incorporating the act that same year, the Borough erected fencing
around a portion of the Klumpps’ property, constructed a public footpath across it, and built a
protective sand dune over the property between the homesite and the ocean to keep future storm
surges from penetrating inland. The municipality never compensated the Klumpps for any of these
intrusions. Following years of back-and-forth, during which the municipality denied that its
actions amounted to a taking, and lower courts concluded that the statute of limitations had run on
a takings claim, the New Jersey Supreme Court granted certiorari.
¶ 15. The question on appeal was whether in the absence of express statutory mandate,
New Jersey’s six-year statute of limitations for trespass and injuries to real property or thirty-year
statute of limitations for adverse possession applied to the Klumpps’ claim. The supreme court
held that the six-year statute applied. It reasoned that its decision was bolstered by the fact that
the federal government also enforces a six-year statute of limitations for inverse condemnation
claims. Id. (citing Dickinson, 331 U.S. at 747). It noted that the purpose of appropriating private
property for public use “would be undermined if a long period of uncertainty were allowed in
respect of property ownership.” Id. at 978; see also State v. Atl. Richfield Co., 2016 VT 61, ¶ 26,
202 Vt. 212, 148 A.3d 559 (“The time limits reflected in statutes of limitation represent a balance,
affording the opportunity to plaintiffs to develop and present a claim while protecting the
6 legitimate interests of defendants in timely assertion of that claim.” (quotation omitted)). The
court went on to explain that:
In circumstances that involve the physical occupation of property by the government, the stark act of the governmental entry and seizure of the property requires the landowner to submit to the physical occupation of his land, and thus provides reasonable assurance that the landowner will have adequate notice and opportunity within a six-year period to institute an inverse condemnation action for just compensation. Moreover, the limited time frame for pursuing a compensation claim advances the public interest in providing fair compensation for the government’s taking. The closer in time the landowner commences the action, the more precise the valuation, particularly when improvements by the government may be forthcoming and would alter the condition of the property at the time of the taking.
Klumpp, 997 A.2d at 978 (quotation omitted).1 We find these rationales persuasive and reaffirm
our holding in Ludlow that § 511 applies to both physical and regulatory inverse condemnation
claims.
¶ 16. Nesti next cites several cases for the proposition that limiting takings claims to six
years is equivalent to giving the government “the power to adversely possess private property in
six years rather than the fifteen years [under adverse possession statutes of limitation] applicable
to ordinary citizens.” Benninghoff v. Tilton, Nos. 284637, 284736, 2009 WL 3789981, at *20
(Mich. Ct. App. Nov. 12, 2009) (per curiam) (quotation omitted); see also City of Sioux Falls v.
Miller, 492 N.W.2d 116, 120 (S.D. 1992); Difronzo v. Vill. of Port Sanilac, 419 N.W.2d 756, 759
(Mich. Ct. App. 1988). We disagree with this proposition.
¶ 17. We have noted that “it is generally recognized that public entities, including
municipalities, may acquire land by adverse possession.” In re .88 Acres of Prop., 165 Vt. 17, 20,
1 While the supreme court concluded the statute of limitations had long since run on the Klumpps’ claim, it ultimately held that the balance of the equities favored the extraordinary result of requiring the Borough to compensate the Klumpps due to the Borough’s decades-long misrepresentations about the subject property. Id. at 979-81.
7 676 A.2d 778, 780 (1996) (first citing 7 R. Powell, Powell on Real Property ¶ 1015, at 91–102–03
(P. J. Rohan ed., rev. ed. 1995); and then 10 E. McQuillin, The Law of Municipal Corporations
§ 28.15, at 43 (3d ed. 1990)).2 “[A]n adverse possession claim is . . . for recognition of title and
enforcement of the rights that accompany title,” and the burden of proving adverse possession is
on the party asserting it. Roy v. Woodstock Cmty. Tr., Inc., 2013 VT 100A, ¶¶ 35, 37, 195 Vt.
