DOROTHY W. PETERSON, et al Plaintiffs
COUNTY LAND CO. INC Defendant
ALLEN HUNTER JUSTICE.
before the court is the Plaintiffs complaint contending that
the Defendants have failed to comply with a settlement
agreement reached in earlier litigation (See Peterson v.
County Land Co. Docket No, RE-09-013.) involving the
same land that is the subject of this litigation. In Count I,
the Plaintiff seeks a declaratory judgment declaring the
various rights of the parties pursuant to that settlement
agreement. In Count II, the Plaintiff contends that the
Defendants are in breach of the settlement agreement and that
he is entitled to an award of damages for that breach and/or
to a judgment of specific performance.
particular circumstance that has given rise to this
litigation is that the Plaintiff and Defendants are adjoining
landowners. The Defendants' land is higher than the
Plaintiffs land and from time to time, water runs off from
the Defendants' land onto the Plaintiffs land causing,
among other things, erosion and the deposit of silt upon the
Plaintiffs land. In the initial litigation, the Plaintiff
contended that the Defendants' use of their land caused
the run off and resulting deleterious effect upon Plaintiffs
land significantly in excess of what was occurring based upon
the lay of the land in its natural state.
parties settled that litigation on September 14, 2011 by
entering into the Settlement Agreement that is attached to
the complaint as Exhibit Al. The Defendants acknowledge that
the Settlement Agreement is a "valid enforceable
agreement." The substance of that agreement provides as
The undersigned parties agree to settle any and all claims
now the subject of this litigation or that could have been as
1. County Land Co. Inc. shall pay to the Plaintiffs the sum
of $40, 000 forthwith.
2. County Land Co. Inc.'s insurer shall pay to the
Plaintiffs the additional sum of $50, 000 forthwith. Upon
payment of this total sum of $90, 000 the Plaintiffs shall
deliver to the Defendant a docket entry dismissing this
litigation with prejudice. Subsequent to the termination of
litigation, the Parties shall remain obligated to each other
as provided for in Paragraphs 3 and 4.
3. Under the direction and supervision of the Natural
Resources Conservation Service (NRCS), County Land Co. Inc
will construct a diversion ditch (emphasis supplied)
along the southerly bound of the Plaintiffs property
generally as indicated on Exh. A. attached hereto. County
Land Co. Inc shall also construct three new silt
basins (emphasis supplied) as indicated on Exh. A.
These water control structures will meet at least minimal
NRCS standards: (emphasis supplied) Additionally, County
Land Co. Inc. will execute and deliver to the Plaintiffs a
release deed without covenant that will grant to the
Plaintiffs an Easement Appurtenant (an easement that will run
with the land) for the purpose of periodically maintaining
the diversion ditch and silt basins. By accepting this deed,
the Plaintiffs agree for themselves and for their heirs and
assigns that they will in fact maintain the diversion ditch
and silt basins at their own expense. Performance of this
part of the settlement agreement shall be performed as soon
as reasonably possible but in no event later than April 1,
4. The Plaintiffs shall hold harmless and indemnify the
Defendant for any claims or causes of action brought by any
person against the Defendant and that arise out of the
Plaintiffs' actions in maintaining the diversion ditch or
to the Settlement Agreement as Exh A is an aerial photograph
of the subject property.
parties placed the following notations upon the exhibit:
On the left side of the Exhibit, the parties noted,
"Approximate location of New Silt Basins"
black lines lead from this notation to the approximate sites
for the creation of two new silt basins. Towards the middle
of the exhibit, the parties noted, "NRCS will determine
flow direction and ditch will go to applicable basin. There
are dotted lines running from this notation towards one of
the two new silt basins on the left side of the exhibit and
towards a third basin designated as "New Basin". To
the right of this notation appears another notation of
"New Ditch". This is accompanied by a line drawn
upon the exhibit to illustrate the location of that "new
ditch". To the right of that notation there appears
another notation of "Existing Basin".
party called an expert witness in support of their respective
positions. The Plaintiff called Brian Stewart, a professional
engineer with training and experience in surface water
runoff. The Defendants called David Rocque, the Maine State
Soil Scientist and who is also a licensed site evaluator and
licensed professional forester. The court also received
testimony from the Plaintiff David Peterson and from the
Defendant Darrell McCrurn. In addition, ...