Villeneuve v. Powers

 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, Vermont Supreme
 Court, 111 State Street, Montpelier, Vermont 05602 of any errors in order
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                                 No. 91-389


 Richard Villeneuve                           Supreme Court
 and Ardelle Villeneuve
                                              On Appeal from
      v.                                      Chittenden Superior Court

 Nathan Powers                                December Term, 1991
 and Marjory Powers



 Matthew I. Katz, J.

 David C. Drew and Veronica Ciambra, Lyndonville, for plaintiffs-appellants

 L. Randolph Amis of Wiener & Amis, P.C., Burlington, for defendants-
   appellees



 PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.



      GIBSON, J.   Plaintiffs brought an action seeking damages for
 defendants' failure to remove a beaver dam on their adjoining property in
 Underhill.  The trial court dismissed the action.  We reverse and remand.
      Plaintiffs' property is located upstream from defendants' property.  A
 stream running through both properties had been blocked by a beaver dam
 located on defendants' property, and plaintiffs claimed that the dam caused
 the stream level to rise and flood, causing damage to their property.
 Plaintiffs requested that defendants remove the dam or allow plaintiffs to
 do so, but the requests were refused.  Plaintiffs thereafter brought the
 present action, based on theories of negligence, nuisance, trespass, and
 interference with riparian rights.  Defendants argued at trial that they
 were not required to remove the dam under any legal theory, and denied that
 any damages had occurred.  Defendants also argued that plaintiffs were
 required by 10 V.S.A. App. { 43(e) (FN1) to obtain a permit from the Fish and
 Wildlife Commissioner to remove the dam and did not do so, thereby barring
 the present action.
      The trial court granted defendants' motion for summary judgment,
 concluding that { 43(e) superseded all common-law theories of recovery.
 The court reasoned that both defendants and plaintiffs would need a permit
 to remove the dam -- defendants, since they would not have been acting to
 protect their own property, and plaintiffs, since they were not an "owner of
 property" within the meaning of the statute.  The court concluded, however,
 that in the present action the statute relieved defendants of any common-law
 duty to plaintiffs to act with respect to the dam:
             It was not necessary for the defendants to obtain the
           permit to remove the dam, since the plaintiffs could
           have obtained a permit and removed it themselves.  Nor
           can it be found that defendants had a duty to act, for
           one can have no duty to act when one needs a permit to
           perform the act.  Thus, defendants were not negligent.
           Defendants similarly cannot be found to have acted
           recklessly, under [10 V.S.A. App. { 43(e)], as
           plaintiffs assumed the risk of the flooding by not
           taking the permit action themselves.