427, 94 A.3d 530. Such a claim can only be brought after the statute of limitations for recovery
of land under 12 V.S.A. § 501 has run. Id. ¶ 35. Establishing a prescriptive easement requires
“essentially the same” elements as adverse possession. Schonbek v. Chase, 2010 VT 91, ¶ 8, 189
Vt. 79, 14 A.3d 948 (quotation omitted). However, adverse possession, unlike a prescriptive
easement, requires “exclusive possession” for the statutory period. Id. (emphasis added) (quoting
Restatement (Third) of Prop.: Servitudes § 2.17 cmt. a (2000)).
¶ 18. Assuming for the sake of argument that we would recognize that the State could
adversely possess private property, such a potential would stand in stark contrast with its eminent
domain power in terms of the legal requirements and public-policy rationales. Under an adverse
possession cause of action, the State would have to prove that its “use of the land was open,
notorious, hostile and continuous throughout the statutory period of fifteen years.” First
Congregational Church of Enosburg v. Manley, 2008 VT 9, ¶ 13, 183 Vt. 574, 946 A.2d 830
(mem.) (quotation omitted). Thus, the State would not need to demonstrate either that it tendered
just compensation to the affected landowner or that it took the property for public use, two essential
elements required to exercise its eminent domain power. See Griswold v. Town Sch. Dist. of
Town of Weathersfield, 117 Vt. 224, 226, 88 A.2d 829, 830-31 (1952).
¶ 19. Furthermore, adverse possession arises from a policy choice to keep lands in active
use. See Canjar v. Cole, 770 N.W.2d 449, 454 (Mich. Ct. App. 2009) (per curiam) (“The
2 In contrast, lands appropriated for public use by the State may not be adversely possessed. See Benson v. Hodgdon, 2010 VT 11, ¶ 16, 187 Vt. 607, 992 A.2d 1053 (mem.). 8 underlying philosophy of a claim for adverse possession is to encourage land use, as it favors the
productive use of land over its disuse.”). A taking, on the other hand, arises from a policy that in
some instances a landowner must bear, with just compensation, government appropriation of his
or her land for public use. See Ondovchik, 2010 VT 35, ¶ 19. The respective statutes of limitations
reflect these policy choices: fifteen years under § 501 reflects a strong policy favoring private
property ownership but nevertheless holding landowners accountable to keep lands in active use,
while six years under § 511 represents a policy choice disfavoring long periods of uncertainty with
respect to private lands appropriated for public use.
¶ 20. It simply does not follow that because the State could conceivably take a
prescriptive easement in Nesti’s property, the limitations period for a takings claim must be
coterminous with that possibility—a possibility we have never expressly recognized. Moreover,
a prescriptive-easement claim might not ripen for years or decades following the act that
constitutes the taking itself. In sum, 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.
II. Constitutional Argument
¶ 21. Nesti next argues that barring her takings claim under § 511 violates the federal and
Vermont Constitutions. She advances no state-specific constitutional argument on this issue;
therefore, we will focus our inquiry on the Fifth Amendment “[b]ecause the federal and Vermont
Constitutions use virtually the same test for takings review.” Ondovchik, 2010 VT 35, ¶ 14
(quotation omitted).
¶ 22. As an initial matter, neither party points out that the civil division did not actually
address this argument in either its summary-judgment order or on the State’s motion to dismiss.
For Nesti, not assigning error to the civil division’s failure to address her constitutional arguments
results in waiver in this Court. See Lamell Lumber Corp. v. Newstress Int’l, Inc., 2007 VT 83,
9 ¶ 11, 182 Vt. 282, 938 A.2d 1215 (holding that where litigant raised question of law on appeal but
did not assert trial court abused its discretion ruling on question, “any argument” regarding
question “was waived on appeal”); see also 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.
