Boundary Disputes and Eminent Domain

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BOUNDARY DISPUTES AND EMINENT DOMAIN

By Rodney E. McPhee

Facey Goss & McPhee, P.C., 71 Allen Street, Rutland, VT 05701

rmcphee@fgmvt.com

802-665-2670

www.fgmvt.com

BOUNDARY DISPUTES

1. Title Insurance.

Whenever someone is presented with a potential boundary dispute the first thing that should occur before doing anything is to ascertain if there is title insurance. As boundary disputes are very time intensive, boundary disputes are very expensive both in attorneys' fees and expert fees. Many title policies are enhanced policies which may cover encroachments and boundary disputes including adverse possession. Even if an owner's title policy was not purchased, ascertain if there are any mortgages on the property and if so, whether the mortgage company required a lender's title policy. Most lender's title policies have survey exceptions meaning that boundaries are insured for purposes of the lender. The mortgage company may be willing to make a claim against the title company for the boundary dispute if the value of the property may be jeopardized.

Many boundary disputes involve encroachments. Encroachments are structures on real property which extend onto adjoining property. They are normally improvements located on adjoining land or adjoining roads or rights-of-way. An unauthorized extension of a structure erected on one property onto adjacent property, can render the title unmarketable if the encroachment is of a substantial character. 52 Am. Jur. Proof of Facts 3d, Real Estate Purchaser's Rights and Remedies where Seller is unable to Convey Marketable Title, 429.

Courts have frequently found coverage for encroachments on neighboring land. See Rackouski v. Dobson, 261 Ill. App.3d 315, 199 Ill. Dec. 875, 634 N.E.2d 1229, 1232 (1994) (holding that title insurance company was obligated to defend insureds after insureds' neighbor filed a complaint alleging that insureds' barn and fence encroached on neighbor's property because "reasonable persons would not purchase property which would require them to either remove a substantial portion of a building from the property or defend a lawsuit, or both"); First Am. Title Ins. Co. v. Dahlmann, 2006 WI 65, ¶¶ 31–42, 291 Wis.2d 156, 715 N.W.2d 609 (holding that substantial encroachment onto adjoining land was an encumbrance and covered under title insurance contract where survey and encroachment exception was deleted from policy).

The Vermont Supreme Court did rule in favor of the title company in Trinder v. Connecticut Attorneys Title Ins. Co., 189 Vt. 492, 2011 VT 46 (2011). In Trinder, the homeowners filed a declaratory judgment action to establish defendant title insurance company's obligations to defend or indemnify them regarding an encroachment of their septic system onto neighboring property. The homeowners appealed the trial court's conclusion that the terms of their title insurance contract did not require title insurer to defend or indemnify homeowners to establish a right to maintain the system. Although the Vermont Supreme Court affirmed the trial court's decision for the title company, in most cases the title insurance company will at least defend the encroachment claim depending on the facts of the case. The Trinder decision teaches us that under certain facts an enhanced title policy may provide coverage for encroachments. If the Trinders simply requested a demand from the museum to require removal of the septic system and waited to reach a settlement, then it appears that the Court would have found coverage.

2. Trespass

In the event of an encroachment or trespass, an ejectment action must be filed pursuant to 12 V.S.A, Chapter 169. It is very important that all potential parties be named in the action. If there is a mortgage on the property in dispute then the mortgage holder should be named or the prevailing party will take the property subject to the mortgage. A tenant or occupant should also be named otherwise the tenancy will not be terminated and a separate action will be required to remove them from the property.

When representing purchasers and sellers in a real estate transaction, the issue of encroachments should be addressed. There have been numerous lawsuits over whether a purchaser can assert an encroachment as a defect in the seller's title allowing the contract to be terminated. The purchase and sale contact should be drafted carefully to address this issue. Generally the right to terminate the contract is dependent on whether such encroachment exists at the time for the performance of the contract. 52 Am. Jur. Proof of Facts 3d, Real Estate Purchaser's Right's and Remedies where Seller is unable to Convey Marketable Title. A seller is entitled to remove an encroachment, if he can do so, at any time within the period during which he has the right to tender a deed to the purchaser under the contract of sale. Id. If the defect cannot be cured, title to a portion of the land fails and the purchaser can rightfully object. If the seller can obtain a valid agreement from the owner of the adjoining land upon which the building in question encroaches permitting the building to be maintained as it now exists, it seems clear that the purchaser would not be justified in refusing to accept title. Id. As a general rule, a vendor's title will also be deemed unmarketable if his property encroaches to any substantial extent onto, or over, an adjoining property. Id. If the encroachment is determined to be slight or inconsequential, the contract will be enforced. A determination of whether an encroachment is of such a character as to justify a purchaser in refusing to accept title depends on the particular facts of each case.

An action for ejectment must be filed within 15 years. 12 V.S.A. § 501. However a party may not sit by and allow another party to make improvements to the property. See Society for Propaganda of Gospel in Foreign Parts v. Town of Pawlet, 29 U.S. 480 (1830). In claiming encroachment, the plaintiff has the burden of proof to establish that it has the record title. Greenmont Lumber Corp. v. Berger, 154 Vt. 121 (1990).

A cause of action for encroachment should also include a claim for trespass because the essence of a trespass to real property is injury to the right of possession. See Pelletier v. Gosselin, 2004 Westlaw 5582089 (Vt. 2004) (unpublished decision). Any unauthorized entry upon the land of another constitutes a trespass without regard to the amount of force used even though no damage is done, since at least nominal damage is always presumed from a trespass on land. 75 Am. Jur. 2d Trespass § 32. Trespass is a direct physical interference with, or an unlawful or unauthorized physical invasion of, another's property. 75 Am. Jur. 2d, Trespass § 4. Trespass is not based on an omission to perform a duty, but rather an affirmative act or a misfeasance, such as where the invasions have occurred more than once and without a remedy to the situation, appear willful. Id.

3. The Law.

In boundary disputes, "[t]he burden is upon the plaintiff of showing that the location of this common [property] line upon the ground is where he claims it is." Neill v. Ward, 103 Vt. 117, 145, 153 A. 219, 232 (1930), overruled on other grounds by Vt. Structural Steel v. Dep't of Taxes, 153 Vt. 67, 569 A.2d 1066 (1989). The master rule in construing a deed is that "the intent of the parties governs." DeGraff v. Burnett, 2007 VT 95, ¶ 20, 182 Vt. 314, 939 A.2d 472 (quotation omitted). However, the court may not consider extrinsic evidence where no ambiguity can be found in the deed. Main St. Landing, LLC v. Lake St. Ass'n, 2006 VT 13, ¶ 7, 179 Vt. 583, 892 A.2d 931 (mem.). Ambiguity of a deed is a matter of law. Kipp v. Chips Estate, 169 Vt. 102, 107, 732 A.2d 127, 131 (1999). If the intent of the parties to the deed is ascertainable from the plain language, the deed is not ambiguous. See DeGraff, 2007 VT 95, ¶ 20, 182 Vt. 314, 939 A.2d 472 (ambiguity found where intent of parties is not discernible from language within four comers of deed (citing Main St. Landing, 2006 VT 13, ¶ 7, 179 Vt. 583, 892 A.2d 931)); Rowe v. Lavanway, 2006 VT 47, ¶ 11, 180 Vt. 505, 904 A.2d 78 (mem.) (noting the Court looks first to plain language of the deed); see also 46 Am Jur Proof of Facts 2d, Intent of Parties to Ambiguous Deed, 695. The court must determine the intent of the parties at the time of the conveyance in order to establish the boundary. DeGroff, 2007 VT 95.

The long standing principle that specific descriptions prevail over general descriptions applies in determining the grantor's intent with respect to parcel boundaries. Pine Haven North Shore Ass'n v. Nesti, 138 Vt. 381 (1980). General intent to create a parcel with a certain acreage cannot operate to enlarge a parcel whose boundary and size can determined from the property description. Statements of acreage are given the least weight in determining the intent of the grantor. Brown v. Casella, 135 Vt. 62 (1977); Wheller v. Hoffman, Docket No. 40-2-07 Oeev (Feb. 13, 2009, Hon. Mary Miles Teachout).

Monuments control over courses and distances, and natural monuments control over artificial monuments. Marshall v. Bruce, 149 Vt. 351 (1988); Wheller v. Hoffman, Docket No. 40-2-07 at pg. 5. The reason is that "it is more likely that there would be a mistake or misunderstanding about the course or distance than about the boundary or monument." Id. (quoting Neill v. Ward, 103 Vt. 117, 148 (1930)). Courses and distances may govern the location of property boundaries where the existence of or location of monuments referred to in a deed are not proved. Thomas v. Olds, 150 Vt. 634 (1988); Wheller v. Hoffman, Docket No. 40-2-07 at pg. 5. Markers must be referred to in the deed in order to be monuments. Id.; Hadlock v. Pouture, 139 Vt. 124 (1980); Thomas Olds, 150 Vt. 634 (1988).

For secondary sources that will assist you in litigating boundary disputes see: 46 Am Jur Proof of Facts 2d, Intent of Parties to Ambiguous Deed, 695; 73 ALR 3d, Necessary or Proper Parties to Suit of Proceeding to establish Private Boundary Line, 948 (1976); 113 ALR 421, Establishment of Boundary Line by Oral Agreement or Acquiescence, 948 (1976); 42 Cause of Action 2d, Cause of Action to Establish Boundary Between Adjoining Property Owners, 489 (2012); Am Jur. Pleadings and Practice Forms, Boundaries (2012); 79 ALR 4th, Admissibility of Reputation as to the Land Boundaries or Customs Affecting Land under Rule 803(20) of the Rules of Evidence and similar Formulations, 1044 (1990).

4. Fact Gathering.

When confronted with a potential boundary dispute, fact gathering is the most important. Besides interviewing witnesses with an understanding of the property, copies of all documents regarding the property must be gathered. This includes photographs, surveys, aerial photographs, title policies, deeds, zoning and state permits.

After obtaining as much information as possible, a title examination needs to be performed to ascertain the chain of title and a description of the parcels of the real estate which are subject of the boundary dispute. In conducting the title search, certified copies of all deeds and surveys and recorded evidence should be obtained from the town clerk as certified copies will be needed at trial unless opposing counsel will stipulate to their admissibility. In addition to conducting a title search, all documents from the town clerk's office should be requested including tax maps, lister's cards, town highway maps and other documents which may be available.

Ortho photos should also be obtained if adverse possession and acquiescence will be involved in the boundary dispute. Current ortho photos can be located at Vermont Parcel Viewer. Older aerial photographs can be located at Google Earth. The Department of Agriculture also has aerial maps of Vermont going back many years.

5. Survey.

After obtaining all documents and information including interviewing potential witnesses, surveys should be obtained. It is highly recommended that a licensed surveyor be obtained. The surveyor should be prepared to testify at trial. Some surveyors are not comfortable testifying as an expert in a trial. Before selecting a surveyor, choose one that has litigation experience and will stand behind his or her opinion by testifying as an expert. Just like with other experts, not all surveyors make good witnesses. Ascertain from the surveyor if they have testified in court and, if so, speak with the attorney who was involved in the case to ascertain how the surveyor did as an expert witness. Most boundary disputes that are litigated involve competing experts and a judge often decides the case on which expert is more credible. As such, selecting the right surveyor is one of the most important things you will do in the case.

It is important to remember that a registered or licensed surveyor may testify as an expert witness and his testimony is admissible in determining boundary between the parties. The surveyor can testify as an expert about work performed by other surveyors and he or she can testify as to his or her own survey performed on the property in dispute. The surveyor's expert opinion can be based upon deed descriptions, field notes, maps, other surveys, points on the ground, facts proved by other witnesses and hearsay evidence, but if a surveyor does not have a factual basis for his location of the boundary line his or her conclusion is not evidence of the location of the boundary. See First Congregational Church of Enosburg v. Manley, 183 Vt. 574, 2008 Vt. 9 (2008). Land surveyors can produce representation of location of boundaries that do not meet the requirements of a survey. Id; State v. Brooks, 2004 Vt. 88, 177 Vt. 161 (2004). Despite the fact that a survey does not need to meet the requirements of a survey to be recorded, it is recommended that the expert attempt to produce a survey which meets the recording requirements so that it may be recorded in the event your client prevails at trial.

When retaining a surveyor or any other expert, it is important to remember that all communications with the expert are discoverable. Although the recent amendment to V.R.C.P. 26 limits the information that may be obtained by the opposing party from an expert, innocent comments made to or by an expert can undermine your entire case.

Remember that surveyors, like attorneys and other professionals, are not all equal. Do some background checking. Have they testified before as an expert? What is their reputation? Do they follow the Rules of Land Surveyor's and Vermont Standards?

6. Mediation.

Once your fact gathering has been completed, it is recommended that mediation be suggested to the opposing property owner. Although most mediations occur after a lawsuit has been filed, considerable expenses can be saved if parties mediate before a complaint is filed. The selection of a mediator is very important in boundary disputes. The mediator should have considerable experience in real estate, boundary disputes, permitting and litigation. Even if the title insurance company has denied coverage, it is recommended that they be invited to participate in the mediation. Most title companies would prefer to participate in pre-suit mediation before a lawsuit is filed against the company regarding coverage.

7. Complaint.

If all avenues of settlement are exhausted, and the matter must proceed to litigation, a complaint must be filed.

A. Parties. The first step in preparing for litigation is to ascertain the proper parties to the lawsuit. Besides the owners of the property in dispute, other parties may be necessary parties. It may be necessary to include other surrounding property owners that may be affected by a boundary change. If a right-of-way or easement are at dispute, all parties who have an interest in that right-of-way or easement should be named as well. See 73 ALR 3d, Necessary or Proper Parties to Suit of Proceeding to Establish Private Boundary Line, 948 (1976). It may also be necessary to include as parties the owners who have a remainder interest in the property. It may be also necessary to include the common grantor of the parties as a necessary party to the suit. It is also very important that you ascertain if any of the parties are married and the spouse is not title owner to the property. If this is the case, the spouse should be named as they may have a homestead interest in the property. Other proper parties to a suit to ascertain boundaries are tenants, occupants, and life tenants. Finally, it is very important that you ascertain if a mortgage on the property is in dispute. If so, the holder of the mortgage should be named in the lawsuit.

B. Jurisdiction. After the parties are ascertained, the next decision to make is what court has proper jurisdiction over the dispute. In Vermont, jurisdiction over boundary disputes is generally vested in the county in which the land is situated. 4 V.S.A. §113; 12 V.S.A. § 4711 and 4 V.S.A. § 402.

C. Causes of Action. After parties and jurisdiction have been resolved, you must then determine what causes of action should be pled in the complaint or counterclaim. The most common causes of action are:

1. Declaratory Relief. A declaratory judgment action is the most common cause of action in boundary dispute litigation. Statutory authority for declaratory judgment is found at 12 V.S.A. § 4711. In order to file a declaratory judgment, there must be a controversy and that controversy must involve a threat of actual injury to the parties' protected interests. Doria v. University of Vermont, 156 Vt. 114 (1991). The court will not issue advisory opinions. Id.
2. Quiet Title. Most complaints involving boundary disputes include a count for quiet title. Quiet title is similar to a count for declaratory relief. A sample complaint to quiet title can be found at 42 Cause of Action 2d, Cause of Action to Establish Boundary Between Adjoining Porperty Owners, 489 § 46.
3. Trespass. In addition to resolving the actual boundary dispute, it is recommended that a count for trespass also be included. Only by including a trespass cause of action will a party be entitled to recover damages. Trespass is a direct physical interference with, or unlawful or unauthorized physical invasion of another's property. 75 Am. Jur. 2d. Trespass § 4. Trespass is not based on an omission to perform a duty, but rather an affirmative act or a misfeasance, such as where invasions have occurred more than once and without a remedy to the situation, appear willful. Id.
4. Conversion. If a trespass has occurred and a trespasser had somehow taken value from the property upon which he or she has trespassed, the plaintiff should include a count for conversion. Conversion consists either in "the appropriation of the property to the parties own use and beneficial enjoyment, or in its destruction, or in exercise and dominion over it in exclusion or defiance of the owner's right, or in withholding possession from the owner under claim of title inconsistent with his title." Economou v. Carpenter, 124 Vt. 451 (1965). Liability for conversion requires that the defendant commit an overt act in reference to the subject property. Id. In addition to a claim for conversion, if there is wrongful tree cutting, a cause of action under 13 V.S.A. § 3606, for loss of recovery of value of trees wrongfully cut by another party. The landowner is entitled to an award of treble damages for conversion if the cutting of the tress was willful or the defendant landowner did not have good reason to believe that the trees were on their property. See Pion v. Bean, 176 Vt. 1 (2003).
5. Adverse Possession/Prescriptive Use. If a boundary dispute involves adverse use or prescriptive use of the property, a cause of action for adverse possession must be included. All elements of adverse possession must be pled including the statutory period of 15 years. See Greenmont Lumber Corp. v. Berger, 154 Vt. 121 (1990); Jarvis v. Gillespie, 155 Vt. 633 (1991); Lakeview Farm, Inc. v. Enman, 166 Vt. 158 (1997); Okemo Mountain, Inc. v. Town of Ludlow, 171 Vt. 201 (2000); Lysak v. Grull, 174 Vt. 523 (2002); McDonough-Webster Lodge No. 26 v. Wells, 175 Vt. 382, 203 Vt. 70 (2003); In Re: Town Highway No. 20 of Town of Georgia, 175 Vt. 626, 2003 Vt. 76 (2003); Rowe v. Lavanway, 180 Vt. 505 (2006); First Congregational Church of Enosburg v. Manley, 183 Vt. 574, 208 Vt. 9 (2008); Cameron's Run, LLP v. Frohock, 188 Vt. 610, 210 Vt. 60 (2010); Mahoney v. Tara, LLC, 189 Vt. 557, 211 Vt. 3 (2011); and 12 V.S.A. § 501.

   One acquires title by adverse possession through 'open, notorious, hostile and continuous possession of another's property for a period of fifteen years.'" Jarvis v. Gillespie, 155 Vt. 633, 638 (1991) (quoting Moran v. Byrne, 149 Vt. 353, 355 (1988)) (internal quotations omitted). "The ultimate fact to be proved in an adverse possession case is that the claimant has acted toward the land in question as would an average owner, taking properly into account the geophysical nature of the land." Id. (quoting 7 R. Powell, The Law of Real Property ¶ 1013[2][h], at 91–62 (1990)). A recent Superior Court decision in Carroll v. Casey, Docket 23-CV-02138 (8/10/2023, Hon. D. Bara presiding) is attached. This decision is a good example of what can happen when two neighbors fight over a parcel of land. See also, Mahoney v. Tara, LLC, 2014 VT 90, ¶ 9 (quoting Roy v. Woodstock Cmty. Trust, Inc., 2013 VT 100A, ¶ 35) ("Once the prescriptive period has run, the adverse possessor acquires title as perfect as acquisition by grant. Thus, an adverse possession claim is really one for recognition of title and enforcement of the rights that accompany title.") (internal citations and quotations omitted); Fairdealing Apostolic Church, Inc. v. Casinger, 353 S.W.3d 396, 399 (Mo. Ct. App. 2011) (quoting Kitterman v. Simrall, 924 S.W.2d 872, 876 (Mo. Ct. App. 1996)) ("The [statutory period] must be consecutive, but need not immediately precede the lawsuit. Once that period has run, 'the possessor is vested with title and the record owner is divested.'") (internal citations omitted).

