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Peterson v. County Land Co. Inc.

Superior Court of Maine, Aroostook

September 7, 2018

DOROTHY W. PETERSON[1], et al Plaintiffs
COUNTY LAND CO. INC[2] Defendant



         Pending 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.

         The 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.

         The 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 follows:

The undersigned parties agree to settle any and all claims now the subject of this litigation or that could have been as follows:
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, 2012.
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 silt basins.

         Attached to the Settlement Agreement as Exh A is an aerial photograph of the subject property.

         The parties placed the following notations upon the exhibit:

On the left side of the Exhibit, the parties noted, "Approximate location of New Silt Basins"

         Two 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".

         Each 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, ...

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