 The present appeal followed.
      The trial court concluded in effect that plaintiffs' common-law rights
 were abrogated by { 43(e) and that plaintiffs were left to their statutory
 remedies, which they should have pursued.  But there is nothing in the text
 of { 43(e) that denotes or implies abrogation of common-law actions, and we
 have no reason to assume that it overrode preexisting common-law rights.
 We stated in Langle v. Kurkul, 146 Vt. 513, 516, 510 A.2d 1301, 1303 (1986),
 "The common law is changed by statute only if the statute overturns the
 common law in clear and unambiguous language, or if the statute is clearly
 inconsistent with the common law, or the statute attempts to cover the
 entire subject matter."  Also, in Record v. State Highway Board, 121 Vt.
 230, 236-37, 154 A.2d 475, 480 (1959), we held that, in construing a
 statute, "we are not to presume that the legislature intended to work any
 change in the common law beyond what the statute itself declares in either
 express terms, or by unmistakable implication."
      In the present case, none of the Langle v. Kurkul factors support an
 inference that the Legislature intended to override the common law.  As for
 the language of the statute, its explicit purpose is to protect beaver
 habitat from destruction without a permit from the commissioner, with an
 exception, in the case of private property, for acts by an "owner of
 property" suffering damage from a beaver dam.  The statute does not charge
 the commissioner with deciding the tort and riparian rights issues that
 could arise in such matters, and no procedures are provided for their
 determination.  Moreover, the statute does not provide for remedies or allow
 entry of judgments appropriate to common-law actions.  The statute limits
 the role of the commissioner to the permit process, and the standards for
 granting a permit may well be different from those to be applied by a court
 in a common-law action, where issues and interests beyond those involved in
 a { 43(e) permit application may be raised.
      Nor does the statute "attempt[] to cover the entire subject matter."
 Langle, 146 Vt. at 516, 510 A.2d  at 1303.  The court correctly stated that
 plaintiffs were under a duty to obtain a { 43(e) permit prior to seeking to
 remove the beaver dam themselves, but it does not follow that plaintiffs
 were required to limit their remedies to those available within the statu-
 tory permit process.  The statute is prohibitory in nature, subject to an
 exception for an owner of property.  Obtaining the approval of the commis-
 sioner to waive the bar of { 43(e) would not have authorized plaintiffs as
 adjacent landowners to enter their neighbor's property without permission.
 Plaintiffs have alleged that they sought such permission and were denied.
 If the statute were the sole remedy in cases like the present one, in lieu
 of common-law theories, it appears that money damages would be unavailable
 to owners of property damaged by a beaver dam on adjoining land, since {
 43(e) does not provide for money damages.  The statute should not be read to
 effect such a significant change in the law by implication.
      Defendants argue that the trial court's conclusion as to the preemptive
 effect of { 43(e) was correct, since they read { 43(e) to require them to
 obtain a permit from the commissioner before removing the dam, absent damage
 to their property.  They rely on the court's conclusion that "one can have
 no duty to act when one needs a permit to perform the act."
      We disagree that the need for a permit precludes a duty to act.
 Rather, if a permit is required before an act may be performed, then
 obtaining the permit is simply the first step in performing the act.  We
 need not decide whether defendants would have to obtain a permit to remove
 the dam, however, because they never approached the commissioner and have
 denied that plaintiffs' property was damaged.  The questions raised by
 plaintiffs' common-law claims are whether defendants have a duty to remove
 the dam and whether they owe plaintiffs' damages for their failure to do so.
 Only if the commissioner were to deny defendants a permit would a question
 arise as to the reasonableness of their next steps.
      Even if defendants are required to proceed under { 43(e) before
 removing the dam on their property, they offer no reason why that require-
 ment absolves them of duties they might otherwise owe plaintiffs under the
 common law.  The question of who could, or should, have obtained the
 commissioner's approval for removal of the dam is separate from the issue of
 who had the primary common-law duty to address the potentially damaging
 effects of the beaver dam.  It is not uncommon for courts to sort out
 similar conflicts or apparent conflicts between common-law rights and
 statutory or regulatory requirements.  See, e.g., Murray v. Inhabitants of
 Town of Lincolnville, 462 A.2d 40, 43 (Me. 1983) (contract for sale of land
 subject to purchasers' obtaining environmental and zoning permits remained
 enforceable notwithstanding statute barring sale of land in subdivision
 prior to approval by reviewing authority).
      In sum, in the absence of statutory intent in { 43(e) to substitute an
 administrative permit process for existing common-law actions, the need for
 an administrative permit to remove a beaver dam did not by itself relieve
 defendants of whatever common-law duty they might have to plaintiffs with
 respect to the beaver dam on their property.  The court erred in dismissing
 plaintiffs' action as a matter of law.
      Since this action was decided on defendants' motion for summary
 judgment, we need not address the question of which, if any, of plaintiffs'
 common-law theories apply to the present facts.
      Reversed and remanded.



                                         FOR THE COURT:



                                         ______________________________
                                         Associate Justice





FN1.        10 V.S.A. App. { 43(e) states:
               { 43 Method of taking
               . . . .
                    (e) A person shall not interfere in any
               manner with dams, dens, or houses of beaver
               except upon special permit in writing from the
               commissioner, provided, however, that these
               provisions shall not apply to an owner of
               property, his employee, tenant, or caretaker
               protecting the same from damage by beaver, or
               to the selectmen of a town  protecting public
               highways or bridges from such damage or sub-
               mersion, with permission of the owners of
               lands affected.