6. Acquiescence. Depending on the facts of the case, a cause of action or counterclaim for acquiescence should be pled. A cause of action for acquiescence should include allegations that the location of the true boundaries between the tracts of land are uncertain, that the parties have acquiesced in and recognized the boundary between the tracts of land and that the acquiescence has occurred continuously for 15 years. See Okemo Mountain, Inc. v. Lysobey, 178 Vt. 608 611 (2005); Heath v. Dudley, 148 Vt. 145, 148 (1987); Lakeview Farm, 166 Vt. at 162; O'Neil v. Buchanan, 136 Vt. 331, 333 (1998); First Congregational Church of Enosburg v. Manley, 183 Vt. 574, 2008 VT 9 (2008); Thurston v. Batchellor, 100 Vt. 334 (1927). See also Carroll v. Casey, Docket 23-CV-02138 (8/10/2023, Hon. D. Bara presiding)
7. Injunctive Relief. The complaint in the boundary dispute should include a request for injunctive relief that prohibits or enjoins further encroachment or trespass. Depending on the circumstances, temporary and preliminary injunction should be sought. Temporary injunctions may be granted without notice to opposing party pursuant to V.R.C.P. 65(a). Preliminary injunctions can only be issued after notice and hearing. V.C.R.P. 65(b). Where prerequisites are shown, an injunction may issue in an action for declaratory relief. Greys v. Town of Waitsfield, 130 Vt. 292 (1972). Injunctive relief may be granted where it is shown that the party seeking the injunction will suffer irreparable harm if it is not issued. Vermont Division of State Buildings v. Town of Castleton Board of Adjustment, 138 Vt. 250 (1980).
8. Bad Faith/Punitive Damages. In order to demonstrate a case of bad faith to recover punitive damages, you must satisfy two elements: the first is wrongful conduct that is outrageously reprehensible, and the second is malice, defined variously as bad motive, ill will, personal spite or hatred, reckless disregard and the like. Fly Fish Vermont, Inc. v. Chapin Hill Estates, Inc., 187 Vt. 541 (2010); see also 75 Am. Jur. 2d, Trespass § 121 (punitive damages may be awarded as punishment for trespass which was deliberate, willful, rude, reckless, grossly negligent, wanton, malicious or fraudulent).

8. Defenses and Counterclaims

It is important that all affirmative defenses be pled. In addition, a counterclaim should be filed rather than relying on affirmative defenses only. See e.g. Oakley v. Victory in Jesus Ministries, Inc., 210 Westlaw 7794410 (July 16, 2010) (adverse possession should be a counterclaim not just an affirmative defense). There are numerous defenses to a boundary dispute including: Unclean Hands, Waiver, Estoppel, Acquiescence, Laches, License, Adverse Possession/Prescriptive Use, Statute of Limitations, Statute of Frauds, Ratification. See generally 42 Cause of Action 2d, Cause of Action to Establish Boundary Between Adjoining Property Owners, § 19-29.

The defense of acquiescence arises when the plaintiff has failed to enforce a restriction against another and now seeks to enforce the same type of restriction against the defendant. Lakeview Farm, Inc. v. Enman, 166 Vt. 158 (1997). A boundary is established by acquiescence when there is mutual recognition of a given line by the adjoining owners, and such actual continuous possession by one or both to the line for the statutory period required to establish ownership by adverse possession, which is 15 years. Id. at 162; Okemo Mountain, Inc. v. Lysobey, 178 Vt. 608 611 (2005); Both mutual recognition and knowledge of the boundary are required. Id.; Heath v. Dudley, 148 Vt. 145, 148 (1987). Once a boundary is so established, the line is conclusive upon successors in title. Lakeview Farm, 166 Vt. at 162; O'Neil v. Buchanan, 136 Vt. 331, 333 (1998).

Continued satisfaction and compliance with a boundary marked on the ground is persuasive evidence that it is the correct boundary. Okemo, 178 Vt. at 611; N.A.S. Holdings, Inc. v. Pafundi, 169 Vt. 437, 446, 736 A.2d 780, 788 (1999). Satisfaction and compliance are often shown by objective circumstantial evidence rather than subjective testimony. Id.; RHN Corp. v. Veibell, 2004 UT 60, ¶ 25, 96 P.3d 935 (citing cases in which acquiescence was proved by "[o]ccupation up to, but never over, the line," including construction, farming, irrigation, and raising livestock or by silence or failure to object to a line). In order to establish a boundary line by acquiescence the line acquiesced in must be known, definite and certain. Lakeview Farm, Inc. v. Enman, 166 Vt. 158 (1997); Okemo Mountain, Inc. v. Lysobey, 178 Vt. 608 611 (2005). Practical location of a boundary line must be an act of the parties, either express or implied; and it must be mutual, so that both parties are equally affected by it. It must be definitely and equally known, understood and settled. Id. See also 7 A.L.R. 4^th, Sufficiency of Showing, in Establishing Boundary by Parol Agreement, That Boundary Was Uncertain or in Dispute Before Agreement, 132 (1989).

A boundary line is conclusively established when it has been practically located and acquiesced by the parties for 15 years, the time period required to establish title by adverse possession. The period of acquiescence must continue uninterrupted for the full period of the statute of limitations. Lakeview Farm, 166 Vt. At 162; O'Neil v. Buchanan, 136 Vt. 331, 333 (1998).

A practical location of a boundary line and an acquiescence therein for more than the statutory period is conclusive of the location of such boundary however the courts have ruled that a fence of convenience does not established acquiescence. A fence of convenience not intended to be a boundary fence does not establish adverse possession or acquiescence. First Congregational Church of Enosburg v. Manley, 183 Vt. 574, 2008 VT 9 (2008); Thurston v. Batchellor, 100 Vt. 334 (1927) (stating that to have that effect the fence must have been erected and maintained for the purpose of enclosing the land as the property of the person who seeks to make adverse claim to it, and not for his convenience in the occupation of his other lands).

A helpful article on acquiescence can be found at 113 ALR, Establishment of Boundary Line by Oral Agreement or Acquiescence, 421 (Supp 2012).

The doctrine of estoppel has been defined generally as an affirmative defense precluding a person from asserting or denying a fact that has been admitted or determined under circumstances which has by an act induced another to believe and act upon that belief to his prejudice. 28 Am. Jur. 2d, Estoppel and Waiver, § 39; Beecher v. Stratton Corp., 170 Vt. 137, 140, 743 A.2d 1093, 1096 (1999). Estoppel prohibits a person from claiming a right or questioning a fact because that person's word or deed induced another party, in rightful reliance thereon, to act or change position to his or her detriment. Estoppel may be used to prevent a party from asserting a fact inconsistent with a deed or previous adjudication of his rights which would result in injury to another party. The doctrine of equitable estoppel is founded on concepts of equity and fair dealing and provides that a person may not deny the existence of a state of facts if he or she intentionally led another to believe a particular circumstance to be true and to rely upon such belief to his or her detriment. Id.

"The elements that must be satisfied for the doctrine of equitable estoppel to apply include: (1) conduct that amounts to a false representation or concealment of material facts or, at least, that is calculated to convey the impression that the facts are otherwise than, and inconsistent with, those that the party subsequently attempts to assert; (2) the intention, or at least the expectation, that such conduct shall be acted upon by, or influence, the other party or other persons; (3) knowledge, actual, constructive, or implied, of the real facts; (4) lack of knowledge and of the means of knowledge of the truth as to the facts in question; (5) reliance, in good faith, upon the conduct or statements of the party to be estopped; (6) action or inaction based thereon of such a character as to change the position or status of the party claiming the estoppel; and (7) resulting in detriment, prejudice, or pecuniary disadvantage unless the first party is estopped from asserting an otherwise valid right in contradiction to his or her earlier representation. 28 Am. Jur. 2d, Estoppel and Waiver, § 39.

The erection of improvements by one adjoining owner after entering lands in accordance with an agreement, or an acquiescence for a long period of time, as to the location of a boundary line may estop the other from asserting that such boundary line was not the true line. 12 Am. Jur. 2d, Boundaries, § 83. A landowner who knows the true line and silently permits an adjoining owner to make substantial improvements past the line unknowingly is estopped to claim to the true boundary; and the same is true if a landowner by conduct or assertions as to the boundary line is instrumental in having the improvements made past the true line. Id.

For Vermont cases addressing estoppel see: Mahoney v. Tara, LLC, 189 Vt. 557, 2011 VT 3 (2011); Guibord v. Scholtz, 179 Vt. 623 (2006); Pelletier v. Gosselin, 2004 Westlaw 5582089 (2004 Vt.); and Cupola Golf Course, Inc. v. Dooley, 179 Vt. 427, 2006 VT 25 (2006).

Adverse possession is a defense as well as a cause of action. Adverse possession is a mixed question of law and fact. First Congregational Church of Enosburg v. Manley, 183 Vt. 574 (2008). The ultimate element in the rise of a title through adverse possession is the acquiescence of the real owner in the exercise of an obvious, adverse, or hostile ownership through the statutory period. Jenks v. Slade, Addison Superior Court, Docket No.: 95-5-00 Ancv (2001); see also 3 Am.Jur.2d, Adverse Possession, § 8; Laird Properties New Eng. Land Syndicate v. Mad River Corp., 131 Vt. 268, 277 (1973). Put another way, one acquires title by adverse possession through actual, open, notorious, hostile and continuous possession of another's property for a period of fifteen years. Moran v. Byrne, 149 Vt. 353, 355, (1988); see also 12 V.S.A. §501. The open and notorious elements may be asserted under either a claim of title or a claim of right. First Congregational Church of Enosburg v. Manley, 183 Vt. 574 (2008).

Acts of possession are deemed sufficiently open and notorious if they are conducted in a manner which would put a person of ordinary prudence on notice of the claim. Jenks v. Slade, Addison Superior Court, Docket No.: 95-5-00 Ancv (2001) at page 7. The burden of proving adverse possession is on the parties claiming it. Id.; see also Higgins v. Ringwig, 128 Vt. 534, 267 (1970); Bemis v. Lamb, 135 Vt. 618 (1978)("[i]n establishing adverse possession, the burden is on the proponent to prove to the satisfaction of the trier of fact that there has been open, notorious, hostile, and continuous possession through the statutory period of time").

Absent evidence of permission, open and notorious use for the statutorily prescribed period of time gives rise to a prima facie claim of a right. See Zuanich v. Quero, 135 Vt. 322, 325 (1977). To acquire title to a piece of property through adverse possession, a party must establish open, notorious, hostile, and continuous possession of the property throughout the statutory period of fifteen years. Lysak v. Grull, 174 Vt. 523, 526, 812 A.2d 840 (2002) (mem.); 12 V.S.A. § 501. The party claiming adverse possession bears the burden of establishing that these requirements are satisfied. Id.

Unlike a lot of legal theories in Vermont, there are numerous cases by the Vermont Supreme Court regarding adverse possession. See e.g. Greenmont Lumber Corp. v. Berger, 154 Vt. 121 (1990); Jarvis v. Gillespie, 155 Vt. 633 (1991); Lakeview Farm, Inc. v. Enman, 166 Vt. 158 (1997); Okemo Mountain, Inc. v. Town of Ludlow, 171 Vt. 201 (2000); Lysak v. Grull, 174 Vt. 523 (2002); McDonough-Webster Lodge No. 26 v. Wells, 175 Vt. 382, 203 Vt. 70 (2003); In Re: Town Highway No. 20 of Town of Georgia, 175 Vt. 626, 2003 Vt. 76 (2003); Rowe v. Lavanway, 180 Vt. 505 (2006); First Congregational Church of Enosburg v. Manley, 183 Vt. 574, 208 Vt. 9 (2008); Cameron's Run, LLP v. Frohock, 188 Vt. 610, 210 Vt. 60 (2010); Oakley v. Victory in Jesus Ministries, Inc., 210 Westlaw 7794410 (July 16, 2010) (unreported); Adams Family Property v. Tomasi, 2010 Westlaw 7791795 (August 18, 2010) (unreported); Mahoney v. Tara, LLC, 189 Vt. 557, 211 Vt. 3 (2011); Chase v. Taft Hill Tree Farm, Inc., 197 Vt. 655 (2014); Roy v. Woodstock Cmty Trust, 2013 VT 100A; Parker v. Potter, 2014 VT 109; Mahoney v. Tara, 2014 VT 90; Old Rail Road Bed, LLC v. Marcus, 2014 VT 23.

Where there is no claim of title and a lot has no definite boundary marks, adverse possession can only extend as far as a claim that it has actually occupied and possessed the land in dispute. Community Feed Store, Inc. v. N.E. Culvert Corporation, 151 Vt. 152 (1989).

The court has considerable discretion in whether the elements of adverse possession have been met. There are numerous cases where courts have held certain facts to meet the elements of adverse possession where in other similar cases the court has ruled the other way. It is therefore very important that the attorney representing parties in adverse possession claims present as much credible evidence as possible to establish adverse possession as a matter of law. Only on rare occasions, will the trial court be reversed in adverse possession claims. See First Congregational Church of Enosburg v. Manley, 183 Vt. 574, 208 Vt. 9 (2008) (the court's determination of a boundary line is a question of fact to be determined by the trial court and the Supreme Court will not disturb the trial court's findings of fact unless they are clearly erroneous, despite inconsistencies or substantial evidence to the contrary).

A reading of the numerous cases will help understand which acts may or may not establish adverse possession: While yearly hunting is not sufficient use to lay the basis for adverse possession, yearly use of camping ground can constitute a sufficient use, Darling v. Ennis, 138 Vt. 311 (1980); it is not sufficient that a party go upon the land occasionally, and cut a few trees or repair a fence to establish adverse possession, Wells v. Austin, 59 Vt. 157 (1887); the tapping of trees during the sugar season can be insufficient if the property is separated from the home farm by intervening lands, owned and occupied by others, Wilson v. Blake, 53 Vt. 305 (1880); occasional acts of turning cattle into lands and cutting timber, which were resisted by the landlord and his tenants, who maintain exclusive possession, can only amount to trespass and give no possession in fact or law, Swift v. Gage, 26 Vt. 224 (1854); planting of trees by property owner and later maintenance of property were not sufficient to establish adverse possession of boundary strip adjoining property, Harlow v. Miller, 147 Vt. 480 (1986); children's ball games, planting of a small garden, running with dog, placement of boat trailer, and parking cars on disputed portion of lakefront property were not "obvious adverse uses of the disputed property", Deyrup v. Schmitt, 132 Vt. 423 (1974); adverse possession established by replacement of septic system, construction of retaining wall and stairway, and non-payment of rent, Lawrence v. Pelletier, 154 Vt. 29, 34; lawn mowing and parking cars did not establish adverse possession, First Congregational Church of Enosburg v. Manley, 183 Vt. 574, 2008 VT 9 (2008).

9. Motions for Summary Judgment

Unless there are no material issues of fact in dispute, summary judgment is very seldom granted in boundary cases. Before drafting a motion for summary judgment, under V.R.C.P. 56, it should be abundantly clear that there are no issues of fact in dispute and that the client is entitled to summary judgment. Normally, boundary disputes contain numerous issues of fact and therefore summary judgment is seldom granted. Partial motions for summary judgment can be helpful to remove portions of the case from trial. For example, if a party has pled punitive damages in the complaint or counterclaim, and the facts do not show a willful act, it may be wise to file a motion for summary judgment on this issue so that it does not have to be addressed at trial.

10. Discovery

Because boundary cases are so fact intensive, it is recommended that interrogatories and requests to produce be served on the opposing parties. Expert interrogatories should also be served so that the qualifications of the expert can be ascertained and copies of any documents upon which the expert is relying can be obtained. In addition to interrogatories and requests to produce, requests to admit are often helpful in boundary cases. If there are documents which authenticity is in question, requests to admit should be filed requesting that their authenticity be admitted. Finally, a deposition of all material witnesses should be taken. If expenses and attorneys' fees are a concern, then at a minimum, depositions of experts should be taken.

11. Trial

Well in advance of the trial, a request for a site visit should be made pursuant to 12 V.S.A. § 1948. A site visit will assist the court and/or the jury with an understanding of the issues. Photographs and surveys are helpful but actually viewing the property in question is very important to a finder of fact. The request for site visit must be filed in writing well in advance of trial.

At the beginning of the trial, all relevant deeds should be admitted into evidence. As the deeds speak for themselves, the court will often times prevent lay witnesses from testifying as to the language contained in the deeds. If questioning of witnesses of the deeds is to be undertaken, it is highly recommended that a power point presentation be used so that all parties and witnesses and finders of fact can follow the review of the deeds.

If certified copies of the deeds are produced, no further evidence of proof of title need be produced. If there is a break in the chain of title or title cannot be established by the deeds and surveys themselves, parol evidence on the issue of title may need to be brought forth.

After the deeds and other documents are put into evidence, the survey should then be admitted into evidence by testimony from the surveyor. It is highly recommended that the expert surveyor be present during the entire trial. It is recommended that the surveyor be called later in the case after hearing witnesses testify regarding the boundaries. Under Vermont Rules of Evidence 702, the expert can offer the survey as a representation of his expert opinion. See Thomas v. Olds, 150 Vt. 634 (1989).

Aerial photographs of the boundary line, before and after the activity in question, are persuasive evidence. The aerial photographs must be authenticated under the rules of evidence which will most likely require the calling of an expert from the aerial photographing company that prepared the prints. Aerial photographs can be obtained for most locations in Vermont for the past 30 years.

In boundary and other real estate litigation, there are several Rules of Evidence that may be useful. VRE 803(16) allows ancient documents over 20 years. This is helpful with maps and other evidence that would normally be precluded because it is hearsay. VRE 803(20) and (23) as well as VRE 804(b)(4) allow certain hearsay evidence as to boundaries of or customs affecting lands. VRE 902 allows the admissibility of certain evidence when they are under seal, certified and/or acknowledged. As with all trials, it is important to have a firm knowledge of the Rules of Evidence especially when attempting to have important evidence admitted into evidence.

12. Proposed Findings

It is recommended that proposed findings of fact and conclusions of law be submitted before trial. The proposed findings should cite to exhibits even though they have not been admitted yet. All exhibits should be pre-marked in advance of trial. As most courts do not have stenographers, and some do not even have a court reporters now, pre-marking of the exhibits is essential. An exhibit list should be prepared and provided to the opposing parties, the court clerk and to the judge. After evidence has closed, supplemental proposed findings and conclusions of law should be submitted. It is impossible to foresee all issues that may arise during the trial therefore supplemental findings and conclusions of law should be submitted. To assist the court, you should offer to e-mail the proposed findings and conclusions of law to avoid the court having to type the findings.

13. Proposed Judgment Order

A proposed judgment should issue a declaration in accordance with the quiet title and declaratory judgment counts, establishing the rights, duties, obligations and restrictions resolved as a result of the boundary dispute trial. The proposed judgment should also issue a mandatory prohibitory injunction of a permanent nature. Finally, the judgment should specifically address money damages if they have been established during the trial. If a survey was admitted into evidence, it is recommended that the judgment order specifically state that the boundaries are set forth in the survey which will be recorded in the land records along with the judgment order.

14. Court Decisions

There are probably more reported decisions regarding boundary disputes than most other areas of the law. The reason being is that many boundary disputes go to trial because property is so personal and important to parties. Attached is a recent Superior Court decision that is a normal adverse possession case, Carroll, et al v. Casey, et al, Docket No. 23-CV-02135. The Carroll case dealt with many issues that are found in boundary cases. After drawing a jury, the case settled a few days before trial.

Also attached is a decision in Anderson v. Green Mountain Feeds, Inc., Docket No. 324-8-19 Wrcv. This case went to trial over four days and resulted in the decision. Green Mountain Feeds appealed the judgment to the Vermont Supreme Court. While on appeal, the parties reached a settlement.

ENTRY REGARDING MOTION

Title: Motion for Summary Judgment (Motion: 4)
Filer: James M. Dingley
Filed Date: August 10, 2023

This case involves a land dispute between neighbors. Plaintiffs John Carroll and Tracy Staton own property to the west of Defendants Silas Casey and Sonya Casey. Plaintiffs purchased their property from the estate of Lois Rosencrantz in 2011, who had owned it with her husband for two generations. Defendants purchased their property from the estate of Silas Casey's grandmother in 2022, who similarly had owned the land with her husband for many years. As a part of their purchase, Defendants commissioned a survey of their property which ultimately gave rise to this dispute. The survey indicated that Defendants' land extended further into Plaintiffs' property than Plaintiffs agree with. This dispute centers around that 50-foot by 125-foot parcel of land in which Defendants now claim record title and Plaintiffs claim ownership by adverse possession that extends backwards approximately sixty years. Defendants filed a motion for summary judgment against this claim of adverse possession and the associated trespass and nuisance claims.¹ Plaintiffs oppose.

Defendants argue that Plaintiffs' claims lack sufficient evidence to reach a jury. In particular, they dispute every element of adverse possession and advance three main arguments: that the affidavits and depositions of Plaintiffs' witnesses are not based on personal knowledge; a lack of evidence as to the existence and purpose of a stonewall and hedgerow between the properties; and that the Rosencrantzes' and Plaintiffs' activities on the disputed area do not rise to the level of open and notorious use necessary for adverse possession. Defendants also challenge some of Plaintiffs' evidence as inadmissible.