III. Trespass and Nuisance Claims
¶ 23. Nesti next argues that her tort claims are also subject to 12 V.S.A. § 501, and not
12 V.S.A. § 511. She contends that our case law supports her position, and that because trespass
is the “inverse” of adverse possession, it is subject to § 501. In the alternative, she requests that
this Court apply the continuing-tort doctrine to her claims.
A. Trespass
¶ 24. “Trespass involves the unprivileged entry on to the land in possession of another.”
Wild v. Brooks, 2004 VT 74, ¶ 17, 177 Vt. 171, 862 A.2d 225. “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.” Canton v. Graniteville Fire Dist. No. 4, 171 Vt.
551, 552, 762 A.2d 808, 810 (2000) (mem.) (citation omitted). 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).
¶ 25. Though Nesti does not cite Jadallah, she does not dispute the civil division’s correct
citation to Wheeler to bar her trespass claim under § 511. Instead, she points us to several other
cases she maintains hold otherwise. They do not and we address each in turn.
10 ¶ 26. Nesti contends that Beecher v. Parmele, 9 Vt. 352 (1837), stands for the proposition
that “an owner of land may expel an intruder through the claims of trespass and ejectment when
said intruder has not possessed the claimant’s land for [fifteen] years.” Beecher does not stand for
that. Instead, the Court held that mutual acquiescence to a line running through a parcel held in
severalty for the limitations period of fifteen years establishes the line as a property boundary as a
matter of law. Id. at 355-56. Accordingly, if, following fifteen years of mutual acquiescence, the
owner of one side of the parcel crosses the boundary line and “enters” the other side, the owner
suffering that entry can sue for trespass, provided the suit commences within six years of when the
cause of action accrues. Id. at 356-57. Beecher contains nothing that suggests a trespass action is
subject to a fifteen-year statute of limitations.
¶ 27. Nesti argues that this Court also held that trespass actions are subject to the fifteen-
year statute of limitations in Hughes v. Graves, 39 Vt. 359 (1867). But Hughes instead resolved a
question of ownership by adverse possession. In 1861, Hughes acquired a parcel in Fair Haven,
Vermont from a man named Quenton. Sometime between 1806 and 1847, Quenton enclosed a
strip of land with a fence, which became the dooryard to the Quenton family home. The land,
however, did not belong to Quenton, it belonged to the adjoining property. In 1847, a predecessor-
in-interest of defendant Graves sawed the fence in two. A few months later, however, the
Quentons rebuilt the fence and continued to occupy the dooryard until 1861 when they conveyed
the property to plaintiff Hughes. The Quenton deed did not describe the disputed parcel. In 1862,
Graves purchased the adjoining lot, acquiring a deed that did describe the parcel as belonging to
him, and constructed a store that occupied Hughes’s dooryard and came within eight inches of the
Hughes’s house. Hughes sued for trespass and sought damages. The Court held that the Quentons
had acquired the disputed parcel by adverse possession, noted that Graves’s deed described
nothing “except what his grantors lost and Quenton gained,” and affirmed the judgment against
Graves for ten dollars. Id. at 361, 364. We did not hold that the statute of limitations for adverse
11 possession applied to trespass claims. We note, however, that Hughes filed his complaint in 1866,
within six years following the construction of the store in 1862.
¶ 28. Nesti lastly argues that Dernier v. Rutland Railway Light & Power Co., 94 Vt. 187,
110 A. 4 (1920), states that a litigant has fifteen years to bring a trespass claim. It does not. In
1902, Rutland Railway, Light and Power Company dammed the Castleton River, which caused it
to overflow onto Dernier’s adjoining property. Dernier sued for trespass and the railway defended,
in part, by arguing that it had acquired a prescriptive easement in Dernier’s land, and the cause of
action was therefore barred by the fifteen-year statute of limitations. The case went to trial and
the jury found for the railway. On appeal, we reversed, holding, in part, that the jury instructions
misstated the law as to whether the railway had acquired an easement. Id. at 192, 110 A. at 6-7.
