GREENFIELD — A jury on Wednesday ruled in favor of an Orange man sued by a neighbor who alleged the defendant refused to cooperate with efforts to prevent a beaver dam on his property from negatively affecting the abutting one.
Fred L. Heyes was taken to Franklin County Superior Court by Brent Sulham, who sought compensation for lost wages, emotional distress and attorney fees. However, 12 jurors deliberated for less than an hour after a trial that started Monday and finished with closing arguments on Wednesday morning, and decided Sulham had not met his burden of proof that any damage was the result of negligence or recklessness on Heyes’ part.
“I think it’s important to respect the open space in our commonwealth, and the habitat,” Heyes told the Greenfield Recorder after the verdict in his favor.
Sulham, who resides on Wheeler Avenue in Orange, filed a lawsuit against Heyes in March 2023, complaining that his own property has suffered flooding from beaver dams Heyes has declined to address. The town had denied Sulham’s request for a necessary permit to remove the beavers or the dams. Beavers are a protected species in Massachusetts, where they are deemed an important natural resource.
During the trial, Sulham testified that the flooding and damage to his property have gotten worse over the years due to the beaver dams. He said Heyes has refused to try to remedy the situation. Sulham grew up on the property and eventually moved away, only to move back and ultimately take over the mortgage from his parents in March 2021.
Sulham’s attorney, Dan Solomon, called to the stand Scott Smyers, who owns Oxbow Associates Inc., a wetlands and wildlife consulting company. Smyers testified that Sulham hired him and he met the property owner on site in October. He said the two walked the property and he took several photographs. He mentioned he focused on the property’s wetlands characteristics, including dead trees killed by recent flooding, and determined there was flooding caused by the beaver dam on Heyes’ property.
But Heyes’ attorney, Allison Bourbeau, had Smyers say on the record that Sulham paid him for his testimony and that he is not a civil engineer, hydrologist or real estate appraiser. Bourbeau also confirmed that the land in question has been a swamp since at least 1941.
Bourbeau called Heyes to the stand and he detailed his 55-year history as a forester and land manager. He explained he bought the 56 acres in question from another forester in 1993.
“My experience with beavers is you kind of have to learn to live with them,” Heyes said.
Ken Black, a semi-retired engineering professor, testified that it appears the beaver dam’s construction was completed by 2000. When questioned by Solomon during cross-examination, he said the beaver pond has existed since at least 1990, though it is now much larger than it used to be.
Orange Town Administrator Matt Fortier, who previously worked as the town’s health agent, testified about denying Sulham a permit to remove the beavers and the dam. He spoke about inspecting the site in 2022 to determine if the beaver pond was a public nuisance and explained the matter was under the Orange Board of Health’s purview because beavers can create unsafe conditions.
“I found [the dam] to be at least 200 feet away from any structures of concern,” he said on the stand, elaborating that he denied the permit application because he determined there was no emergency.
During closing arguments, Bourbeau reiterated that the Board of Health denied Sulham’s permit application.
“That denial matters,” she said.
Bourbeau also stressed that Sulham’s residence has not been flooded, his septic and well systems are intact, and he knew about the beaver pond when he took ownership of the property four years ago.
“There is no concrete evidence that the pond has changed since 2021,” she said, adding that there is also no evidence of Sulham suffering any economic damages.
But Solomon reiterated to the jurors Judge Deepika Shukla’s point that all citizens have a duty to conduct themselves in a certain way that does not negatively impact other people’s lives. He rebuked Bourbeau’s claim that Sulham filed the lawsuit out of spite. He also suggested he believes Heyes likely would have made an effort to resolve the problem if the complaint came from a family member or close friend.