In response, Plaintiffs argue that the Rosencrantzes completed their ownership by adverse possession many years ago, or if not, that tacking of time accounts for the required fifteen years of possession. Plaintiffs argue their use and the Rosencrantzes' use of maintaining the disputed property, allowing a hedgerow to grow, planting trees, playing on the property, and generally using the area for backyard activities meets the requirements of open and notorious. In briefing, they also assert ownership by acquiescence.

DISCUSSION

A. Standard for Adverse Possession

As a preliminary matter, Defendants and Plaintiffs dispute the standard to satisfy the burden of proving adverse possession. Defendants assert that the standard is "clear and convincing" while Plaintiffs assert it is "preponderance of the evidence."

Although the Vermont Supreme Court has not explicitly addressed the proper standard to meet the burden of proof for an adverse possession claim, it has implied that it is the preponderance standard unless the adverse possession claim is between family members. See Harlow v. Miller, 147 Vt. 480, 483–84 (1986) ("Where a family relationship between claimants is involved, proof of adverse possession must be established by stronger evidence than is required in other cases."); see also Benson v. Lowe, No. 2020-021, 2020 WL 3045993, at *3 (stating that the Vermont Supreme Court has not addressed whether the standard of proof for prescriptive easements is "clear and convincing."). Use of the preponderance standard is routine. See, e.g., Laquerre v. Town of Woodbury, No. 347-6-17 Wncv, 2018 WL 11358620 (Vt. Super. Ct. Feb. 23, 2018); Parker v. Potter, No. 107-5-12 Ancv, 2013 WL 5313421 (Vt. Super. Ct. June 04, 2013); Adams Family Properties, Inc. v. Tomasi, No. 539-9-06 Rdcv, 2009 WL 6551412 (Vt. Super. Ct. Nov. 23, 2009).

For these reasons, the court will apply the ordinary civil preponderance standard in this case.

B. Procedural Standard for Summary Judgement

A motion for summary judgment is appropriate when "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." V.R.C.P. 56(a). Allegations of the nonmoving party, if supported by admissible evidence, are regarded as true when determining if a genuine issue of material fact exists. Morisseau v. Hannaford Bros., 2016 VT 17, ¶ 12, 201 Vt. 313. The benefit of reasonable doubts and inferences goes to the nonmoving party. Id. The procedures of Rule 56 should be construed liberally in favor of resolving disputes on the merits. Stone v. Town of Irasburg, 2014 VT 43, ¶ 57, 196 Vt. 356.

A moving party has the burden of proving there are no disputed issues of material fact that exist. Fitzgerald v. Congleton, 155 Vt. 283, 294 (1990). When a moving party is a defendant, i.e., the moving party does not bear the burden of persuasion at trial, the defendant may satisfy their burden of production by showing the court there is an absence of evidence to support the plaintiff's case. Boyd, 2022 VT 12, ¶ 19. The burden then shifts to the plaintiff to show there are material facts in dispute. Id. The evidence brought forward by the plaintiff must be more than "mere conjecture, surmise or suspicion" as that is an insufficient foundation for a verdict. Id. (quoting Fuller v. City of Rutland, 122 Vt. 284, 289 (1961)). A plaintiff defeats a motion for summary judgment if they respond with specific facts raising triable issues and they demonstrate sufficient evidence to support a prima facie case. State v. G.S. Blodgett Co., 163 VT 175, 180 (1995).

C. Elements of Adverse Possession

The elements of adverse possession are that the use of the land was (1) open, (2) notorious, (3) hostile, (4) continuous, and (5) for the statutory period of fifteen years. First Congregational Church of Enosburg v. Manley, 2008 VT 9, ¶ 13, 183 Vt. 574. Open and notorious acts are those conducted in a manner which are so notorious they would put an average owner on notice of the adverse possessor's claim to absolute dominion of the property. Old Railroad Bed, LLC v. Marcus, 2014 VT 23, ¶ 24, 196 Vt. 74. Hostility does not require ill will, but that the adverse possessor intends to claim the land and treat it as his or her own. Id. Continuous use does not mean constant use; it means that the adverse possessor is using the land in the same way an average owner would, taking into account its nature and condition. Adams Family Properties v. Tomasi, No. 2009-480, 2010 WL 7791795, at *2, (Vt. Aug. 18, 2010) (unpublished mem.); see also Jarvis v. Gillespie, 155 Vt. 633, 639 (1991). Stated in other words, the elements of adverse possession are met when an adverse possessor "unfurl[s] his flag on the land, and keep[s] it flying so that the owner may see … the enemy has invaded his dominions and planted his standard of conquest." Old Railroad Bed, LLC, 2014 VT 23, ¶ 24 (quoting Moran v. Byrne, 149 Vt. 353, 355 (1988) (internal quotations omitted)).

The statutory timeframe required for adverse possession may be based on the doctrine of "tacking." Laird Properties New England Land Syndicate v. Mad River Corp., 131 Vt. 268, 277 (1973). The doctrine allows an adverse possessor to add their period of possession to that of a prior adverse possessor to establish continuous possession for the statutory period. Id.

D. Lack of Personal Knowledge of Affiant and Deponent

Allegations made in opposition to a motion for summary judgment are accepted as true, so long as they are supported by affidavits or other evidence. Gates v. Mack Molding Comp., Inc. 2022 VT 24, ¶ 13, 216 Vt. 379. Affidavits are not excluded simply because they conflict with a deposition. Pierce v. Riggs, 149 Vt. 136, 139 (1987). They must be made on personal knowledge. V.R.C.P. 56(c)(4); Gates, 2022 VT 24, ¶ 36. Affidavits should not be conclusory, but instead provide enough details for a court to independently draw conclusions. See State v. Melchoior, 172 Vt. 248, 250–51 (2001).

Defendants argue that Ms. Pratt's affidavit is not based on personal knowledge because she moved out of her parents' house around 1968, creating a gap in knowledge of the fifteen-year time for adverse possession. Personal knowledge of boundaries and land use does not require an affiant or deponent to be living on the property. Instead, knowledge through visits is sufficient to establish personal knowledge. Ms. Pratt states she visited her parents routinely when she was not living there. See Exhibit I, Pratt Dep. at 42. Additionally, her deposition demonstrates personal knowledge of her mother's statements that she let trees and bushes grow for privacy and her brother's statements regarding the sale of the property. Exhibit I, Pratt Dep. at 86–87.

As to the statutory timeframe argument that underlies the personal knowledge issue, both Ms. Harkins and Ms. Pratt have stated that the property lines, as demonstrated by the tax map or aerial photograph, and the stone walls were "always recognized" by their family. See Exhibit I, Pratt Dep. at 24 ("The stone wall in Exhibits 1, 2, and 3 were there when my parents owned the property, and it was always understood to be the property line between the Rosencrantz and neighbor Janet Casey. The stone wall has been there since at least 1948." (quoting the Pratt Affidavit)); Exhibit 18, Harkins Aff. ("I remember the Western, Northern, and Eastern stone walls/mounds having always been there …. My family always recognized the stone wall or mounds as our … property line boundaries."). Since Ms. Harkins and Ms. Pratt have personal knowledge of their parents' use of the property, their statements may be relied upon to establish the fifteen-year timeframe duration of the adverse possession.

E. Stone Wall and Hedgerow

Defendants argue that there is an absence of evidence relating to whether the prior landowners intended to claim the disputed property as their own for open, notorious, continuous, and hostile use. Defendants argue either that the stone wall and hedgerow do not exist or if they do exist, they were built for purposes other than to mark the boundary line of the properties and keep others out.

i. Existence of Stone Wall or Hedgerow

Ms. Pratt states in her deposition that there was a stone wall on the eastern border of her parents' property that separated their land from the Casey land. Exhibit I, Pratt Dep. at 29–30. She states that her father started to rebuild the wall on the "left," presumably west, and "back" side of their property and it took many years. Id. at 30. She stated that the stone walls "were always there" and that her father was only rebuilding them, not newly erecting them. Id. Ms. Pratt does state she does not see the stone wall in the photograph shown to her in Exhibit 5, only some things that "could be stones." Id. at 37. Ms. Harkins' affidavit also states that the stone wall or mound existed at the eastern border in question and that it was treated as the property boundary by her family. Exhibit 18, Harkins Aff. at 2. Ms. Harkins further states that trees grew over top the stones. Id. Ms. Pratt's deposition testimony and Ms. Harkins' affidavit establish that there is a genuine dispute of a material fact regarding the elements of "open," "notorious," and "continuous." Any dispute about whether stones are visible in a picture is simply a matter of weight of the evidence.

Similarly, Defendants argue that the brush and trees that have grown in the area are not a hedgerow, but instead they are just a natural thicket in the area. Reply at 4–5. This is also an issue of determining both existence and intent. Ms. Pratt's deposition states that the area when she was a child was a "field." Exhibit I, Pratt Dep. at 46–48. At some point between when Ms. Pratt was a child and today an area of trees and brush was grown. See Id. at 87. Therefore, there is a genuine dispute of material fact about the existence of this thicket or hedgerow. This also may have been an obvious sign of possession, particularly because there is evidence that the Rosencrantzes, and subsequently Plaintiffs, were mowing on the western side of the thicket and had once rototilled the area, but then let the thicket grow. See id. at 84.

ii. Intent of Stone Wall and Hedgerow

Courts should exercise caution in granting motions for summary judgment when intent is a dispositive issue. Stamp Tech, Inc. ex rel Blair v. Ludall/Thermal Acoustical, Inc. 2009 VT 91, ¶ 31, 186 Vt. 369. Intent must often be inferred from a party's actions. Id. Caution in granting summary judgment is particularly appropriate when intent is susceptible to competing inferences. Id.

Ms. Pratt's deposition and Ms. Harkin's affidavit create a genuine dispute of material fact as to whether the stone wall and hedgerow were intended to exclude others and claim the land for the Rosencrantzes. Their statements are circumstantial evidence of the intent of the builder of these barriers. That the stone wall or hedgerow existed at or near the claimed property line alone may be evidence of the intent of the builder or grower. Even if Ms. Pratt thinks the intent of her father in rebuilding the stone walls was out of "boredom," there may be a dual intent, or the intent may be found to be different than what Ms. Pratt thinks based on other circumstantial evidence. And Ms. Pratt stated that her father had rototilled the bushes at one point and then allowed the bushes to grow because her mother wanted more privacy. Exhibit I, Pratt Dep. at 84, 87. These statements create a genuine dispute regarding the "hostile" element necessary to establish adverse possession.

F. Type and Character of Property Use

i. Open and Notorious Use

Defendants argue that the use the Rosencrantzes and Plaintiffs made of the property was not sufficient to put a record owner on notice of the claim of dominion. They argue that removing vines and brush, mowing, planting a few trees, and cutting through the area on ski trips is not clear, unequivocal, and definite notice.

Open and notorious use are elements of adverse possession. First Congregational Church of Enosburg, 2008 VT 9, ¶¶ 15–16. Mowing grass or maintaining a yard in a disputed area, alone, is not sufficient to establish adverse possession. Id. However, lawn-mowing may be a part of open and notorious use if combined with other facts. Id. In particular, mowing, planting, and making a border may be sufficient evidence of adverse possession. See id. (citing Collins v. Cabral, 348 Mass. 797, 206 N.E.2d 84, 85 (1995)).

Use of the property to establish adverse possession is very fact-specific as illustrated by two Vermont Supreme Court cases; Jarvis v. Gillespie, 155 Vt. at 640–41; and Deyrup v. Schmitt, 132 Vt. 423, 423–24 (1974). In the first case, using a property for grazing, cutting hay, planting trees, and harvesting trees was sufficient to put an average owner on notice of a claim of adverse possession. Jarvis, 155 Vt. at 639. In the second case, although the adverse possessors had children playing on the property, planted a garden, and used it for boat-trailer parking during seasonal use, the Court reasoned it didn't amount to adverse possession because there were no permanent signs that the seasonal owner was aware of. Deyrup, 132 Vt. at 427.

Here, there is more than just mowing grass and maintaining the property. The property maintenance is combined with the potential physical barriers of a stone wall and hedgerow. It is also combined with rototilling and planting and harvesting trees. Exhibit I, Pratt Dep. at 47, 66–68. Ms. Pratt's deposition states they did other activities like making a garden, hanging laundry and playing as well. It is not clear exactly what Ms. Pratt meant by "the land" but inferences are drawn in favor of the non-moving party, and here the court infers that Ms. Pratt meant at least some of these activities were done in the disputed area. Like in Jarvis, where activities suited to the land were held to amount to adverse possession, here similarly the activities of Plaintiffs and the Rosencrantzes were suited to the backyard-nature of this land. Further, unlike in Deyrup, where the record title owner had no opportunity to observe the sporadic activities, here the Caseys and their predecessors lived on their land and would have the opportunity to observe the activities. Open and notorious use is genuinely disputed.

The court notes a dispute over a page-wire fence. The court is unable to determine the location where the page-wire fence existed based on the Molloy deposition, but the parties seem to agree that it existed in the disputed area and was removed by Mr. Rosencrantz. See Exhibit J, Molloy Dep. at 10. Defendants correctly note that a "fence of convenience" used to contain animals does not necessarily reflect the property line. See Old Railroad Bed, LLC, 2014 VT 23, ¶ 25. However, Defendants mistake the significance, because here it is alleged that Mr. Rosencrantz removed a fence from what Defendants claim as their property. A person removing a fixture from property may represent an act of ownership and an open exercise of dominion over that area. This evidence also demonstrates a genuine dispute regarding whether there was open and notorious use of the disputed land by Plaintiffs and their predecessors.

ii. Continuous Use and Exclusion

Adverse possession can only be obtained through continuous use of the property for the requisite time. Additionally, this element must reflect an "exclusive" possession of the property. See Schonbek v. Chase, 2010 VT 91, ¶ 8, 189 Vt. 79. Use of land by its record title owner disrupts the continuity of adverse possession. MacDonough-Webster Lodge No. 26 v. Wells, 2003 VT 70, ¶ 24, 175 Vt. 382. Defendants argue that Plaintiffs and the Rosencrantzes did not "exclude" others from the property.

Plaintiffs' evidence suggests that they and the Rosencrantzes continually used the property. In particular, the mowing and landscaping use was on a routine basis as it otherwise would be quickly overgrown. See Exhibit I, Pratt Dep. at 48 ("Mowed and kept it clear so that it didn't get overgrown with forest. If you don't mow a field, it's taken over by nature. So he kept the field clear."). The evidence as to routine landscaping and use creates a genuine dispute of material fact as to whether there was continuous use of the disputed area.

The evidence also suggests that Plaintiffs and the Rosencrantzes were the only parties that used the disputed property. See e.g. Pratt Aff. at ¶ 12. There is no need to verbally or physically exclude anyone from the property if the record title owner did not attempt to use the disputed area. The "split rail" fence that borders the Casey property but ends before the disputed area may suggest that Defendants and their predecessors never used the disputed area, at least until recently. See Carroll Aff. at ¶ 11; Exhibit I, Pratt Dep. at 79; Staton Aff. at ¶¶ 11, 14. Exclusivity of use is genuinely disputed.

G. Acquiescence²

A boundary by acquiescence is established when there is "'mutual recognition of a given line by the adjoining owners, and such actual continuous possession by one or both to the line' for the statutory period required to establish ownership by adverse possession." Lakeview Farm, Inc. v. Enman, 166 t. 158, 162 (1997) (quoting D'Orazio v. Pashby, 102 Vt. 480, 487 (1930)). Knowledge of the boundary line and mutual recognition of it are required. Id.

Defendants argue that there was not clear and definite knowledge and recognition of the boundary line. Defendants' argument relies primarily on Heath v. Dudley, 148 Vt. 145, 148 (1987). In that case, mutual logging on each side of a boundary line was not found to be sufficient evidence of acquiescence because "nobody cared" about the boundary line at the time. Id. at 149.

Here, there is sufficient evidence of knowledge and mutual recognition of the stone wall and hedgerow area as the boundary line to create a genuine dispute of material fact. There is more disputed evidence than simply whether the property was mowed and maintained to the line. As stated above, the Caseys built a fence that stopped at this boundary line. Additionally, whether the Caseys or Rosencrantzes cared about the property line is a question of their state of mind. Although Ms. Pratt claimed that no one cared about the boundary lines, see Exhibit I, Pratt Dep. at 57, this characterization is disputed by Mr. Molloy who said the parties acted in a "good old boy" fashion where they "stood beside each other and talked and decided." Exhibit J, Molloy Dep. at 14–15. The fence along the Molloy and subsequently Casey property line and Ms. Rosencrantz's complaint about privacy from a shed being built at the property line also support the inference that the parties cared about the property line. See Exhibit J, Molloy Dep. at 12; Exhibit I, Pratt Dep. at 67. On this record, determining these state-of-mind issues cannot be done as a matter of law. There is a genuine dispute as to acquiescence.

H. Admissibility of Evidence

Defendants argue that some of Plaintiffs' evidence is inadmissible: that a tax map cannot be considered as evidence of a boundary line; that Mr. Molloy, a long-time neighbor and landowner, is giving an inadmissible lay opinion; and that Plaintiffs' surveyor is only opining on a legal conclusion of adverse possession.

First, the tax map, in relation to this motion for summary judgment, has been used only for demonstrative evidence to illustrate and orient Ms. Pratt, Ms. Harkins, and Mr. Malloy in their depositions and affidavits. Demonstrative evidence is distinguishable from "real" evidence in that demonstrative evidence has no direct part in the incident at issue, but instead acts as a model or explanatory aid. It thus has not been used to establish the boundary as Defendants argue.

Second, Defendants argue that Mr. Molloy's belief about the property line is an inadmissible lay opinion under V.R.E. 701. Defendants reason that Mr. Malloy stated in his deposition that he never knew where the property line was, and therefore Defendants argue he cannot opine on a subject about which he has no personal knowledge. Vermont Rule of Evidence 701 allows lay opinions or inference "which are (a) rationally based on the perception of the witness, (b) helpful to a clear understanding of the witness' testimony or determination of a fact in issue, and (c) not based on scientific, technical or other specialized knowledge."

Here, Mr. Molloy does state, "I can't tell 'cause I never knew," in response to a question about the boundary line on a map. Exhibit J, Molly Dep. at 41. He appears to be declining to express an opinion on that topic, but at other times he states the property line was assumed to be the location of a fence. Id. at 42. The court concludes that Mr. Molloy has a memory and perception of the area of the property line and can make a rationally based opinion on the subject. His perceptions, memory, and slightly contradictory statements are a matter of credibility which goes towards the weight of his statements not their admissibility.

Third, Defendants argue the affidavit of expert witness R. Brownson Spencer II is inadmissible because he draws impermissible legal conclusions about whether the elements of adverse possession are met. This issue is moot because the court has not relied on this testimony.

I. Other Claims

Because there are genuine disputes of material fact regarding adverse possession, the court cannot rule as a matter of law on the parties' other claims, all of which depend on who has title to the disputed land.

ORDER

For the foregoing reasons, Defendants' motion for summary judgment is denied.

Signed electronically December 5, 2023 pursuant to V.R.E.F 9(d).

FINDINGS AND DECISION ON THE MERITS

This matter is before the court for decision following a four (4) day bench trial. The dispute concerns the location of a boundary line between a single family residence and a commercial feed operation located near the center of the small town of Bethel, Vermont. Plaintiff claims the boundary of record is defined by a 1915 Deed, and a 1946 boundary line agreement between the parties' predecessors in title. Plaintiff also claims that they acquired title to a portion of the disputed property by adverse possession. Plaintiff claims that the Defendants trespassed on their property and caused damage. Defendants counterclaim that the boundary of record is defined by a survey of the Defendant's property lines completed in 1978 by Lunna. Defendants claim that Plaintiff and/or Plaintiff's predecessor in title acquiesced to the boundary line drawn by Lunna in 1978. Defendants also counterclaim that they acquired title to the disputed property by adverse possession.