The jury had been instructed that if it found that the railway had caused damage to Dernier’s
property, regardless of the extent of the damage during the prescriptive period, the railway took an
easement by prescription. However, we noted that the evidence showed that the overflow covered
only a small portion of Dernier’s property in 1904, and gradually increased in coverage up to the
time of the suit. Id. Accordingly, the Court explained, the railway took an easement, if any, to
only a small part of Denier’s land. Id. Our holding was that the court erred by instructing the jury
that, in effect, if it was to find for the railway in any respect, Dernier could not recover for damages
even under the six-year year statute of limitations for trespass. Id. at 193-94, 110 A. at 7.
¶ 29. Contrary to Nesti’s reasoning, trespass is not the “inverse” of adverse possession.
She argues that she should have fifteen years to eject the adverse possessor and that by “trimming”
nine years off § 501, this Court would be overturning two centuries of Vermont case law. 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. Nesti, in effect, is arguing that a trespass claim always accrues on the
same date that § 501 begins to run. While true here, this is not always the case. Nesti herself cites
12 cases where § 501, or the predecessor to § 501, begins to run before the accrual date for the trespass
claim. See, e.g., Beecher, 9 Vt. at 353, 356-57 (trespass action brought in 1837; statute of
limitations for adverse possession began running thirty years earlier); Hughes, 39 Vt. 359 (statute
of limitations for adverse possession began running between 1806 and 1847 and trespass claim
accrued in summer of 1862). And even where § 501 and § 511 do begin running on the same date,
as here, 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. The civil division
concluded Nesti was on notice that her claims accrued before December 31, 2012 (a conclusion
Nesti does not challenge on appeal), and she failed to file her complaint within the six years the
Legislature provided for such actions.
B. Nuisance
¶ 30. Nesti argues that she also has fifteen years to bring a private nuisance claim against
VTrans. She contends that because a nuisance claim “seeks the recovery” of the property owner’s
use and enjoyment of property, one of the sticks in the bundle of fee-simple ownership, it follows
that nuisance is also subject to the fifteen-year period to recover lands under § 501. She argues
that Alpstetten Ass’n v. Kelly, 137 Vt. 508, 408 A.2d 644 (1979), did not hold that private nuisance
claims are subject to the six-year period under § 511, and that a United States Supreme Court case,
International Paper Co. v. Ouellette, 479 U.S. 481 (1987), demonstrates that in Vermont nuisance
is not subject to § 511. These arguments are without merit.
¶ 31. Private nuisance is “a substantial and unreasonable interference with a person’s
interest in the use and enjoyment of land.” Jones v. Hart, 2021 VT 61, ¶ 26, 215 Vt. __, 261 A.3d
1126. Interference with the flow of surface water can result in a nuisance. Canton, 171 Vt. at 552,
762 A.2d at 810; Lorman, 2018 VT 64, ¶ 25. 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
13 (“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.”).
¶ 32. Nesti argues that Alpstetten does not control the outcome here because the Court
did not analyze whether the fifteen-year period applied to nuisance claims involving “the recovery
of lands.” However, this argument assumes that § 501 is inherently relevant to a private nuisance
claim, which it is not. We characterized Alpstetten as requiring “the six-year rather than the three-
year statute of limitations where the defendant counterclaimed that he was inconvenienced,
harassed and embarrassed as a result of the plaintiff’s decision to shut off the water supply to the
defendant’s vacation home complex.” Fitzgerald v. Congleton, 155 Vt. 283, 291, 583 A.2d 595,
600 (1990). We explained that the holding in Alpstetten was “that § 511 applied since the alleged
harm centered on an interference with the use and enjoyment of [the] defendant’s property rather
than a bodily injury [requiring application of the three-year statute of limitations].” Id. No matter
how Nesti chooses to style her nuisance cause of action, whether as a “recovery of the use and
enjoyment of property” as she does on appeal or as “an unreasonable interference with [her] use
and enjoyment of her home” as she does in her pleadings, Alpstetten is clear that § 511 applies
because nuisance, fundamentally, is an “interference with a person’s interest in and enjoyment of
land.” Jones, 2021 VT 61, ¶ 26.
