## Facts

- John Larkin, Inc. and Larkin Family Partnership owned undeveloped land adjoining J. Edward Marceau, Jr.’s operating apple orchard.
- Larkin planned a high-density residential development near the orchard boundary, prompting concerns about conflicts with orchard spraying and other farm operations.
- Marceau applied pesticides on his own land as part of ordinary orchard operations.
- Larkin alleged that some airborne pesticide spray drifted across the boundary onto its property.
- There was no evidence that the alleged drift caused physical damage to Larkin’s land, structures, vegetation, or to any people or animals on the property.
- Larkin asserted nuisance and trespass theories; the nuisance claims were dismissed, leaving only trespass.
- The trial court granted summary judgment to Marceau on the trespass claim.

## Issues

1. Whether airborne pesticide drift from ordinary agricultural spraying, without proof of physical damage, constitutes an actionable trespass under Vermont law.
2. Whether allegations of intangible invasions without physical injury must be addressed, if at all, under nuisance rather than trespass.

## Decision

- The Vermont Supreme Court affirmed summary judgment for Marceau.
- The court held that, for intangible or particulate invasions such as pesticide drift, trespass requires proof of actual physical damage to property (or to persons or animals on the property).
- Because Larkin produced no evidence of physical harm attributable to the alleged drift, it failed to meet its burden to survive summary judgment.
- The court treated the dispute as the type of land-use conflict typically analyzed under nuisance principles, not trespass, although nuisance was not before the court on appeal.

## Legal Principles

- Trespass protects the interest in exclusive possession of land and, in cases involving airborne or microscopic intrusions, requires proof of actual physical damage to property (or to persons or animals thereon).
- Mere crossing of a boundary by intangible substances, without demonstrated physical injury, is not compensable trespass in Vermont.
- Claims based on interference with the use and enjoyment of land from neighboring activities generally sound in nuisance, which employs different standards than trespass.
- On summary judgment, a plaintiff must present evidence supporting each required element; absence of evidence of physical damage defeats a modern-trespass theory based on intangible invasions.

## Conclusion

The court affirmed judgment for the orchard owner, holding that pesticide drift does not support a Vermont trespass claim absent evidence of actual physical damage, and that such boundary-crossing, intangible intrusions are properly addressed (if at all) under nuisance-type theories rather than trespass.


John Larkin, Inc. v. Marceau, 184 Vt. 207, 959 A.2d 551 (Vt. 2008)