As a preliminary matter an issue arose during trial regarding whether Plaintiff pleaded his adverse possession claim adequately. Plaintiff moved to amend to expressly include or clarity his claim for adverse possession. The Defendants opposed the motion. The court took the issue under advisement. The court rules now that the Plaintiff's motion to amend to add the adverse possession claim is granted. The court observes first that the issue of adverse possession was addressed in the original complaint in a way that, while not perfect, served to put the Defendants on notice that Plaintiff was claiming title by adverse possession. The proposed amended complaint, filed near the start of trial, improved the pleading by making it crystal clear the adverse possession was part of Plaintiff's claim. Defendants filed a pre-trial motion for summary judgment in which they address the issue of adverse possession which persuades the court that Defendants understood from the original complaint that Plaintiff was claiming title, in part, by adverse possession. The court is persuaded that both plaintiff's original complaint and the proposed amended complaint adequately pleaded the issue of adverse possession, and that the issue is properly part of the case. The court is not persuaded that Defendants suffered unfair prejudice by Plaintiff's effort to amend the complaint because the new amended complaint did not add any new claims that the Defendants were not aware of at the time of the filing of the original complaint. Accordingly, the motion to amend the complaint is granted. The issue of Plaintiff's claim of adverse possession is before the court for decision whether by virtue of the original complaint or the amended complaint. V.R.C.P. 15.

Findings of Fact

1. Plaintiff James W.T. Anderson, II owns real property located at 18 Main Street in Bethel, Vermont (the "Anderson Property").
2. Defendant Green Mountain Feeds, Inc. ("GMF") owns real property that abuts Plaintiff's property to the north, located at 65 Main Street in Bethel, Vermont (the "Mill Property").
3. The dispute between the parties concerns the location of the boundary between the Anderson Property and the Mill Property.
4. Defendant Eric Dutil is the principal and sole shareholder of GMF.
5. Defendants leased the Mill Property beginning in 2001. They purchased the Mill Property in 2003.
6. Plaintiff's father and stepmother acquired the Anderson Property on June 24, 1974.
7. Plaintiff acquired the Anderson Property from his father in 1994.
8. The boundary line between the Anderson Property and Mill Property was first created in a 1915 Deed executed at the time of the subdivision of the two parcels. The 1915 Deed was received in evidence as Plaintiff's Exhibit 1. The boundary is described in the deed as follows, (emphasis added by court):

   The so called John Williams house situated southerly of the Joe Blanchard blacksmith shop premises on westerly side of Main Street in vicinity of the so called Day Bridge of the Central Vermont Railroad in Bethel Village and land adjoining said house bounded as follows; Commencing at a point on said highway two feet south of our extension of the southerly end of said house, thence westerly running in a straight line parallel with southerly end of said house to a point where such line intersects the extension of westerly end of dwelling house of said Sophia and Eugene now occupied by them, thence northerly in a straight light at right angles to said first mentioned line to a point eighteen (18) feet from north-westerly corner of said Croissant dwelling, thence westerly at right angles to said last mentioned line to lands of said Central Vermont Railroad, thence northerly on boundary of said railroad land to blacksmith shop premises of said Blanchard, thence easterly on boundary of lands of said Blanchard to said highway, thence southerly on said highway to point of beginning.

9. The original boundary line between the Anderson Property and Mill Property as described in the 1915 deed was a "zig-zag," commencing at a point two-feet south of what later became the American Legion Building, then running westerly and parallel to the southerly end of the American Legion Building until intersecting with an extension of the northwest corner of the Anderson "dwelling house"; then turning ninety degrees and heading northerly to a point eighteen feet from the northwest corner of the Anderson house; then turning ninety degrees and heading westerly until intersecting with the property line between the railroad and the parties hereto. See Plaintiff's Exhibits 21-24.
10. The original boundary line between the Anderson Property and the Mill Property was located as depicted in the sketch of Kathleen Martin, LLS, on Plaintiff's Exhibits 21-24 as a yellow line and a yellow and red dashed line. In all four exhibits, it begins as a red and yellow dashed line near the sidewalk, below the orange chain labeled "Stone Wall from Lunna Survey." The boundary then continues westerly until it intersects with an extension of the northwest corner of the Anderson house, at which point it turns ninety degrees to the north and continues as a yellow line until it reaches a point just within the light blue, speckled rectangle labeled "Retaining Wall Large Concrete Blocks." From that point, it turns ninety degrees to the west, and continues westerly until it intersects with the railroad property line. The exclusively yellow portion of the original boundary line is labeled "1915 Subdivision Line Between Legion Prop & Anderson Prop."
11. On July 5, 1946, the boundary described in the 1915 Deed was modified by the then owners of the two parcels. Plaintiff's predecessors-in-interest, Halsie J. Kribstock and Lulu G. Kribstock, entered into an "Agreement to Change Boundary Line between Properties" (the "1946 Agreement") with Defendants' predecessor-in-interest, C. Stanley, Putnam, which provides, in relevant part, as follows, (emphasis added by court):

    This agreement made this 5th day of July A.D., 1946, by and between Halsie J. Kribstock and Lulu G. Kribstock, of the first part, and C. Stanley Putnam, of the second part, all of Bethel, in the county of Windsor and state of Vermont, Witnesseth: --
    Whereof these said parties are owners of adjoining premises situated near the underpass, so-called, at the junction of River and Main streets in Bethel village, situated on westerly side of said street, and whereas the building on said premises owned by C. Stanley Putnam passes closely to the northerly line of said Kribstock premises, so as to make the space between the two premises inconveniently narrow, it is now agreed as follows:

    When the building now standing on the premises of said C. Stanley Putnam is torn down or removed from its present situation, from that date the boundary line between the said premises of C. Stanley Putnam and said Halsie J. Kribstock and Lulu G. Kribstock premises shall run from a certain elm tree or post placed at base of elm tree at the foot of the bank leading to the Central Vermont Railway line, and thence running in a straight line to a certain iron post close to the sidewalk which runs past the premises owned by these parties.
    By this said agreement a small portion of the land owned by said C. Stanley Putnam becomes part of the premises owned by said Halsie J. Kribstock and Lulu G. Kribstock. Plaintiff's Exhibit 3.

12. The building owned by C. Stanley Putnam that is referenced in the 1946 Agreement later became an American Legion hall (the "American Legion Building").
13. The American Legion Building was torn down or removed by 1978.
14. The American Legion Building sat in a grassy upper parking portion of the area in dispute to the north of Plaintiff's driveway.
15. The American Legion Building was a small building that came right up to the sidewalk located on the easterly side of the Anderson and Mill properties along the public road.
16. Remnants of the American Legion Building foundation existed at the time of trial, approximately five feet to the north of Plaintiff's driveway, on the easterly side of the area in dispute. Plaintiff's Ex. 21-24; Defendants' Ex. H, Testimony of Kathleen Martin, Testimony of Richard Lunna.
17. Pursuant to the 1946 Agreement, when/if the American Legion Building was torn down, the boundary line between the Anderson Property and the Mill Property established in the 1915 Deed was to change. When the building was torn down the boundary line was to run in a straight line from "a certain elm tree or post placed at base of elm tree at the foot of the bank leading to the Central Vermont Railway line" to a "certain iron post close to the sidewalk," resulting in the conveyance of a small portion of land to Plaintiff's predecessor-in-interest. (Plaintiff's Ex. 3; Defendants' Ex. G; Richard Lunna, LLS, Direct Testimony, July 29, 2021, 4:30:40).
18. In 1978 Defendant Durfee hired Richard Lunna to survey the Mill Property.
19. Mr. Lunna completed his survey on September 21,1978. The survey was received in evidence as Plaintiff's Exhibit 5.
20. Lunna intended to locate the boundary line as it is described in the 1946 Agreement. However, he was not able to locate the "certain iron post close to the sidewalk which runs past the premises owned by these parties" that is referenced in the 1946 Agreement.
21. The "iron post close to the sidewalk" referenced in the 1946 Agreement was never located by the parties. At the time Lunna prepared his survey, he chose a spot based on his judgment concerning where the pin referenced in the 1946 Agreement was likely located in his opinion, and he placed a pin at his chosen spot. Lunna described the location of the boundary line, (as he determined it to be), to Plaintiff's father who was Plaintiff's predecessor in title. Plaintiff's father did not verbally agree, or disagree, with the boundary location as Luna described it. He simply observed where Lunna stated he believed the line was located.
22. The court finds that the boundary of record between the two properties is not located as depicted by Lunna on his survey. As stated above in our findings, the easterly boundary marker referenced in the 1946 agreement was never located making it necessary to determine the location from the intent of the parties in the 1946 agreement. The court finds that while perhaps well intentioned, Lunna's selection of the location of the boundary marker at the easterly edge of the properties was not consistent with the intent of the parties to the 1946 Agreement. Placement of the easterly boundary marker in the spot that Lunna selected would result in a new boundary line drawn from the Elm Tree on the westerly side of the parcels to the newly placed Luna pin that would have the effect of adding a small piece of property to the Anderson Property. However, placing the boundary as Lunna depicted would also have the effect of adding a small piece of property to the Mill Property. The court finds it was not the intent of the parties to the 1946 Agreement to add property to the Mill Property with the new boundary line. The plain language of the agreement provided that a small piece of property would be added to the Anderson Property, not to the Mill Property. There is no intent to also add property to the Mill property set forth in the plain language of the 1946 agreement.
23. While difficult to discern in the absence of the easterly boundary marker described in the 1946 Agreement, the court finds that the likely intent of the parties to the 1946 agreement was that the new boundary would be a straight line from the elm tree on the westerly side of the parcels, to a spot along the easterly side of the parcels, that would have the effect of adding a small amount of property to the Anderson Property, without adding any property to the Mill Property.
24. The stump of the elm tree referenced in the 1946 agreement was located by surveyors and the court finds that it is located as shown on Plaintiff's Exhibits 21-24. The elm tree stump identified marks the westerly boundary marker between the two lots according to the 1946 agreement.
25. The court therefore finds that the boundary line between the two parcels as described in the 1946 Agreement, (after the removal of the American legion building), was a straight line drawn from the elm tree stump on the westerly side of the parcels beginning along the yellow line on Plaintiff's Exhibit 22 and then extending that yellow line straight on the same course, (without turning to the south as shown on the exhibits), in a roughly easterly direction all the way to the edge of the roadway. Drawing the line in this fashion results in a small piece of property being added to the Anderson Property when compared to the original 1915 boundary line, and no property is added to the Mill Property. This was the likely intent of the parties to the 1946 agreement because it fulfills the goal of moving the boundary near the American Legion building to the north without taking property from the Anderson Property.
26. As stated in the 1946 agreement, the line established by the agreement was to change when what later became the American Legion building was removed and the change was to result in an addition to the Anderson Property. Our finding regarding the location of the boundary line according to the 1946 agreement after removal of the American Legion building is consistent with the language of the 1946 agreement in this regard.
27. Based on the plain language of the 1946 Agreement, the court finds that it was not the intent of the parties that the Mill Property would acquire property when the new boundary was established after the removal of the American Legion building. Our finding regarding the location of the boundary under the 1946 Agreement after the removal of the American Legion building does not result in the transfer of any property from the Anderson Property to the Mill Property. Given the zig-zag location of the boundary defined by the 1915 deed, and the plain language of the 1946 Agreement calling for a straight line from the Elm on the east, to the edge of the road on west side of the properties, the boundary as found by the court results in the transfer of the least amount of property from the Mill Property to the Anderson property possible, without also causing a transfer of property from the Anderson Property to the Mill property. The court finds this was the intent of the parties to the 1946 Agreement.
28. Also in dispute between the parties is a portion of the land located to the north of the boundary of record as found by the court herein shown on in our findings. This disputed area is roughly the area shown in photographs received in evidence as the edge of grass, trees and shrubbery which is depicted on Plaintiff's Exhibits 21-24 starting from the edge of the road on the eastly side of the lots, curving to the north through the footprint of the old Legion Hall, and then straight across toward the west side of the properties along the grass and tree line, turning very slightly to the south and terminating at the southerly corner of the concrete retaining wall shown just north of the elm tree stump and outlined in blue on Exhibits 21-24. Plaintiff claims title to this disputed area by adverse possession. Defendant claims record title to this disputed area, and Defendant claims title to this disputed area alternatively by adverse possession.
29. The court finds as facts all the facts stated in Paragraphs 43 – 119 of Plaintiff's Proposed Findings of Fact filed on November 4, 2021. These findings relate primarily, but not exclusively, to the use of the disputed property by the parties and their predecessors in title.
30. Plaintiff's and Plaintiff's predecessor's use of the property to the north of Plaintiff's home including the disputed area was not permissive. The use was hostile.
31. Prior to the Defendants installation of a retaining wall and paving project in 2014, the disputed area defined in our findings above was a small grassy, vegetated, moderately sloped piece of land located between Plaintiff's driveway, Defendants' grain mill loading area, the railroad, the public road bounding the two properties to the east. The Defendant's actions in 2014 substantially changed the character of the disputed area from a largely vegetated buffer between Plaintiff's home and the commercial mill operation, to an extension of the mill operation. The buffer was virtually eliminated by Defendants' actions.

Decision

Based on our findings of fact the court concludes that the location of the boundary between the two parcels as of the date of that the old American Legion building was torn down, (no later than 1978), was as described in our Finding of Fact #25. Essentially, the boundary of record as of the date the building was torn down was a straight line from the Elm Tree (now stump) on the westerly side of the parcels, (shown on the exhibits), to a point along the easterly edge of the parcels and the westerly edge of the public road. That point is described in our findings.

The court also concludes that considering the use of the area in dispute to the north of that line, (area described in our Finding of Fact #28), by the Plaintiff and the Plaintiff's predecessor in title, as described in detail in our Finding of Fact #29, Plaintiff acquired title to the area in dispute by adverse possession. Plaintiff's predecessor in title acquired record title to the undisputed portion of the property in 1974. He was shown the proposed "Lunna Line" by Mr. Lunna in 1978 but he did not accept the Lunna line as the boundary. Thereafter, he used all of his property to the north of his home, including the disputed area, as his own. He planted and maintained flowers in the disputed area, he mowed the disputed area including the grassy upper parking area. He set up chairs and a campfire in the disputed area that he used for outdoor recreation. When Plaintiff acquired the property from his predecessor in title in 1994, he continued all the uses that his predecessor carried on previously. Plaintiff, like his predecessor, openly treated all the property to the north of his home up to the boundary of the disputed area described in our findings as his own. He planted trees along the northwesterly edge of the disputed area described in our finding and show in the exhibits. The trees served as a natural boundary separating the Anderson Property from the Mill Property. The trees served to reduce the dust from the trucks traveling on the Mill Property that blew onto the Anderson Property. Plaintiff maintained flowers planted in the disputed area. Plaintiff and plaintiff's quests parked vehicles on the grassy upper portion of the disputed area. Plaintiff maintained a walkway from the northern boundary of the disputed area to his home. Plaintiff maintained a walkway from the disputed area to his home. Plaintiff shoveled show in the disputed area to create a path from the grassy upper parking area down to his home. Plaintiff caused a box elder tree in the disputed area to be cut down.

The use of the area north of the Plaintiff's home by Plaintiff and his predecessor in title as summarized here, including all of the disputed area to the northern boundary of the disputed area described in our findings, was open, notorious, exclusive, hostile to Defendants interest in the land, and continuous for the 15 year statutory time period required to acquire title by adverse possession. The use of the area by Plaintiff and his predecessor in title was such as to place Defendants, and Defendant's predecessors in title, on notice that Plaintiff claimed ownership of all the property to the north of his home up to the tree and grass line at the southern edge of the Mill Property. That line is shown clearly in the exhibits, and it is defined by the court in our Finding of Fact #28.

Accordingly, the court concludes that by 1989, Plaintiff had acquired title to all the disputed area defined in our findings of fact by adverse possession. 12 V.S.A. 501, Jarvis v. Gillespie, 155 Vt. 633 (1991), Parker v. Potter, 2014 VT 109, Roy v. Woodstock Cmty. Trust, Inc., 2013 VT 100A, ¶ 35, Fairdealing Apostolic Church, Inc. v. Casinger, 353 S.W.3d 396, 399 (Mo. Ct. App. 2011),

Also, consistent with our findings of fact, the court is not persuaded that Defendants or their predecessors in title used the property to the north of Plaintiff's home, including the disputed area defined in our findings of fact, in a manner which was open, notorious, hostile to Plaintiff's claim of right, or exclusive, for the 15 year statutory period. Accordingly, we conclude that Defendants did not carry their burden of proof to show that they acquired title to the property by adverse possession.

The court has found that the Defendants installed a retaining wall and carried out a paving project in 2014 on the disputed area which we have concluded was property owned by the Plaintiff. Previously the area was a small grassy, moderately sloped piece of land located between Plaintiff's driveway, Defendants' grain mill loading area, the railroad, and the public road bounding the two properties to the east. The Defendants' actions in 2014 damaged Plaintiff's land and substantially changed the character of the land from a largely vegetated buffer between Plaintiff's home and the commercial mill operation, to an extension of the mill operation. The buffer was virtually eliminated. Plaintiff objected to Defendants' conduct, but the Defendants proceeded over his objection. The Defendants had no privilege to enter Plaintiff's land. Their conduct constitutes trespass. Ondovchik Family Ltd. P'ship v. Agency of Transportation, 2010 VT 35, ¶10. Accordingly, Defendants are subject to liability to Plaintiff for damage caused by their trespass. Harris v. Carbonneau, 165 Vt. 433, 437 (1966).

In the amended complaint the ad damnum seeks an award of damages for the harm caused the Plaintiff's property by Defendants' trespass. However, there was no evidence offered or received regarding the cost of restoring the property. The court concludes that Plaintiff did not carry his burden of proof to show the dollar amount of any damages suffered by Plaintiff as a consequence of Defendants' trespass. To the extent Plaintiff requested a mandatory injunction directing the Defendants to restore Plaintiff's real property to its condition before the trespass, the request is denied. The court is not aware of authority supporting such a claim and the Plaintiff has not provided the court with citation to authority. The court concludes that money damages would be an adequate remedy at law and injunctive relief is therefore not available.

Plaintiff seeks punitive damages. The request for punitive damages is denied because the court does not find from the evidence that the Defendants' behavior was willful or taken in reckless disregard for the rights of the Plaintiff. The court concludes that the trespass was carried out by Defendants with the honest, but false, belief that Defendants owned the disputed property and that they had the legal right to take the actions they took.

The court will enter a separate judgment order declaring the boundary between the lands of Plaintiff and the lands of Defendants. The judgment will include an injunction prohibiting the Defendants from entering on the lands of Plaintiff. The judgment will not include an award of damages for the damage to the real estate caused by the trespass. The request for attorney fees is denied because the court is not aware of legal authority for such an award, and Plaintiff has not provided the court with legal authority on the issue. The request for punitive damages is denied. Judgment will be entered in favor of the Plaintiff on Defendants' counterclaims.

Dated at Woodstock, Vt, this 7^th day of September 2022.

EMINENT DOMAIN

In Vermont, eminent domain gives the towns or State agencies the power to take property for public use for just compensation. The most frequent taking is by the Agency of Transportation (AOT). Below is a summary of the taking process:

1. VOLUNTARY NEGOTIATIONS

1. The parties may voluntarily negotiate a price to give up the land. However, if voluntary negotiations prove futile, the State can begin to initiate proceedings for the acquisition of any property by having a precondemnation hearing.
2. As Stated below in 19 V.S.A. § 503(b), the Agency shall prepare a written offer of just compensation before initiating negotiations.

