In Bean v. Sears, Roebuck & Co., 129 Vt. 278, 276 A.2d 613, 614-16 (Vt. 1971) the Supreme Court of Vermont held that diminution in value was a proper measure of damages where a leak of fuel oil, which occurred because the defendant improperly installed a furnace, polluted the only source of water for the plaintiff's farm. The plaintiff's "well was found to be polluted by the leakage of one hundred or more gallons of fuel oil." Id. at 615.
The defendant argued that the damage was merely temporary and that the appropriate measure of damage should be the cost of restoration of the property to its former condition. Id. at 616.
More specifically, the defendant argued that "the pollution of the well was repairable by use of a filtering device which it had made available to the plaintiffs for a year after the water supply became polluted." Id. The plaintiffs tried the device, but then declined to repurchase it, choosing instead to bring water to the farm by jugs. Id.
The court rejected the defendant's argument, noting that, although the taste of the water improved with the filtering device, the presence of kerosene was clearly indicated after the filter was disconnected, and "there was no obligation on the part of the plaintiffs to revert to a temporary expedient suggested by the defendant to its advantage which failed to cure the harm which the defendant had brought upon them." Id.
The court also noted that there is evidence from the state geologist that the damaging effect of the oil pollutant cannot be precisely fixed, but that it will remain for a great length of time. He pointed out that the movement of the water in itself is not sufficient to clear out the pollutants; natural purification could take a great many years. Id. at 616.