¶ 33. Nesti also contends that applying § 501 is consistent with International Paper Co.
v. Ouellette. But the question in Ouellette was whether the Clean Water Act displaced a state
common-law nuisance cause of action, not which statute of limitations to apply to such a claim.
479 U.S. at 483. In Ouellette, Vermont plaintiffs filed suit in state court alleging that a pulp mill’s
discharge into Lake Champlain tortiously interfered with the use and enjoyment of their beachfront
properties. The mill, operated by International Paper Company, was located on the New York side
of the lake, and discharged effluent into the lake through a pipe that ended “a short distance before
the state boundary line that divides the lake.” Id. at 484. The opinion does not state when the
14 discharge began. However, Nesti says the discharge began “much more than six years” before
plaintiffs filed suit.
¶ 34. There are two fatal flaws in Nesti’s argument: (1) the issue of which limitations
statute to apply is never addressed in the opinion, and (2) even assuming for the sake of argument
that Nesti is correct, she fails to account for the fact that the accrual date, on which the limitations
statute begins to run, is a factual question distinct from when the discharge began. Jadallah, 2018
VT 34, ¶ 17 (“A cause of action accrues upon the discovery of facts constituting the basis of the
cause of action or the existence of facts sufficient to put a person of ordinary intelligence and
prudence on inquiry which, if pursued, would lead to the discovery.” (quotation omitted)).
Ouellette does not in any way support applying § 501 to Nesti’s nuisance claim.
C. Continuing-Tort Doctrine
¶ 35. 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
spends considerable time explaining why the alleged torts here are “continuing” and not
“permanent,” the former of which, she argues, are recoverable under the doctrine. 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 civil division addressed this argument in some detail before
ultimately concluding that it was unlikely that this Court would adopt the doctrine on these facts,
and that even if it did, VTrans committed no tortious act within the limitations period, a required
element under the doctrine we identified in Gettis v. Green Mountain Economic Development
Corp., 2005 VT 117, 179 Vt. 117, 892 A.2d 162. We agree that VTrans has committed no tortious
act within the limitations period, and we therefore need not decide whether the 2006 reconstruction
was a permanent act, or whether the stormwater events Nesti alleges the reconstruction made
possible are themselves continuing acts.
15 ¶ 36. We review this argument using the same standard as the civil division. Lorman,
2018 VT 64, ¶ 8. “Summary judgment is appropriate ‘if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.’ ” Id.
(quoting V.R.C.P. 56(a)). “When a defendant moves for summary judgment, it satisfies its legal
burden by presenting at least one legally sufficient defense that would bar [the] plaintiff’s claim.”
Id. (quotation and brackets omitted).
¶ 37. “The continuing tort doctrine allows a plaintiff to support his or her cause of action
with events that occurred outside of the limitations period by delaying the accrual of a claim until
the date of the last injury or the date the tortious acts cease.” Gettis, 2005 VT 117, ¶ 23 (quotation
omitted). The doctrine requires “at least two elements: a continuing wrong, and some action
contributing to the wrong that occurred within the limitations period.” Id. ¶ 25. A tortious act,
which cannot be “simply the continuing ill effects of prior tortious acts,” must “fall within the
limitation period.” Id. ¶ 28. This Court has never applied the doctrine, but we have “indicated a
variation of it may exist for discrimination cases,” following the federal courts. Id. ¶ 24 (citing
Lee v. Univ. of Vt., 173 Vt. 626, 626-27, 800 A.2d 444, 445-46 (2002) (mem.)).
¶ 38. 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.
FOR THE COURT:
Associate Justice