2. PRECONDEMNATION NECESSITY HEARING

a. 19 V.S.A. § 501(1)

"Necessity" means a reasonable need that considers the greatest public good and the least inconvenience and expense to the condemning party and to the property owner. Necessity shall not be measured merely by expense or convenience to the condemning party. Necessity includes a reasonable need for the highway project in general as well as a reasonable need to take a particular property and to take it to the extent proposed. In determining necessity, consideration shall be given to the:

(A) adequacy of other property and locations;
(B) quantity, kind, and extent of cultivated and agricultural land that may be taken or rendered unfit for use, immediately and over the long term, by the proposed taking;
(C) effect upon home and homestead rights and the convenience of the owner of the land;
(D) effect of the highway upon the scenic and recreational values of the highway;
(E) need to accommodate present and future utility installations within the highway corridor;
(F) need to mitigate the environmental impacts of highway construction; and
(G) effect upon town grand lists and revenues.

b. 19 V.S.A. § 502 Authority; precondemnation hearing

(c) Public hearing; notice of hearing.
(1) A public hearing shall be held for the purpose of receiving suggestions and recommendations from the public prior to the Agency's initiating proceedings under this chapter for the acquisition of any property. The hearing shall be conducted by the Agency.
(2) The Agency shall prepare an official notice stating the purpose for which the property is desired and generally describing the highway project.
(3) Not less than 30 days prior to the hearing, the Agency shall:
   (A) cause the official notice to be printed in a newspaper having general circulation in the area affected;
   (B) mail a copy of the notice to the legislative bodies of the municipalities affected; and
   (C) mail a copy of the notice to all known owners whose property may be taken as a result of the proposed improvement.
(4) At the hearing, the Agency shall set forth the reasons for the selection of the route intended and shall hear and consider all objections, suggestions for changes, and recommendations made by any person interested. Following the hearing, the Agency may proceed to lay out the highway and survey and acquire the land to be taken or affected in accordance with this chapter.

c. 19 V.S.A. § 503 Precondemnation necessity determination; survey and appraisal; offer of just compensation; notice of rights; negotiation; stipulation

(a) Necessity determination; appraisal.
(1) After conducting the hearing required under section 502 of this chapter and considering the objections, suggestions, and recommendations received from the public, if the Agency finds the taking of property to be necessary for the purpose of laying out, relocating, altering, constructing, reconstructing, maintaining, repairing, widening, grading, or improving a State highway, it shall cause the property proposed to be acquired or affected to be surveyed and shall make a written determination of necessity consistent with subdivision 501(1) of this chapter.
(3) The property owner or his or her designee shall be given an opportunity to accompany the appraiser during the appraiser's inspection of the property.

(b) Offer of just compensation. Prior to the initiation of negotiations, the Agency shall prepare a written offer of just compensation, which shall include a statement of the basis for the offer and a legal description of the property proposed to be acquired.

(c) Negotiation. Prior to instituting condemnation proceedings under section 504 of this chapter, the Agency shall make every reasonable effort to acquire property expeditiously by negotiation and shall comply with subsection (d) of this section.

(d) Notice and other documents. The Agency shall hand-deliver or send by mail to owners of property to be acquired a notice of procedures and rights and the offer of just compensation. The notice of procedures and rights shall include an explanation of the proposed State highway project and its purpose, and statements that:
(1) The Agency is seeking to acquire the property described in the offer of just compensation for the project.
(2) Agency representatives are available to discuss the offer of just compensation.
(3) The Agency does not represent the property owner, and he or she may benefit from the advice of an attorney.
(4) If the Agency and the property owner are unable to reach agreement on the Agency's legal right to take the property, the Agency may file a complaint in Superior Court to determine this issue. The property owner has the right to challenge the taking by contesting the necessity of the taking, the public purpose of the project, or both, but must contest these issues by filing an answer to the complaint with the court. If the owner does not file a timely answer, the court may enter a default judgment in favor of the Agency.
(5) The property owner may enter into an agreement with the Agency stipulating to the Agency's legal right to take his or her property without waiving the owner's right to contest the amount of the Agency's offer of compensation.
(6) If the Agency and the property owner agree that a taking is lawful, or if a court issues a judgment authorizing the Agency to take the owner's property, title to the property will transfer to the Agency only after the Agency files documentation of the agreement or judgment with the town clerk, pays or tenders payment to the owner, and sends or delivers to the owner a notice of taking.
(7) To contest the amount of compensation received, the owner must file an action with the Transportation Board or in Superior Court within 90 days of the notice of taking, except that the issue of compensation (damages) must be decided by the Superior Court if the owner's demand exceeds the Agency's offer of just compensation by more than $25,000.00. The owner or the Agency may appeal a decision of the Board to the Superior Court, and may appeal a decision of the Superior Court to the Supreme Court. Either party is entitled to demand a trial by jury in Superior Court on the issue of damages.
(8) A copy of an appraisal or an estimated valuation (waiver valuation) shall be furnished by the Agency at the owner's request.
(9) Summarize the property owner's right to relocation assistance, if applicable.

(e) Agreement on taking, damages.
(1) An interested person may enter into an agreement with the Agency stipulating to the necessity of the taking and the public purpose of the project, to damages, or to any of these. The agreement shall include:
   (A) a statement that the person executing the agreement has examined a survey or appraisal of the property to be taken;
   (B) an explanation of the legal and property rights affected;
   (C) a statement that the person has received the documents specified in subsection (d) of this section; and
   (D) if the agreement concerns only the issues of necessity or public purpose, a statement that the right of the person to object to the amount of compensation offered is not affected by the agreement.
(2) If an interested person executes an agreement stipulating to the necessity of the taking and the public purpose of the project in accordance with subdivision (1) of this subsection, the Agency shall prepare, within 10 business days of entering into the agreement, a notice of condemnation and shall file it in accordance with section 506 of this chapter. The notice of condemnation shall include a legal description of the property to be taken.

3. COMPLAINT, SERVICE, ANSWER

a. 19 V.S.A. § 504 Complaint; service; answer

a) Verified complaint. If a property owner has not entered into an agreement stipulating to the necessity of a taking and the public purpose of a highway project, and the Agency wishes to proceed with the taking, the Agency shall file a verified complaint in the Civil Division of the Superior Court in a county where the project is located seeking a judgment of condemnation. The complaint shall name as defendants each property owner who has not stipulated to a proposed taking, and shall include:
(1) Statements that the Agency has complied with subsection 503(d) of this chapter.
(2) The Agency's written determination of necessity.
(3) A general description of the negotiations undertaken.
(4) A survey of the proposed project, and legal descriptions of the property and of the interests in the property proposed to be taken. As used in this subdivision, "survey" means a plan, profile, or cross section of the proposed project. The survey and legal descriptions served upon the property owner only need to include the particular property or properties at issue.

(b) Service and notice.
(1) Except as otherwise provided in this section, the Agency shall serve the complaint and summons in accordance with the Vermont Rules of Civil Procedure and section 519 of this chapter.
(2) The Agency shall publish a notice of the complaint, the substance of the summons, and a description of the project and of the lands to be taken in a newspaper of general circulation in the municipalities where the project is located, once a week on the same day of the week for three consecutive weeks. The Agency shall mail a copy of the newspaper notice to the last known address of an interested person not otherwise served, if any address is known. Upon affidavit by the Secretary that diligent inquiry has been made to find all interested persons and, if applicable, that service on a known interested person cannot with due diligence be made in or outside the State by another method prescribed in Rule 4 of the Vermont Rules of Civil Procedure, the newspaper publication shall be deemed sufficient service on all unknown interested persons and all known interested persons who cannot otherwise be served. Service by newspaper publication is complete the day after the third publication.
(3) Unless otherwise served under subdivision (1) of this subsection, the Agency shall mail a copy of the complaint to the clerk, legislative body, and board of listers of each municipality in which land is proposed to be taken. The clerk with responsibility over the land records shall record the copy of the complaint (including the survey), and shall enter the names of the property owners named in the complaint in the general index of transactions affecting the title to real estate.

(c) Necessity, public purpose; default. If an interested person does not file a timely answer denying the necessity of a taking or the public purpose of the project, the court may enter a judgment of condemnation by default.

4. APPEAL OF THE NECESSITY HEARING

a. 19 V.S.A. § 505 Hearing on proposed taking; judgment; appeal and stay

(a) Hearing.
(1) If a timely answer is filed denying the necessity of a taking or the public purpose of the project, the court shall schedule a final hearing to determine the contested issues, which shall be held within 90 days of expiration of the deadline for filing an answer by the last interested person served. Absent good cause shown, the final hearing date shall not be postponed beyond the 90-day period.
(2) At the hearing, the Agency shall present evidence on any contested issue.
(3)
   (A) The court shall presume that the Agency's determination of the necessity for and public purpose of a project is correct, unless a party demonstrates bad faith or abuse of discretion on the part of the Agency.
   (B) The court shall review de novo the Agency's determination of the need to take a particular property and to take it to the extent proposed.

(b) Discovery. Absent a showing of unfair prejudice, the right to discovery on the issues of necessity and public purpose shall be limited to the plans, surveys, studies, reports, data, decisions, and analyses relating to approving and designing the highway project.

(c) Judgment. If the court finds a proposed taking lawful, it shall issue a judgment of condemnation describing the property authorized to be taken, declaring the right of the Agency to take the property by eminent domain, and declaring that title to the property will be transferred to the Agency after the Agency, in accordance with section 506 of this chapter, has recorded the judgment, tendered or deposited payment, and notified the owner of the recording and payment. The court may in its judgment modify the extent of a proposed taking.

(d) Litigation expenses.
(1) If the court finds a proposed taking to be unlawful, or if the Agency abandons the condemnation proceeding other than under a settlement, the court shall dismiss the complaint and award the property owner his or her costs and reasonable litigation expenses, including reasonable attorney, appraisal, and engineering fees actually incurred because of the proceeding.
(2) If the court issues a judgment of condemnation that substantially reduces the scope of the Agency's proposed taking, the court shall award the property owner a share of his or her costs and reasonable litigation expenses that is proportional to the reduction in the proposed taking.

(e) Appeal, stay. A judgment of condemnation may be appealed or stayed as a final judgment for possession of real estate under the Vermont Rules of Civil Procedure and the Vermont Rules of Appellate Procedure. A judgment that the Agency cannot acquire the property by condemnation likewise may be appealed.

5. COMPENSATION / COMPENSATION HEARING

a. 19 V.S.A. § 506 Recording of judgment or notice of condemnation; payment; vesting of title

(a)
(1) Within 15 business days of the issuance of a judgment of condemnation by the court or of the preparation of a notice of condemnation by the Agency in accordance with subdivision 503(e)(2) of this chapter, the Agency shall:
   (A) record the judgment or notice, including the description of the property taken, in the office of the clerk of the town where the land is situated; and
   (B) tender to the property owner, or deposit with the court, the amount of the offer of just compensation prepared under subsection 503(b) of this chapter or any other amount agreed to by the owner.
(2) For the purposes of this chapter, if an interested person has not provided the Agency identification information necessary to process payment, or if an interested person refuses an offer of payment, payment shall be deemed to be tendered when the Agency makes payment into an escrow account that is accessible by the interested person upon his or her providing any necessary identification information.

(b) Title in the property shall vest in the State, and the Agency may proceed with the project, upon the later of:
(1) the Agency's complying with the requirements of subsection (a) of this section; and
(2) the Agency's mailing or delivering to the owner a notice of taking stating that it has complied with the requirements of subsection (a) of this section.

(c) Except in the case of agreed compensation, an owner's acceptance and use of a payment under this section does not affect his or her right to contest or appeal damages under sections 511-513 of this chapter but shall bar the owner's right to contest necessity and public purpose.

(d) Upon the Agency's recording of the judgment or notice of condemnation, the clerk with responsibility over land records shall enter the name of each property owner named in the judgment or notice as a grantor in the general index of transactions affecting the title to real estate. The Agency shall comply with the provisions of 27 V.S.A. chapter 17 governing the composition and recording of project layout plats.

b. 19 V.S.A. § 511 Determination of damages

(a) Disputes between a property owner and the Agency on the amount of compensation to be paid as a result of a taking shall be resolved as follows:
(1) If the owner's demand exceeds the Agency's offer of just compensation by $25,000.00 or less, the owner may obtain a determination of damages by either:
   (A) petitioning the Transportation Board; or
   (B) filing a complaint or, if applicable, a motion to reopen a judgment of condemnation, in Superior Court.
(2) If the owner's demand exceeds the Agency's offer of just compensation by more than $25,000.00, the owner may obtain a determination of damages by filing a complaint or, if applicable, a motion to reopen a judgment of condemnation, in Superior Court.
(3) A property owner may file a petition, complaint, or motion under subdivision (1) or (2) of this subsection not later than 90 days after the date of the notice of taking required under subsection 506(b) of this chapter.
(4) A petition improperly filed with the Board shall be transferred to the Superior Court and, upon such transfer, the owner shall be responsible for applicable court filing fees.

(b) The Board or the court shall appoint a time and place in a county where the land is situated for a hearing, giving the parties at least 10 days' written notice of the hearing. If the property taken extends into two or more counties, the Board or court may hold a single hearing in one of the counties to determine damages. In fixing the place for the hearing, the Board or court shall consider the needs of the parties.
(c) Unless the parties otherwise agree or unless the Board or the court determines that it is in the public interest to proceed on the question of damages, any proceedings to determine damages shall be stayed pending the final disposition of any appeal of the questions of necessity or public purpose.
(d) Upon demand, a party is entitled to a jury trial in Superior Court on the issue of damages.
(e) The Board or the court shall first determine the total damages as between the Agency and all interested persons claiming an interest in a subject property, and the Agency may thereafter withdraw from further proceedings with respect to that property. The Board or the court shall then determine any further questions in the matter, including the apportionment of damages among interested persons. Any Board decision on damages shall include findings of fact, and shall be served on the parties immediately after its issuance.

c. 19 V.S.A. § 501(2)

Damages resulting from the taking or use of property under the provisions of this chapter shall be the value for the most reasonable use of the property or right in the property, and of the business on the property, and the direct and proximate decrease in the value of the remaining property or right in the property and the business on the property. The added value, if any, to the remaining property or right in the property which accrues directly to the owner of the property as a result of the taking or use, as distinguished from the general public benefit, shall be considered in the determination of damages.

d. Vermont Agency of Transportation 2019 Right of Way Manual 6-114

Compensation Hearing

• Under 19 V.S.A. § 511 and following an order of necessity from the Superior Court, the property owner, or any other person having a legal and compensable interest in the property to be acquired and who is unable to agree on the amount of compensation to be paid, is entitled to a hearing by the T-Board. A ten-day notice in writing of the hearing must be given.
• When agreement cannot be reached with certain owners on a project, the Chief of Acquisition or his/her authorized agent, will contact the Executive Secretary of the T-Board to arrange a date for the compensation hearing. Once the date is established, the Chief of Acquisition will make arrangements for a suitable location for the hearing which must be held in the county where the land is located. If the project is located in more than one town only one hearing is necessary if the towns are in the same county; otherwise a hearing will be needed for each county affected… The Acquisition Unit will then prepare a hearing notice memo and forward it for distribution to those concerned.

c. Before and After Rule

In eminent domain valuation, a procedure in which just compensation is measured as the difference between the value of the entire property before the taking and the value of the remainder after the taking. Vermont Agency of Transportation 2019 Right of Way Manual 3-48.

d. Vermont Agency of Transportation 2019 Right of Way Manual

Damages (Severance Damages): In condemnation, the loss in value to the remainder in a partial taking of property. Generally, the difference between the value of the whole property before the taking and the value of the remainder after the taking is the measure of the value of the part taken and the damages to the remainder.

e. Settlement Procedures; Counteroffers

• Counteroffers: If the owner does not agree with the approved offer, the Negotiator will ask for the owner's estimate of value and any support for it. If this increase in value estimate is moderate and support is provided, the Negotiator will, after further persuasion fails, inform the owner that his offer to settle will be entered in the records and will be informed if the VAOT accepts this counteroffer prior to the compensation hearing. If the owner's offer to settle is excessive, inform him/her that the State has no interest in such a settlement at that amount. Vermont Agency of Transportation 2019 Right of Way Manual 6-116.

6. APPEAL OF COMPENSATION

a. 19 V.S.A. § 513 Appeal of damages decision; jury trial

(a) A party dissatisfied with a decision of the Transportation Board as to the amount or apportionment of damages awarded may appeal to a Superior Court where the land is situated within 30 days after the date of the decision, and any number of persons aggrieved may join in the appeal.
(b) A party appealing the award of the Board is entitled to a jury trial in the Superior Court upon demand.
(c) A party aggrieved by a Superior Court decision on damages under this section or section 511 of this chapter may appeal to the Supreme Court in accordance with the Vermont Rules of Appellate Procedure.

b. 19 V.S.A. § 514 Award of costs in damages action; litigation expenses in inverse condemnation action

(a) If a damages award by a court is more than the Agency's offer of just compensation or offer of judgment, whichever is greater, the court shall award the property owner his or her reasonable costs. If the damages award is less than or equal to the greater of the Agency's offer of just compensation or offer of judgment, the court shall award the Agency its reasonable costs.
(b) If a court renders judgment in favor of a property owner in an inverse condemnation action or if the Agency effects a settlement of an inverse condemnation action, the court shall award the owner his or her reasonable costs and other litigation expenses, including reasonable attorney's, appraisal, and engineering fees actually incurred because of the proceeding.

References

https://vtrans.vermont.gov/sites/aot/files/highway/documents/rightofway/VTrans%20ROW%20Manual%202019.pdf

https://publicservice.vermont.gov/sites/dps/files/documents/Info_Consumers/Landowner_Assistance/Eminent%20Domain%20Fact%20Sheet.pdf

7. Recent Case Law

Attached are recent takings cases issued by Superior Court and Vermont Supreme Court.

Agency of Transportation v. Timberlake Assoc., LLC, 2024 VT 83 (attached). In this case, the landowner appealed the trial court's determination of necessity for taking of land in connection with a highway reconstruction project. The Vermont Supreme Court affirmed the trial court's decision and found necessity.

Mongeon Bay Properties, LLC v. Town of Colchester, Docket No. 22-CV-00510 (Hon. S. Hoar, March 25, 2025) (attached). While this case is currently on appeal, it is interesting in that the trial court found that the town did not prove necessity. The case involves a condemnation proceeding for a stormwater treatment facility. In a very strongly worded decision, the judge denied the Town's petition.

Gerlach v. Town of Chittenden, Docket No. 23-CV-00499 (Hon. A. Burke, May 5, 2025) (attached). This case is on appeal to the Vermont Supreme Court but is an interesting case involving a legal trail in the Town of Chittenden. The judgment found dedication and acceptance and ruled that the landowners' property was subject to a Town road.

Doran v. Town of West Haven, Docket No. 21-CV-00221 (Hon. A. Burke, September 4, 2024). This case involved two roads in the Town of West Haven. The Town stopped maintaining the road because two property owners alleged the roads were not Town roads. Doran filed suit against the Town seeking a declaration that the roads were Town roads as well as a secondary injunction to force the Town to maintain the road and to stop other defendants from blocking the road. Judge Burke found that the roads were laid out, dedicated and accepted. After this decision, a jury trial was commenced to locate the Upper River Road and to determine damages. On the first day of trial the parties settled. A Judgment was recorded in the land records stating the roads are Town roads, that the Town will maintain them as such and the abutting property owners will not interfere with the Town's maintenance.

Agency of Transportation v. Timberlake Associates, LLC

Supreme Court of Vermont
December 13, 2024, Filed
No. 22-AP-078

Reporter

2024 VT 83 *; 331 A.3d 1070 **; 2024 Vt. LEXIS 90 ***; 2024 LX 32523

Agency of Transportation v. Timberlake Associates, LLC et al. (R.L. Vallee, Inc. & Crystal Clear Hospitality, LLC)

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.

Prior History: [***1] On Appeal from Superior Court, Chittenden Unit, Civil Division. Samuel Hoar, Jr., J.

Vt. Agency of Transp. v. Timberlake Assocs., LLC, 2023 Vt. Super. LEXIS 8 (Vt. Super. Ct., Feb. 13, 2023)

Disposition: Affirmed.

Counsel: Charity R. Clark, Attorney General, and Mark Seltzer, Assistant Attorney General, Montpelier, for Plaintiff-Appellee.

Pietro J. Lynn and Sean M. Toohey of Lynn, Lynn, Blackman & Toohey, P.C., Burlington, for Defendant-Appellant Timberlake Associates.

Liam L. Murphy of MSK Attorneys, for Appellant Crystal Clear Hospitality, and Alexander J. LaRosa of MSK Attorneys, Burlington, for Defendant-Appellant R.L. Vallee, Inc.

Judges: Present: Reiber, C.J., Eaton, Carroll, Cohen and Waples, JJ.

Opinion by: CARROLL

Opinion

[*P1] [**1072] Carroll, J. Landowner Timberlake Associates, LLC¹ appeals the trial court's determination of necessity for takings of land by the Vermont Agency of Transportation (AOT) in connection with a highway reconstruction project. Landowner argues the trial court erred in its determination of necessity and AOT failed to fulfill its pre-suit obligation to negotiate pursuant to 19 V.S.A. § 503(c). We conclude the court acted within its discretion in making its determination of necessity and that AOT satisfied its pre-suit obligation to negotiate with landowner, and thus affirm the decision below.

