When is a stone wall not a stone wall, what do you do about it, and who pays?

The town of Epsom is grappling with this issue after long-time residents Edward and Glenna Nutter alleged that DBU, a construction firm hired by the town to repair roads after last summer’s tornado, damaged the historic stone wall on their property. While Road Agent Gordon Ellis and his crew repaired the wall, the Nutters are “going to the wall” for it, insisting that only the original stones will maintain the integrity and “iconic nature” of their wall.

But selectmen contend that Nutter does not have sufficient proof that the town is at fault, and they also say it is illegal for the town to pay to repair private property. At a recent selectmen’s meeting, the Nutters said they will pursue legal action against the town.

Wall woes
According to Ed Nutter, 600 feet of the wall “disappeared” when DBU, a local firm owned by Adam Towne, repaved Center Hill Road after the tornado. The road repair happened a year ago this past July. At the time, he brought the issue to Ellis and Towne’s foreman, saying, “We want our wall back.”

After Nutter complained to the town, Ellis and his crew did put new rocks on top of investigationwhat was left of the old wall. The new rocks were donated by DBU and put in by Ellis at the town’s expense. But that’s the problem, according to Nutter: they put “gravel rocks” instead of the old-fashioned stone, and you can see the difference, according to him.

“They are little round stones, horrible looking. It’s a makeshift stone wall,” Nutter insisted.

A year ago, he wrote a letter to the town saying he was unsatisfied with the new wall. The town asked for photos and documentation, which he supplied. He also met with selectmen and Ellis for a site walk Aug. 1 of this year.

Nutter’s attorney, Todd Fahey, said the original wall is a “classic, iconic” New England stone wall.

“The town was good enough to put the wall back,” he said, adding, “But it’s not the wall he lost.” Like a rolling stone Selectmen don’t think the town is at fault, and contend that a “100-year flood” could have been responsible. In a recent meeting with the Nutters and Fahey, they pointed out that the wall could have been damaged by the force of the April 2007 flood.

“I have seen a lot of stones moved in a river,” Selectman Keith Cota, a civil engineer, pointed out. “A lot of water can move good-sized stones.”

When Nutter and Fahey said they had a good idea who had taken the stones, Chairman Bob Blodgett countered, “If you did not see them do it, how can you tell me who did it?”

“I think I know where they are, but I don’t have proof,” Nutter said.

He later said that he had people willing to “come forward” as to the location of the stones.

Adam Towne of DBU donated the replacement stones, Cota said, and maintains that his staff did not take the original stones.

Nutter and Fahey shared photos from the storm event, allegedly showing that the wall was still there in April 2007. Nutter also said neighbors walked along the wall while they were out inspecting storm damage. But selectmen argued that the smaller or “top” stones could still have been moved, with Cota saying, “The ‘act of God’ in 2007 did quite a bit of damage. It removed stumps -- it could have also removed stones.”

Selectmen also contend that it’s not necessarily the town’s responsibility to restore private property.

”Is there justification for spending public funds for something someone percieves as damaged?” Cota asked. And Selectman Joanne Randall said, “Until Mr. Nutter shows us absolute proof that the town is responsible, it’s not our responsibility to replace the wall.”

The state constitution prohibits towns from spending public funds for private property unless there is proof the town was negligent in some way, Randall said.

Nutter offered a “compromise” to the town, saying the town could repair the wall with stones from other parts of his property, at town expense and with Ellis supervisiing.

The selectmen agreed to send a letter to Nutter detailing their position on the matter, and to listen to the compromise “if it is agreeable to the board,” Cota said.

“We have a ‘standard of care’ as town officials,” Cota said. “Did we do our due diligence? I think we did.”