[*P2] This appeal concerns AOT's proposed project to reconstruct [***2] the interchange between Interstate 89 and U.S. Routes 2 and 7 in Colchester, Vermont into a proposed Diverging Diamond Interchange (DDI). Landowner owns a gas station located on the southeast corner of the interchange. The proposed project will rotate the northern driveway of landowner's parcel to accommodate the limited-access ramps to the highway and install a sidewalk along the edge of the parcel.

[*P3] In 2019, AOT filed a complaint in the superior court seeking a determination of necessity for the proposed project. See 19 V.S.A. § 504(a) (outlining procedures when "property owner has not entered into an agreement stipulating to the necessity of a taking"). After a four-day evidentiary hearing in April and June 2021, the trial court issued a written decision in February 2022 concluding landowner failed to demonstrate bad faith or abuse of discretion by AOT and that AOT satisfied its burden of demonstrating the necessity of taking landowner's property to the extent proposed. This appeal followed.

[*P4] The Court placed the appeal on waiting status pending our decision in Agency of Transportation v. Timberlake Associates, LLC. See 2024 VT 14, ¶ 20, 2024 Vt. LEXIS 15, *15 (holding appellants Vallee and CCH were barred from contesting the necessity [***3] and public purpose of the project because they accepted and used payment from AOT, pursuant to 19 V.S.A. § 506(c)). Following the issuance of that decision, which resolved Vallee's and CCH's arguments in this appeal, we removed this appeal from waiting status.²

[*P5] [1] We first consider landowner's claim that the court erred in finding necessity for the proposed takings here. "A finding of necessity for condemnation is a question of fact determined exclusively by the trial court." [**1073] In re S. Burlington-Shelburne Highway Project, 174 Vt. 604, 606, 817 A.2d 49, 52 (2002) (mem.). The trial court "presume[s] that [AOT's] determination of the necessity for and public purpose of a project is correct, unless a party demonstrates bad faith or abuse of discretion" by AOT. 19 V.S.A. § 505(a)(3)(A). The trial court reviews de novo AOT's "determination of the need to take a particular property and to take it to the extent proposed." Id. § 505(a)(3)(B). On appeal, we must accept the trial court's findings on necessity if they "are supported by any competent evidence." S. Burlington-Shelburne Highway Project, 174 Vt. at 606, 817 A.2d at 52 (quotation omitted). The statute gives AOT "broad discretion, in determining what land it deems necessary for the particular location and route to be followed and we will not interfere with that determination as long as it is made in good faith and is not capricious." Agency of Transp. v. Wall Mgmt., 144 Vt. 640, 643, 481 A.2d 1270, 1272 (1984) (alteration [***4] and quotation omitted) (citation omitted).

[*P6] [2] Necessity refers to both the "reasonable need for the highway project in general" and the "need to take a particular property and to take it to the extent proposed." 19 V.S.A. § 501(1). "Necessity" is defined as "a reasonable need that considers the greatest public good and the least inconvenience and expense to the condemning party and to the property owner" but is not "measured merely by expense or convenience to the condemning party." Id. We have recognized "the term 'necessity,' as used in the statute, does not mean an absolute or imperative necessity but only that the taking be reasonably necessary to the accomplishment of the end in view under the particular circumstances." Wall Mgmt., 144 Vt. at 643, 481 A.2d at 1272 (quotation omitted). The Legislature has directed that "[i]n determining necessity, consideration shall be given to" seven factors: (1) "adequacy of other property and locations"; (2) "quantity, kind, and extent of cultivated and agricultural land that may be taken or rendered unfit for use"; (3) "effect upon home and homestead rights and the convenience of the owner of the land"; (4) "effect of the highway upon the scenic and recreational values of the highway"; (5) "need to accommodate [***5] present and future utility installations"; (6) "need to mitigate the environmental impacts"; and (7) "effect upon town grand lists and revenues." 19 V.S.A. § 501(1).

[*P7] [3] Landowner argues AOT failed to present evidence showing it considered the necessity factors set forth in 19 V.S.A. § 501(1). Landowner's argument is belied by the record, which amply supports the trial court's conclusion that AOT satisfied its burden by presenting "unrebutted evidence that demonstrated that [AOT] amply and properly considered all of the statutory factors."

[*P8] Over the course of the four-day evidentiary hearing, AOT presented evidence on each of the statutory factors to the extent applicable.³ AOT presented evidence that it considered the "adequacy of other property and locations." Id. § 501(1)(A). The trial court reviewed AOT's commissioned scoping study, which evaluated alternative project designs, and the project manager testified AOT selected the DDI design because it outperformed the other options. AOT also presented evidence that it considered the project's effect on convenience to landowner. AOT's project manager testified the original plans for the DDI design were modified to minimize [**1074] impacts to landowner's gas station, particularly access to [***6] the gas pumps, while also optimizing traffic flow. The court also heard testimony as to the effect of the scenic and recreational values of the highway through testimony by the project manager about landscaping improvements, updating old signage, pedestrian and cyclist access to the interchange, and updating the current lighting systems. AOT's project manager also testified that AOT considered the environmental impacts of the project, including permitting and stormwater management. In addition, the scoping study discussed relevant and necessary permitting and maintenance. Finally, the right-of-way-appraisal chief testified that the project would have minimal effect on the town's grand list. Accordingly, competent evidence supports the trial court's conclusion that AOT considered the statutory factors, which in turn supports AOT's determination of necessity. See Wall Mgmt., 144 Vt. at 645, 481 A.2d at 1273 (affirming necessity determination because defendant failed to "point to any evidence that contravenes the State's evidence" but rather "disagree[d] with the evidence presented").

[*P9] Landowner argues the trial court erred because it focused "only on the necessity of the improvements to [the interchange] rather than the necessity [***7] of the taking[]" of the particular property. Landowner does not dispute the necessity of the improvements to the interchange, but challenges AOT's decision to select the DDI design over alternative proposals. Specifically, landowner argues the trial court failed to weigh the adequacy of the conventional alternative design.

[*P10] [4] Nothing in the statute requires the trial court, in place of AOT, to review all the alternative options to the proposed project and choose the best one. See 19 V.S.A. § 505(a). Here, the trial court reviewed AOT's determination of necessity and concluded the taking related to landowner's parcel was necessary to maintain the safety features of the DDI design, while also addressing concerns raised by landowner. The court found the takings as related to landowner's parcel were unavoidable because they were necessary "to accommodate the proposed pedestrian facilities" as well as "the angle of U.S. Routes 2/7's northbound approach to the DDI." The trial court found AOT settled on the DDI design after studying alternative designs because the DDI design outperformed the other options. The court acknowledged landowner's concern that the realignment of the driveway would make exiting the gas [***8] station more difficult for large trucks and thus negatively impact landowner's business. However, the trial court found AOT minimized these impacts by "selecting the least-invasive approach angle" that maintained the safety features of the DDI design while still allowing large trucks to maneuver to the fuel pumps and exit the gas station.

[*P11] The record supports the trial court's conclusion. See Wall Mgmt., 144 Vt. at 645, 481 A.2d at 1273 (concluding "the court's finding must stand as it was not clearly erroneous and without factual support" (quotation omitted)). The record shows AOT selected the DDI design because it would perform substantially better than the other alternatives by increasing capacity, reducing congestion, and improving safety. The court heard testimony from the project manager that the DDI design "was most efficient for traffic movement compared to other alternatives." Vallee's expert also testified that the DDI design was "the safer operation." Further, AOT altered its design to address landowner's concerns. See id. at 643, 481 A.2d at 1272 (recognizing "proposed project was … an alternative design to one originally proposed" [**1075] demonstrating considerations of adequate alternatives by AOT).

[*P12] Landowner asserts AOT presented only conclusory [***9] evidence as to why AOT selected the DDI design over other alternatives. Specifically, landowner points to the project manager's testimony that he did not recall whether another alternative in the scoping study met the purpose of the project, stating, all he cares "about is what the preferred alternative was." Landowner argues that "[s]uch 'say so' testimony is insufficient as a matter of law to establish necessity for taking private property," citing to Borough of Glassboro v. Grossman, 457 N.J. Super. 416, 200 A.3d 419 (N.J. Super. Ct. App. Div. 2019). Grossman is inapposite, however, because it involved a proposed taking of land that might potentially be necessary for some possible future redevelopment project, as opposed to a particular project serving a particular purpose. Id. at 430. That is not the case here. As discussed above, AOT presented sufficient evidence to support its determination that the DDI design was the preferred alternative for making the improvements necessary for the interchange.

[*P13] [5, 6] Finally, landowner argues AOT failed to comply with the statutory mandate to negotiate prior to filing suit and that the trial court's determination of necessity failed to address this argument. Before commencing [***10] condemnation proceedings under 19 V.S.A. § 504, AOT is required to "make every reasonable effort to acquire property expeditiously by negotiation" after "prepar[ing] a written offer of just compensation." 19 V.S.A. § 503(b)-(c). Landowner argues AOT failed to engage in reasonable negotiations with landowner because after making an offer of just compensation that landowner rejected, no one from AOT contacted landowner to engage in further negotiations. The trial court did not specifically address AOT's negotiation efforts with respect to landowner.⁴ However, landowner has failed to demonstrate that this is grounds for reversal. The statute does not require AOT to exhaust every possible option or to successfully negotiate with landowner; rather, it only requires AOT to make a reasonable effort to purchase the property expeditiously before commencing suit. Here, AOT mailed an offer package to landowner. See id. § 503(b). Landowner's agent testified that in his opinion AOT "offered us a real low ball … laughable type offer." AOT's right-of-way manager testified that from conversations with the parties, the parties did not agree on the value of the property. It is evident from the record that further negotiations would be futile. Under these circumstances, landowner has failed to demonstrate an abuse of discretion that would [***11] justify reversing the determination of necessity.

Affirmed.

End of Document

FINDINGS, CONCLUSION, AND ORDER

Plaintiff, Mongeon Bay Properties, LLC ("Mongeon"), brought this action challenging the Town of Colchester's decision to take property "for the purpose of constructing, maintaining, operating, and repairing a stormwater treatment facility to replace an existing 24" stormwater outflow located at 885 East Lakeshore Drive." Trial occurred on two days in October 2024. After trial, the court invited and the parties filed post-trial submissions. Having reviewed those submissions, the court makes the following findings and conclusions, all by a preponderance of the credible evidence, and issues the order that follows from the conclusions.

FINDINGS

A. Procedural Background

By memorandum submitted to the Colchester Selectboard on August 19, 2021,¹ the Colchester Town Manager recommended the initiation of condemnation proceedings for the property located at 885 East Lakeshore Drive ("the Property"). On August 24, 2021, the Town of Colchester initiated those proceedings. The Town held its hearing on November 9, 2021, and issued its proposed decision on January 7, 2022. As noted above, Mongeon then filed suit challenging the decision. The Town subsequently filed a Petition for Hearing to Determine Necessity and by agreement, the parties proceeded to trial on that Petition.

B. Factual Background

The property at issue in this case is a part of a larger, unsubdivided parcel owned by Mongeon on the north side of East Lakeshore Drive in the Town of Colchester, Vermont. The Property sits roughly in the middle of the larger parcel. It is improved with a residential camp structure identified as 885 East Lakeshore Drive; that is one of several residential camp structures on the larger parcel.

Mongeon owns the Property; it currently uses it as a rental. The Property is burdened by an easement in favor of the Town that dates back to 1979. That easement allows the Town to place and maintain a stormwater drainpipe and catch basin on the Property; the Town has done so for an indeterminate period of time, dating back to sometime before 1994, when the Town undertook extensive work at the Property to install a seawall and associated infrastructure in an effort to protect the stormwater outfall pipe. The deed creating the easement also obligates the Town to indemnify Mongeon from any loss, damage, or expense arising out of the exercise of those rights.²

On October 31, 2019, a rainstorm caused the stormwater drainpipe at the Property to rupture, resulting in significant washout at the Property and undermining the camp structure. Subsequent investigation revealed that the Town's outflow pipe had failed due to corrosion and deterioration, in turn a result of lack of maintenance. The Town refused to accept responsibility for this event and its consequences, causing Mongeon to retain counsel to assert its rights. Ultimately, the Town's intransigence necessitated Mongeon's filing suit in federal court, eventually securing what the Town's Director of Public Works characterized as a "substantial sum of money" in settlement.

Coincidentally, Mongeon's filing of the federal lawsuit was followed closely by the Town's initiation of condemnation proceedings. Or perhaps there was no coincidence. Prior to the 2019 drainpipe rupture at the Property, in November 2017 the Town had undertaken the Malletts Bay Stormwater Management System & Transportation Scoping Study, a comprehensive review of stormwater treatment options around Malletts Bay. The study identified 49 sites at which the Town could install stormwater treatment. Conspicuously absent from this list was the Property. Then, in 2020, the Town prepared (and later submitted to the State) its Phosphorus Control Plan. That plan lists the 34 most promising phosphorus removal projects known to the Town as of the date of the plan (December 9, 2020), based on the size of those possible projects and their estimated cost effectiveness. Again, conspicuously absent from the plan is any mention of the Property. Notably, however, the plan proposes phosphorus treatment in the MB-09 watershed—which the Town now proposes to treat by means of the project for which this taking is intended—using infiltrative treatment methods with 90% phosphorus removal efficiency. (Further along, the reader will learn that the Town now eschews infiltrative treatment methods for this watershed, based on no analysis, and using a technology that promises at best 70-75% phosphorus removal efficiency.)

What happened between the Town's March 2021 submission of the 2020 Phosphorus Control Plan to the State and the Selectboard's August 2021 vote to initiate condemnation proceedings? During this timeframe, the Town did not undertake any additional studies or engage any experts to determine whether the Property was a suitable location for stormwater treatment. It received no recommendation from any outside source. Indeed, while its Director of Public Works testified that his decision to recommend condemnation to the Selectboard was based on analysis by his professional staff, his inability to articulate the particulars of that analysis, coupled with the Town's failure to introduce any other evidence of such analysis, make his testimony in this regard difficult to credit. Rather, the credible evidence establishes that the Town undertook no careful analysis of either the costs or anticipated benefits of stormwater treatment at the Property—much less a comparison of those costs and benefits with those associated with other treatment options. Indeed, the Town's January 7, 2022 Proposed Decision and Order on Necessity and Damages, which is the foundation on which this case rests (Exhibit 2 to the Complaint), includes not a single word reflecting consideration of alternatives or the relative costs and benefits of stormwater treatment at the Property.

What appears to have happened is that after the October 2019 failure of the stormwater outflow, attorneys got involved. In August 2020, counsel for Mongeon reached out to counsel for the Town to discuss solutions. During subsequent conversations, counsel for the Town conveyed that the Town was not happy with Mongeon because of a recent case resulting in eviction of a number of lessees along East Lakeshore Drive, including one of counsel's friends. In a later conversation, counsel for the Town threatened that Mongeon could either sell the Property to the Town, or the Town would take it. Notably, these communications occurred after the Town's Director of Public Works now claims to have become interested in taking the Property. Yet in none of these communications did anyone on behalf of the Town make any mention of a concern for treatment of stormwater or suggest any reason for taking the Property other than to limit liability under the easement. Rather, it was clear from these communications that the only reason the Town wanted to acquire the Property was to resolve Mongeon's claims for property damage arising out of the prior year's outflow pipe failure.

Back and forth between the parties continued through the end of 2020, and while the Town undertook repairs to the stormwater outflow pipe and filled in eroded soils, that did not fully address Mongeon's claims. Mongeon therefore threatened suit. At a meeting at which at least counsel for the Town, the Town's Director of Public Works, and Mongeon's principal were present, counsel for the Town stated, "if you sue the Town we will take your house by eminent domain."³ Subsequently, Mongeon filed suit in federal court. Within a couple of weeks, the Town initiated the condemnation process.

C. The Project

The Project for which the Town seeks condemnation is the demolition of the camp structure at the Property and construction of a treatment facility, to remove solids, grit, and contaminants—principally phosphorus—from stormwater before its discharge into the lake. The selection of neither site nor treatment methodology was the result of a careful consideration of alternatives. Rather, the Town's Director of Public Works asked an engineer who was familiar with the Property, "we're interested in doing stormwater treatment at [the Property], can you give me a plan?" The choice of treatment technology then followed not the Town's own phosphorus control plan or best engineering design practices, both of which called for infiltrative rather than end-of-pipeline treatment; instead, it was driven by the choice of site. Not until much later—in fact, after the Town had made its condemnation decision—did the Town ask the engineer to evaluate any other sites for phosphorus treatment in the MB-09 watershed—and even then, the request was only to do a comparative analysis of the costs and benefits of installing the same, end-of-pipe solution at a different location along East Lakeshore Drive.

The Town presented no credible evidence as to the benefits of the Project as compared with its costs. It offered a rough estimate of costs, including land acquisition, totaling $1.603 million. Notably, that estimate was not developed until after the Town had voted to take the Property. The Town presented no competent evidence, however, as to the benefit—the amount of phosphorus removed. Its now-former Director of Public Works testified that it was his projection that the Project would remove 9.7 pounds of phosphorus per year. This witness, however, plainly lacked qualifications to offer any opinion in this regard. The estimate was also based on an outdated methodology for estimating phosphorus base loads in watersheds and an inflated, back-of-the envelope estimate of the amount of stormwater runoff in the MB-09 watershed that would flow through the Project. Finally, in projecting the percentage of the total phosphorus load that the Project would remove from the stormwater that flowed through the Project (70-75%, as contrasted with the 90% that would be removed by the infiltrative technology the Town's prior studies had recommended), the witness relied not on an engineering analysis, but the prediction of the manufacturer of some of the components of the Project. Applying the correct methodology to determine the total phosphorus load of the stormwater that would flow through the project, substituting engineering analysis of the watershed to determine the volume of stormwater that would actually flow through the Project, and using the same (questionable) percentage of phosphorus removed, the projection shrinks by over two-thirds, to 3.29 pounds of phosphorus removed per year. With the Town's estimated project cost of $1,603,000, this means the Project would cost $485,757.58 per pound of phosphorus removed per year.

As noted above, before deciding to condemn the Property, the Town did not consider any other treatment locations; instead, it focused exclusively on the Property. That focus, in turn, precluded the Town's consideration of any other treatment methodologies. It is clear, however, that there are better locations, and treatment methodologies that not only better conform to best engineering practices but yield demonstrably better results at far lower cost. By way of example only, Mongeon's expert witness presented a detailed plan for a subsurface infiltration treatment system at another property owned by Mongeon. That system would treat not only more of the MB-09 watershed than the Project but all of the MB-08 watershed, completely neglected by the Project. The system would remove 9.6 pounds of phosphorus per year—more than 7 pounds per year from the MB-09 watershed served by the Project, plus more than 2.5 pounds from the MB-08 watershed. And the construction costs of this system would be less than half those of the Project. Assuming similar land acquisition costs, the system would cost $50,655.30 per pound of phosphorus removed per year.

Moreover, the location identified by Mongeon's expert for her alternative system design is preferable to the Property for a variety of reasons. The location would have no new impact to the lakefront, does not impact steep slopes, is not located directly between existing buildings, provides easy access for maintenance, eliminates the need for filter media disposal and replacement, provides peak flow reduction of the 1, 10, and 100-year 24-hour rain events, and avoids the cost associated with the purchase and demolition of an existing house. And the infiltrative treatment system would require lower ongoing maintenance expenses than the Project. In short, the alternative design provides far greater benefit to the taxpayer than the Project, by any measure. It does so at a fraction of the Project's cost. And evidently, based on Mongeon's embrace of this design, it does so at lesser inconvenience and expense to Mongeon.⁴

The only concern that this or any other alternative stormwater treatment solution does not address, vis-à-vis the Project, is the Town's potential liability attached to operation and maintenance of the existing stormwater outflow at the Property. The Town offered no evidence, however, from which the court could do more than speculate as to the likelihood of any such liability coming home to roost, or if it does, the amount of exposure. Rather, the evidence makes clear that there has been one claim against the Town since the easement was granted in 1979. Moreover, there is strong evidence that that claim arose out of the Town's failure properly to inspect and maintain the outflow pipe at the Property. Since the Town undertook to repair the pipe with a cured-in-place liner, which its now-former Director of Public Works testified has a service life of thirty to fifty years, there has been no further damage at the Property—even during the major storm/flooding events of the last two summers. Thus, any exposure going forward is a matter of speculation.

CONCLUSIONS

The parties agree that the applicable standard here is found in 24 V.S.A. Chapter 101. By further agreement, the vehicle for the court's scrutiny is the petition filed by the Town in response to Mongeon's filing of the Complaint in this case. See 24 V.S.A. § 3606. The statute calls for a de novo hearing, with the burden on the Town to prove the necessity of the taking. 24 V.S.A. § 3609(b). "Necessity" has a defined meaning: " 'Necessity' means a reasonable need that considers the greatest public good and the least inconvenience and expense to the condemning party and to the property owner." 24 V.S.A. § 3601(4). By its express terms, the statue requires the condemning authority—here, the Town—to make a comparative showing:

Necessity shall not be measured merely by expense or convenience to the condemning party. Due consideration shall be given to the adequacy of other property and locations; to the quantity, kind, and extent of property that may be taken or rendered unfit for use by the proposed taking; to the probable term of unfitness for use of the property; to the effect of construction upon scenic and recreational values, upon home and homestead rights and the convenience of the owner of the land; to the effect upon town grand list and revenues.

Id. There are two elements to this comparison. Not only must the court consider the "greatest public good"; it must also consider "the least inconvenience and expense to the condemning party and the property owner." Id. As a matter of plain meaning, the use of the superlatives, "greatest" and "least," connotes not only a qualitative but a comparative evaluation.

In this case, the Town has failed to make the required showing, on virtually all fronts. Assuming without deciding that the Town's decision to eschew the analysis and recommendations from the 2017 and 2020 studies and focus on the MB-09 watershed to the apparent exclusion of all others for the investment of over $1.5 million was appropriate—and this is far from a given, as the Town presented no persuasive evidence of any comparative analysis that supports the decision⁵—it failed to demonstrate that its choice of either site or technology sufficiently considered alternatives in either regard. Instead, as noted above, the Town focused exclusively on the Property, and that focus, in turn, led to the choice of treatment system design. The only alternative the Town even cursorily considered was another location for the same design—and of course that location was going to lose the comparison, as the system was designed specifically to fit the Property and nowhere else. And as noted above, even that comparison was not undertaken until after the Town had determined to take the Property. Bluntly, this is the antithesis of the careful, comprehensive analysis of the relative costs and benefits of alternatives to the proposed taking that the statute clearly requires.

The court notes that Mongeon moved for judgment at the close of the Town's evidence. It is now clear that the court should have granted that motion, as the findings above make clear that the Town had failed to carry its burden. At best, the Town's evidence suggested that the Project would be a convenient solution to the problem of maintaining an outflow pipe that runs under a property the Town does not own. But the statute makes clear that convenience to the condemning party is not the measure of necessity. And even if it were, the Town's evidence concerning the risks associated with the pipe does not allow the kind of cost-benefit analysis that the statute clearly requires.

Instead, the evidence compels the conclusion that this is a bad faith, pretextual taking, driven not by the careful analysis of costs and benefits and consideration of alternatives that the statute compels, but by the desire to remove what at least the then-Director of Public Works and the Town's counsel felt was a thorn in the Town's side. This, of course, is impermissible. While the Vermont Supreme Court has yet to wade into the waters of bad faith takings, there is a well-developed body of caselaw from other jurisdictions that uniformly condemns bad faith takings as violations of due process. See, e.g., New England Estates, LLC v. Town of Branford, 294 Conn. 817, 854 (2010) ("It is well established, however, that a government actor's bad faith exercise of the power of eminent domain is a violation of the takings clause."); Middletown Township v. Lands of Stone, 595 Pa. 607, 617 (2007) ("the government is not free to give mere lip service to its authorized purpose or to act precipitously and offer retroactive justification"); Pheasant Ridge Associates Ltd. Partnership v. Burlington, 399 Mass. 771, 775 (1987) ("a municipal land taking, proper on its face, may be invalid because it was undertaken in bad faith"); Earth Management, Inc. v. Heard County, 248 Ga. 442, 446 (1981) ("We have repeatedly held … that a condemning authority may not act in bad faith in the exercise of the right of eminent domain."). The principle underlying these cases was well articulated by a New Jersey trial court: "public bodies may condemn for an authorized purpose but may not condemn to disguise an ulterior motive." Borough of Essex Fells v. Kessler Inst. for Rehab., 289 N.J. Super. 329, 338 (N.J. Super. Ct. 1995). This principle should not be controversial; it is easy to predict that our Court would agree wholeheartedly. In short, the conclusion that the proposed taking here was initiated in bad faith is a separate, independent basis for rejecting the taking.

These conclusions are buttressed by consideration of Mongeon's unrebutted evidence. Essentially, Mongeon did the Town's homework for it—or at least made a start of it. While Mongeon's expert undertook a detailed analysis of only one alternative to the Town's proposed treatment plan, that alternative is so clearly superior to the Town's, by any conceivable measure, that it brings into sharp focus the abject failure of the Town's process to "consider[] the greatest public good and the least inconvenience and expense to the [Town] and to [Mongeon]." Thus, the court adopts Mongeon's expert's conclusion:

the Town's proposed sketch for stormwater treatment at 885 E. Lakeshore Drive would [not] be even the 2^nd, 3^rd, or 4^th preferred stormwater treatment location in this watershed as alternative locations exist where Tier I treatment practices could be provided for greater phosphorus removal. Alternative locations would also be more cost effective, more accessible for maintenance and construction, and present a lower risk of failure.

Ex. 6, p. 8.⁶

This conclusion compels rejection of the Town's petition. Not only has the Town failed to demonstrate that its proposed taking "considers the greatest public good and the least inconvenience and expense to the condemning party and to the property owner," Mongeon has demonstrated that it absolutely does not. Instead, the proposal appears tailored to scratch a particular itch, completely unrelated to the stated purpose. And even if scratching that itch could be considered a proper public purpose, the Town has made no showing that amputating the limb on which the itch is found and replacing it with a very expensive prosthetic is the best and most cost-effective solution.

ORDER

The court denies the Town's Petition. The separate judgment order required by V.R.C.P. 58 will await the taxation of costs. Plaintiff shall submit its verified bill of costs within 14 days of the entry of this Order.

Electronically signed pursuant to V.R.E.F. 9(d): 3/25/2025 9:30 AM

Vermont Supreme Court
Filed: April 23, 2025

STATE OF VERMONT

MONGEON BAY PROPERTIES, LLC,
   Petitioner/Plaintiff,

v.

TOWN OF COLCHESTER,
   Respondent/Defendant.

NOTICE OF APPEAL

NOW COMES Defendant Town of Colchester ("Town"), by and through its attorneys, Monaghan Safar PLLC, and, pursuant to V.R.A.P. 3 and 4, hereby appeals to the Vermont Superior Court from the March 25, 2025 decision of the Vermont Superior Court, Chittenden Civil Division, entitled Findings, Conclusion, and Order. Copy of that decision is attached hereto.

Dated at Burlington, Vermont, this 23^rd of April, 2025.

MONAGHAN SAFAR PLLC

DECISION AND ORDER ON MOTIONS FOR SUMMARY JUDGMENT

This case involves a dispute as to whether there is a right-of-way, open for use by the public as a hiking trail, running across private lands in Chittenden that are owned by Plaintiffs John and Debra Gerlach. Defendant-Counterclaimant, the Town of Chittenden, seeks summary judgment on its claim for a declaration that there is such a trail. Plaintiffs seek summary judgment on their claims seeking declarations by this Court that: (1) a former public road traveling on roughly the same path as the disputed trail was properly discontinued in the 1800s; and (2) no subsequent actions have established a public road or trail over Plaintiffs' lands.

Plaintiffs are represented by William H. Meub, Esq. and Andrew J. Snow, Esq. The Town is represented by James F. Carroll, Esq., and Kevin L. Kite, Esq. For reasons that follow, the Town's motion is GRANTED, and Plaintiffs' motion is DENIED.

Standard of Review

A court shall grant a motion for summary judgment "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." V.R.C.P. 56(a). The moving party bears the initial burden of identifying the basis for the motion and identifying those portions of the record that demonstrate the absence of a genuine dispute as to any material fact. V.R.C.P. 56(c)(1). However, the showing necessary to satisfy this initial burden varies, depending on whether the movant would bear the burden of persuasion as to the particular issue at trial. See 10A A. Steinman & M. Kane, Fed. Prac. & Proc. Civ. § 2727.1 (4th ed., Apr. 2025 update).¹ If the movant bears that burden—such as where a plaintiff seeks summary judgment on one of its own claims for relief—the movant's burden at the summary judgment stage is a heavy one:

it must lay out the elements of its claim, citing facts it believes satisfies those elements, and demonstrating why the record is so one-sided as to rule out the prospect of the nomovant prevailing.

Id. Thus, even in instances where the basic facts are undisputed by the parties, summary judgment in favor of the party with the burden of proof is inappropriate if "reasonable minds might differ on the inferences arising from undisputed facts." Impossible Elec. Techniques, Inc. v. Wackenhut Protective Sys., Inc., 669 F.2d 1026, 1031 (5th Cir. Unit B 1982); see also Hunt v. Cromartie, 526 U.S. 541, 553 (1999) (summary judgment unavailable if undisputed record is "susceptible" to differing inferences); Rich v. Sec'y, Fla. Dep't of Corr., 716 F.3d 525, 530 (11th Cir. 2013) ("When the moving party has the burden of proof at trial, that party … must support its motion with credible evidence that would entitle it to a directed verdict if not controverted at trial." (emphasis, quotation marks, and citation omitted)).

"Whether a jury could reasonably find for either party, however, cannot be defined except by the criteria governing what evidence would enable the jury to find for either the plaintiff or defendant." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254 (1986). "Thus, in ruling on a motion for summary judgment, the judge must view the evidence presented through the prism of the substantive evidentiary burden." Id. And in evaluating the evidence presented, all of which must be "admissible" to be considered, V.R.C.P. 56(c), "[t]he nonmoving party receives the benefit of all reasonable doubts and inferences." Gates v. Mack Molding Co., Inc., 2022 VT 24, ¶ 13, 216 Vt. 379. "If the movant [with the burden of proof at trial] fails to make th[e] initial showing, the court must deny the motion, even if the opposing party has not produced any contradictory evidence in response." Fed. Prac. & Proc. Civ. § 2721.1; see Margison, 146 Vt. at 118-19. If, on the other hand, the moving party "makes such an affirmative showing, it is entitled to summary judgment unless the nonmoving party, in response, comes forward with significant, probative evidence demonstrating the existence of a triable issue of fact." United States v. Four Parcels of Real Prop. in Greene & Tuscaloosa Cntys. in State of Ala., 941 F.2d 1428, 1438 (11th Cir. 1991) (en banc) (cleaned up).

Undisputed Material Facts

Plaintiffs own real estate, consisting of nearly 600 acres and some improvements thereon, located off Mountain Spring Road in Chittenden (hereinafter "the Property"). (Pls.' Opp'n to Town's Statement of Undisputed Material Facts ("Pls.' Opp'n to SUMF"), ¶ 1.) Plaintiffs acquired the Property in January 2018 through a warranty deed from Stanley P. Fishkin and Nancy S. Marshall (hereinafter "Fishkin/Marshall"). (Id. ¶ 3.) There is a disputed public right-of-way that runs east-west across the Property, and which the Town today formally refers to as "Legal Trail No. 10," and which the Town formerly called "Town Highway No. 11." (Id. ¶¶ 5, 7; Def.'s Exs. K & L.) In their filings in this and other legal proceedings, the parties refer to this same disputed right-of-way as the "1796 Road" or the "Green Road," and the name "Green Road" was also used to identify this road on old maps and in old records. (Pls.' Opp'n to SUMF, ¶ 5.) To avoid confusion in this ruling, the Court generally refers to this as the "disputed trail."

In the early 2000s, when Fishkin/Marshall owned the Property, the Town began to assert that the disputed trail was a public road that had been established through two surveys, each made in 1796. (Id. ¶ 12.) In response, Fishkin/Marshall, together with another nearby owner, Jean Arendt, filed an action in this Court against the Town and its officials, alleging that the 1796 surveys did not establish a road in the manner required by then-existing statutes pertaining to the establishment of public roads. (Id. ¶ 13.) The suit, which was filed in June of 2004, further alleged that, even if properly established, the road was properly discontinued in 1846 by an order of what was then known as the "Rutland County Court." (Id.) In sum, Fishkin/Marshall sought a declaration that there was no existing public road, or any other right-of-way or interest held by the Town, allowing public travel over and across the Property. (Id.)

In July of 2006, Fishkin/Marshall, together with the defendants in that case, executed and filed a Settlement Stipulation with the Court. (Id. ¶¶ 16-17.) The first paragraph of the Settlement, entitled "Background," references the Town's claim that the "1796 Road" is an existing public road/highway that crosses the Property, and also references the Town's claim that another road—the portion of Mountain Spring Road as it extends northerly into the Property—is also a public road. (Def.'s Ex. F, ¶ 1.) The next paragraph of the Settlement Stipulation obligates the Town initiate and complete, as soon as reasonably possible, "the process, pursuant to 19 V.S.A. Chapter, to terminate or discontinue" any rights held by the Town with regard to Mountain Spring Road. (Id. ¶ 2.) The Stipulation then addresses the disputed trail (so-called "1796 Road"), as follows:

Location/alteration and reclassification of 1796 Road: Upon discontinuance of the Mountain Spring Road as provided above, Chittenden shall, within 30 days of that event, initiate the process, pursuant to 19 V.S.A. Chapter 7, of altering and reclassifying the 1796 Road to a trail pursuant to 19 V.S.A. §301 (8)(A). That section of reclassified trail which crosses the Fishkin/Marshall property … shall be used for hiking and other non-motorized recreational purposes. The exact location of the centerline of the 1796 Road which was described as a four rod wide road shall be as set forth in the attached Exhibit[] … B as the same abuts or passes through the Arendt and Fishkin/Marshall properties…. The Town of Chittenden shall take all reasonable steps within its power to complete the alteration and reclassification process and adopt any necessary ordinances in order to restrict the use of this trail as provided for in this Agreement as soon as reasonably possible. Upon final alteration and reclassification of the 1796 Road, the location of the trail shall be shown on future official town highway maps. The actual used portion of the trail may be located anywhere within the four rod right of way. The Defendants shall not endeavor to change the status of those sections of the 1796 Road within the Fishkin/Marshall property … as a trail for non-motorized recreational uses for as long as Stanley Fishkin and/or Nancy Marshall own the Fishkin/Marshall property…. No structures other than bridges or culverts shall be permitted within the right of way, but Chittenden may take such steps as are reasonably necessary to maintain the used portion of the trail within the right of way. The Town or its designee may place appropriate signage. The Plaintiffs shall not object to this action and to the designation of the 1796 Road as a trail or any ordinance intended to restrict the use of the trail as provided for in this Agreement, nor shall any of the parties to this Agreement seek compensation in any reclassification or alteration proceedings to implement this Agreement. The trail will be located as it passes the "meadow at Thomas hill" where the centerline is located so as not to disturb the meadow.

(Def.'s Ex. F, ¶ 3.)

Exhibit B to the Settlement Stipulation was a map prepared during the summer of 2006 by Deborah Daniels Mithoefer, a licensed professional surveyor retained by the Town. (Pls.' Opp'n to SUMF, ¶¶ 21, 48; Def.'s Ex. K, ¶¶ 7-8.) The map depicts the disputed trail's location as it crosses the Property, and also specifically identifies where colored flags had been placed to mark portions of the trail's newly-altered location, and contains the following statements:

The centerline of the trail shall run by and along the logging road as it passes through land of Fishkin as depicted hereon. The trail shall then continue easterly following the blue and orange flags south of the meadow on Thomas Hill and then following by and along the pink flagging to the lands of the USFS.

(Pls.' Opp'n to SUMF, ¶ 21; Ex. B to Def.'s Ex. F.)

The Settlement Stipulation also included provisions under which the parties agreed that the Town would relinquish certain rights and/or take certain actions. For example, the Town relinquished any right it may have had, under recently-enacted legislation, to reclassify any "unidentified corridor" on the Property to a public road. (Def.'s Ex. F., ¶ 6.) The settling parties also agreed that, for purposes of local property taxes, the Town would reduce, by $50,000 per tax year, the assessed value of the Property for the 2004, 2005, and 2006 tax years. (Id. ¶ 8.) In return, Fishkin/Marshall agreed to dismiss with prejudice a separate lawsuit—the so called "Tax Appeal Case," Superior Court Docket No. 582-9-04 Rdcv—that they had brought against the Town in 2004, on the heels of their Declaratory Judgment Act suit. (Id.)

On September 22, 2006, the Settlement Stipulation was signed and filed in the Court's docket as an order of the Court. (Pls.' Opp'n to SUMF, ¶ 17; Def.'s Ex. F, at 10.) Shortly thereafter, consistent with paragraph 2 of the Settlement Stipulation, the Town completed proceedings to discontinue Mountain Spring Road. (Pls.' Opp'n to SUMF, ¶¶ 33-34.) On April 1, 2008, Ms. Mithoefer, at the request of the Town, completed a formal survey of the centerline of the disputed trail as it crossed the Property, in accordance with Exhibit B of the Settlement. (Id. ¶¶ 35-36.) That survey was prepared for use during proceedings later that year to alter the location, and reclassify "Town Highway No. 11" to a legal trail, as it crossed the Property. (Id. ¶ 50.) In September of 2008, the selectboards of the Towns of Chittenden, Pittsford, and Pittfield jointly initiated those proceedings. (Id. ¶ 37.) A public hearing was held as part of those proceedings, which was attended by Fishkin/Marshall's attorney. (Id. ¶¶ 38-39.) The selectboards thereafter issued a joint Report, which found that "public good, necessity and convenience of the inhabitants of the Town of Chittenden require[d]" the proposed alteration and reclassification of Town Highway No. 11 as it crossed the Property of Fishkin/Marshall. (Id. ¶ 40.) A copy of the April 2008 Mithoefer survey was attached to the joint Report, and the Report itself referenced the survey as evidence of the location of the public road that, according to the Report, had been altered and reclassified from a Class 4 road into a public trail. (Def.'s Ex. I.) Later that year, the joint Report was recorded in the land records of the Towns of Chittenden, Pittsford, and Pittsfield. (Pls.' Opp'n to SUMF, ¶ 42.)

From 2006 through 2009, the disputed trail had been depicted on annual State Highway Maps for the Town of Chittenden as "Town Highway No. 11." (Pls.' Opp'n to SUMF, ¶ 44.) After the Settlement Stipulation, the Town of Chittenden, along with the State Agency of Transportation ("AOT"), worked to amend the State Highway Maps for Chittenden, in order to identify and show "Legal Trail No. 10" on the Maps, where Town Highway No. 11 had been. (Pls.' Opp'n to SUMF, ¶ 46.) Thus, beginning in 2010, and for all subsequent Highway Maps published by the State AOT, the former "Town Highway No. 11" was redesignated and shown as "Legal Trail No. 10." (Id. ¶ 45; Def.'s Ex. L.)

The Plaintiffs have failed to show a genuine dispute as to any material fact. "'An issue of fact is material only if it could affect the outcome of the case.'" Civetti v. Turner, 2022 VT 64, ¶ 19, 217 Vt. 411 (quoting Gates, 2022 VT 24, ¶ 14). Plaintiff's argument regarding the work of Ms. Mithoefer is misplaced. Ms. Mithoefer submitted a sworn affidavit that describes work that she performed personally during 2006-08, including the drafting of Exhibit B and her subsequent survey. (See Def.'s Ex. K, ¶¶ 3-16.) She alleged that her work included entering the Property and performing the work of a professional surveyor, on the ground. Plaintiffs dispute that "any marking or work … [was] done on the ground at the Property in 2006 or any time prior to the Gerlachs' purchase of the Property." (Pls.' Opp'n to SUMF, ¶ 49.) Putting aside whether a rational fact finder could agree with Plaintiffs on that issue, Plaintiffs have not shown that the issue is material.

Whether Ms. Mithoefer actually went to the Property in the summer of 2006 and conducted survey work are not facts that are material to the question whether Fishkin/Marshall unequivocally intended to dedicate the disputed trail to public use, which is determinative as explained below. Fishkin/Marshall gave their assent to Exhibit B—however it was prepared—as well as to the remainder of the Settlement Stipulation. Likewise, even if Ms. Mithoefer's April 2008 survey was wholly contrived by her, or grossly negligent or inaccurate, the survey was still presented at a public hearing, not objected to by Fishkin/Marshall, and then recorded in the land records as an exhibit to a joint Report that found "Legal Trail No. 10" to be necessary and in the public interest. Indeed, but for their contention that a reclassification of a public highway to a trail is a legal impossibility unless there is an existing highway to reclassify, Plaintiffs readily concede that the procedures actually undertaken by the three Towns met all the statutory requirements for a highway reclassification (and alteration). That valid process necessarily includes the making and recording of a survey.

Similarly, whether Ms. Mithoefer took steps from 2014 and onward to install permanent monuments and markings of the location of Legal Trail No. 10, is not material to the issues of dedication and acceptance. As explained below, the dedication and acceptance was completed no later than the Town's completion of the statutory reclassification/alteration proceedings in November of 2008. And Plaintiffs make no argument that the disputed trial was ever discontinued at some point after 2008. As such, whether Ms. Mithoefer performed additional work on the Property, between 2014 and 2022, is not material to the disposition of this motion.

Analysis

Plaintiffs seeks a judgment declaring that the disputed trail was properly discontinued by court order in 1846 or "pursuant to the presumption of discontinuance contained in 19 V.S.A. § 717." (Pls.' Mot. for Summ. J. at 1, 8.) It also seeks an order declaring that the Town now has no public rights or interests to the disputed trail. (Id. at 1, 9.) The Town seeks a judgment declaring that the disputed trail is open to the general public as of right, for hiking and other non-motorized recreational purposes, and which the Town has a right to maintain and control. (Def.'s Mot. for Summ. J. at 19.) The Court starts with the Town's motion.

I. The Town's Motion for Summary Judgment

The Town advances two, alternative theories in arguing for summary judgment. First, it asserts that, pursuant to the Settlement Stipulation, it acquired a public use trail from Fishkin/Marshall as a matter of contract, which is binding on and enforceable against Plaintiffs. (Def.'s Mot. for Summ J. at 2-15.) Second, the Town claims that under the common-law doctrine of dedication and acceptance, Fishkin/Marshall dedicated the disputed trail to the public, and the Town accepted that dedication, thus establishing the trail as a matter of law before Plaintiffs entered the picture. (Id. at 15-19.)

Plaintiffs argue public roads cannot be established through a contract with a landowner, and the Settlement Stipulation was not made binding on or enforceable against them. (Pls.' Opp'n to Town's Mot. for Summ. J. at 3-10.) Plaintiffs also argue the Settlement Stipulation reveals no intent by Plaintiffs' predecessors in title to dedicate the disputed trail to public use. (Id. at 16-17.) Because the court grants the Town's motion based on dedication and acceptance, the court does not address the Town's contract argument.

A. Dedication and Acceptance

The common law process of "transferring ownership of a road from private hands to town requires dedication by the owner and acceptance by the town." Island Indus., LLC v. Town of Grand Isle, 2021 VT 49, ¶ 28, 215 Vt. 162. "'Dedication is the setting apart of land for public use,' which may arise 'either expressly or by implication of law.'" Id. (quoting, with prior quotation marks omitted, Town of S. Hero v. Wood, 2006 VT 28, ¶ 10, 179 Vt. 417). The issue of the owner's intent to dedicate private lands to public use "is a question of fact,'" Wood, 2006 VT 28, ¶ 10 (quoting Smith v. Town of Derby, 170 Vt. 553, 554 (1999) (mem.)), on which the proponent of dedication bears the burden of proof at trial, see Kirkland v. Kolodziej, 2005 VT 90, ¶¶ 1-2, 199 Vt. 606; County of Bennington v. Town of Manchester, 87 Vt. 555, 559 (1914); 22B Am. Jur. 2d Dedication § 70. An owner's intent to dedicate may be demonstrated by the "owner's writings, affirmative acts, acquiescence in public use, or some combination thereof, so long as the owner's intent to dedicate clearly appears." Kirkland, 2005 VT 90, ¶ 35.

While the owner's intent to dedicate "must be shown beyond conjecture," Gore v. Blanchard, 96 Vt. 234, 239 (1922), dedications based on an owner's writings or declarations require no "particular words or forms of conveyance," 22B Am. Jur. 2d Dedication § 23 (citing Kadlec v. Dorsey, 233 P.3d 1130, 1131 (Ariz. 2010) (en banc)), nor any "particular … ceremony," Bd. of Cnty. Comm'rs of St. Mary's Cnty. v. Aiken, 296 A.3d 933, 954 (Md. 2023). See, e.g., Island Indus., 2021 VT 49, ¶ 29 (finding express dedication based on various writings by landowner submitted piecemeal to town); City of Montpelier v. McMahon, 85 Vt. 275, 278-80 (1911) ("unequivocal" dedication and acceptance found where town built new street in alignment with its survey, which was "made in accordance with" prior agreement by town to relinquish a part of another public road back to landowner, in return for that owner's relinquishment of other land for new street (citing Town of Fairfield v. Morey, 44 Vt. 239 (1872))); Winooski Lumber & Water Power Co. v. Town of Colchester, 57 Vt. 538, 542 (1885) (former landowner's recorded survey of roads crossing his land was a "proffer[]" to dedicate that was "open for acceptance"), overruled on other grounds, Demers v. City of Montpelier, 120 Vt. 380 (1958); Aiken, 296 A.3d at 955 ("Absent language showing contrary intent, the intent to dedicate may be presumed when a landowner makes a plat of their property depicting streets or public roads and subsequently conveys that property." (quotation marks omitted)).

An imperfect or defective statutory dedication "can be considered as a valid common law dedication." 22B Am. Jur. 2d Dedication § 36 (citing, inter alia, Great N. Props., LLLP v. Extraction Oil & Gas, Inc., 522 P.3d 228, 238 (Colo. App. 2022) ("Dedication can occur by common law or by statute, and 'if defective under either method, it may be operative under the other.'" (quoting Fortner v. Eldorado Springs Resort Co., 230 P. 386, 388 (Colo. 1924)), rev'd on other grounds, 547 P.3d 1110 (Colo. 2024)); see 11A McQuillen The Law of Municipal Corporations § 33.5 (3d ed., July 2024 update) ("a statutory dedication which is imperfectly made is often considered to be a valid common-law dedication"). That is because a dedication a form of equitable estoppel. See Wood, 2006 VT 28, ¶ 11; County of Bennington, 87 Vt. at 557. Equitable estoppel arises where the party who would be estopped has given the party claiming estoppel a "right to rely on" the former's representations, "as indicative of [the former'] intent." Gore, 96 Vt. at 239 (1922); see 22B Am. Jur. 2d Dedication § 19 ("The acts of the owner must either be such as to show an intent to dedicate, or such as to estop him from denying that such was his intent…. [T]he question is not one of necessity, but one of reliance by the public on appearances created by the landowner.").

An estoppel to deny a dedication of private lands to public use is complete when there is substantial, good faith reliance on the owner's clear offer of dedication, such that it would be unjust to thereafter allow the private owner to enforce a right of private ownership. See Morey, 44 Vt. at 244 ("[I]f accepted and used by the public in the manner intended, the dedication is complete, precluding the owner, and all claiming in his right, from asserting any ownership inconsistent with such use." (quotation marks omitted; emphasis in original)). Consistent with such principles, a "[l]apse of time is not required to ripen a dedication; it becomes binding and irrevocable when the offer and acceptance are complete." County of Bennington, 87 Vt. at 557; see Kirkland, 2005 VT 90, ¶ 35 ("No lapse of time … is required if the acts of dedication and acceptance are unequivocal"); Morey, 44 Vt. at 244 (same); see also Fisher v. Poole, 142 Vt. 162, 168-69 (1982) (real estate seller estopped to assert that disputed right of way was retained by him pursuant to his deed, since just "prior to" execution and delivery of deed, the elements of equitable estoppel were established).

Acceptance, in addition to a dedication, is required to create a public right-of-way. The proponent of an acceptance must prove that appropriate town authorities clearly intended to "assume[] the responsibility of maintenance and repair of the highway or otherwise … exercise[] control over the highway." Kirkland, 2005 VT 90, ¶ 38. As with the owner's intent to dedicate, the issue of the town's intent to accept a road as public "is a question of fact." Okemo Mtn., Inc. v. Town of Ludlow Zoning Bd. of Adjustment, 164 Vt. 447, 455 (1995). Acceptance of a road by a town may established from written or oral expressions made by appropriate town officials, or proven by implication, so long as the evidence clearly reveals an intent on the part of the town to accept the road as a public road. See Island Indus., 2021 VT 49, ¶¶ 28, 34; Gardner v. Town of Ludlow, 135 Vt. 87, 90 (1977); Druke v. Town of Newfane, 137 Vt. 571, 576 (1979); McMahon, 85 Vt. at 278-80.

As to an acceptance by implication, the proponent of the acceptance must prove an "unequivocal intent to accept 'coupled with some affirmative act of acceptance on behalf of the town.'" Id. ¶ 28 (quoting Kirkland, 2005 VT 90, ¶ 35). "Road repairs and maintenance by the town is evidence from which acceptance may be inferred." Druke, 137 Vt. at 576. However, working the road or highway, or acknowledging an obligation to maintain a road or highway, are not the exclusive means by which the town's intent to accept may be shown. For example, an effort by the town's selectboard to "lay out" a public highway pursuant to statutory procedures, following the owner's dedication, is also a basis on which to find acceptance. See Winooski Lumber, 57 Vt. at 542 ("Instead of accepting the dedication as commonly done by working and using the streets, the selectmen proceeded, as we think, to 'lay out' the streets or highways under the statutes in that behalf, but standing upon the dedication as proffered in 1838, as still open for acceptance…."). Additionally, the listing of the purported road on a State Highway Map has also been found to support an inference of an intention by town officials to accept a road as a public road. See Gardner, 135 Vt. at 90; Smith v. Town of Derby, 170 Vt. 553, 555 (1999) (mem.).

B. Dedication by Fishkin/Marshall

The Town's evidence pertaining to the representations made by Fishkin/Marshall to the Town, viewed in the light most favorable to Plaintiffs, all point to one conclusion: Fishkin/Marshall clearly and unequivocally intended to dedicate the disputed trail to public use as a hiking trail, or the Town at least had the right to believe that Fishkin/Marshall had so intended.

The 2006 Settlement Agreement was entered into after roughly two years of litigation, during which the parties' respective battle lines were clearly drawn. On one side, the Town had been claiming that a supposed corridor or old road running across and through undeveloped private lands was full-blown public road. (See Def.'s Ex. F, ¶ 1 ("Background")). On the other side, the affected landowners, Fishkin/Marshall, claimed unrestricted ownership in fee and the right to exclude others. Paragraph 3 of the Stipulation spelled out terms by which the parties agreed to settle that central dispute, by answering several key questions—including the what, when, where, how—as follows:

What extent of easement, if any?: "Th[e] section of reclassified trail"—i.e., the "1796 Road," when later altered and reclassified "to a trail" as it crosses the Property—"shall be used for hiking and other non-motorized recreational purposes." (Def.'s Ex. F, ¶ 3 (emphasis added).)

How achieved?: "[T]he process, pursuant to 19 V.S.A. Chapter 7, of altering and reclassifying the 1796 Road to a trail pursuant to 19 V.S.A. § 301(8)(A)." (Id.)

When?: "Upon discontinuance of Mountain Spring Road … Chittenden shall … initiate … within 30 days" the above process and "take all reasonable steps within its power to complete the … process and adopt any necessary ordinances in order to restrict the use of this trail as provided for in this Agreement as soon as reasonably possible." (Id. (emphasis added).)

Where located?: "The exact location of the centerline of the 1796 Road which was described as a four rod wide road shall be as set forth in the attached Exhibit[] … B as the same abuts or passes through the … Fishkin/Marshall properties." (Id.) "The actual used portion of the trail may be located anywhere within the four rod right of way." (Id. (emphasis added).)

How constructed/maintained?: "No structures other than bridges or culverts shall be permitted within the right of way, but Chittenden may take such steps as are reasonably necessary to maintain the used portion of the trail within the right of way. The Town or its designee may place appropriate signage." (Id. (emphasis added).)

These provisions are clear representations of an intention to dedicate the disputed trail to public use. The repeated references to "use" and "actual use" of the agreed upon right-of-way as a hiking and recreational trail is indicative of an intent to allow actual use, and thus, an intent to give up the fundamental right to exclude others. See Echeverria v. Town of Tunbridge, 2024 VT 47, ¶ 19, 325 A.3d 98. Further, the parties' stipulation to the map attached as Exhibit B, which depicts an already-marked trail at a specific location crossing the Property, further shows and represents an intent to "set aside" a portion of private lands for public use. Cf. Winooski Lumber, 57 Vt. at 541-42; McMahon, 85 Vt. at 278-80; Aiken, 296 A.3d at 955.

Indeed, the parties' stipulation to Exhibit B makes this case substantially similar to City of Montpelier v. McMahon, supra, where a dedication and acceptance were found. Here, as in McMahon, the Town and the landowners agreed upon a land swap, such that a segment of an existing (or asserted) public right-of-way was relinquished to the landowners, and the landowners in turn relinquished a separate strip of land to the Town for use as a public way. And here, much like McMahon, the Town then prepared a survey of the new road (or newly-altered location of the road), which was in accordance with the parties' earlier agreement. In particular, both Exhibit B and the subsequent survey by Ms. Mithoefer depicted an altered course of the right-of-way in an area where it deviated away from its former course, so as to run south of "the meadow at Thomas Hill," so called. This mutual agreement to swap specific lands for different uses, represented on a map and survey prepared by the Town, is unequivocally indicative of an intent to dedicate the depicted right-of-way to public use.

Other provisions within the Settlement confirm this conclusion. For example, the provision obligating Fishkin/Marshall to not object to the process, "pursuant to 19 V.S.A. Chapter 7, of altering and reclassifying the 1796 Road to a trail pursuant to 19 V.S.A. § 301(8)(A)," also shows their intent to dedicate. Those referenced statutory provisions give the Town the legal authority to undertake a process to reclassify an existing public road to a legal public trail, and alter its location.² Thus, by promising not to object, Fishkin/Marshall plainly and knowingly acquiesced to that process—one that includes a professional survey, public notice, an examination, a public hearing, a final written report with findings, and the recording of the report and survey. The fact Fishkin/Marshall later followed through with their obligation not to object is additional proof of their intent to dedicate.

Additionally, the parties agreed that, after the completion of the reclassification/alteration proceedings, the Town would work with the State AOT to ensure that subsequent State Highway Maps for the Town of Chittenden would show "Town Highway No. 11" as "Legal Trail No. 10." Both of those references are to different categories or classes of public rights-of-way, recognized and claimed by a town (and confirmed by State review and inspection). A legal trail is simply a category or class that is below a Class 4 public road. By requiring that the Town ensure that subsequent State Maps recognized and depicted "Legal Trail No. 10" in place of "Town Road #11," Fishkin/Marshall revealed their intention for the reclassification/alteration proceedings to result in a valid public trail, depicted in official public records. They did not, by contrast, request that the Town work with the State to delete "Town Highway No. 11" and thereafter ensure that the Maps would show no other category or class of public right of way in its former location.

Moreover, Fishkin/Marshall also agreed not to seek compensation during the statutory reclassification/alteration process. Since such compensation would only be due if the process involved the public use of private lands, the mere reference to a right of the servient landowners to seek compensation is a recognition that the process concerns a public use right-of-way. Cf. Gore, 96 Vt. at 239 ("It is not a trivial thing to take another's land without compensation, and for this reason the courts will not lightly declare a dedication to public use." (internal quotation marks omitted)).

Lastly, the parties to the Settlement also agreed that the Town would reduce the assessed value of the Fishkin/Marshall property for multiple tax years, for purposes of local property taxation. Courts construe the payment of property taxes on lands as indicating a lack of intent to dedicate those lands to the public, "while nontaxation tends to show a dedication." 22B Am. Jur. 2d Dedication § 71; see Laughlin v. Morauer, 849 F.2d 122, 127 (4th Cir. 1988) ("Keeping in mind that the purse of a county government is among the dearest things to its heartstrings, we think it of considerable significance that the Park was taken off the tax rolls of Fairfax County with the recording of the plat of [the subdivision]."). Here, the landowners' filing of a tax appeal against the taxing authority, and then agreeing to dismiss that suit in return for the authority's reduction in the Property's assessed value, tends to show an intent by the owners (Fishkin/Marshall) to agree to have their lands burdened by a public use easement that lowers its fair market value.

Plaintiffs argue that Fishkin/Marshall were bound by only two promises of performance in the Settlement—to not object to the statutory proceedings to reclassify the disputed trail to a legal trail, and to not seek compensation during those proceedings—and that their intent cannot be derived from other terms within the Settlement. Tthat construction is refuted by the plain terms of the Settlement Stipulation. For example, the recital of the Stipulation states that each of the plaintiffs and the defendants "hereby agree and stipulate as follows…." (Def.'s Ex. F, at 1.) The Settlement Stipulation also indicates that it is the parties' "entire agreement" on the "matters covered by" it, and that is "has been jointly negotiated and drafted." (Def.'s Ex. F, ¶¶ 13-14.) As such, Plaintiffs' construction, which would render the bulk of the Settlement's terms precatory, or perhaps the expressions of the Town alone rather than jointly stipulated expressions, cannot survive under the plain terms of the Settlement itself.

Moreover, Plaintiffs' construction of the Settlement rests on a mistaken view as to the Town's claim based on dedication and acceptance. That claim is not for a supposed breach by Fishkin/Marshall or their successors in interest, with regard to any contractual obligation or particular promise of performance. Nor is it in the nature of promissory estoppel. Indeed, it is undisputed that Fishkin/Marshall kept their express promises or obligations, by not opposing the reclassification/alteration proceedings, and by not seeking compensation during those proceedings. Rather, the Town's theory, consistent with the doctrine of equitable estoppel, is that the Town reasonably relied on Fishkin/Marshall's representations to its detriment, such that it would be unjust for Fishkin/Marshall and all claiming in their right, to be permitted to assert that the trail does not exist as a matter of law. As such, all the representations by Fishkin/Marshall within the Settlement Stipulation, and also revealed through their conduct, is relevant to the equitable determination.

In conclusion, the Town has met its initial burden on the issue of dedication. No reasonable fact-finder would be free to find that such a dedication was not clearly and unequivocally intended by Fishkin/Marshall, or find that the Town was without justification in concluding that Fishkin/Marshall had so intended.

C. The Town's Reliance and Acceptance

The Town has also met its burden to show acceptance. In a more typical case, one involving a claim of dedication and acceptance arising by implication from the owner's acquiescence, it is the general public's open and adverse use of the disputed right-of-way that constitutes the reliance on the offer of dedication.³ Here, there is no evidence showing the public's use of the disputed trail, either before 2004, or after the parties' settlement or road-establishment effort. However, there is ample evidence that the Town substantially changed its position in good faith reliance on the representations of Fishkin/Marshall.

The Town agreed to complete the statutory process that would result in a significant reduction of the extent of the public easement that the Town had originally claimed. See Whitcomb v. Town of Springfield, 123 Vt. 395, 397 (1963) (reclassification of a public road to a trail "reduce[s] the extent of the easement … held by the Town"); Perrin v. Town of Berlin, 138 Vt. 306, 307-08 (1980) (same). The Town also agreed to an alteration of the location of the asserted right-of-way, so that the newly-reclassified trail would avoid crossing over "the meadow at Thomas Hill." In 2008, the Town fulfilled those promises by completing the statutory process, along with Pittsford and Pittsfield. It also thereby expended "time and costs to go through a whole alteration and reclassification proceeding," as Plaintiffs' counsel have observed. The's Town's costs included those spent to retain a professional surveyor, Debra Mithoefer, to draw Exhibit B in 2006, and later prepare the survey made in accordance with her drawing. Additionally, the Town agreed to relinquish a portion of Mountain Spring Road to Fishkin/Marshall, and duly completed statutory discontinuance proceedings to that effect. The Town also agreed to not claim any unidentified corridors located on the Property as public roads, thereby ensuring that all rights to those corridors would revert back to Fishkin/Marshall as a matter of law.

These expressions and actions by the Town reveal an unequivocal intent by the Town to accept the disputed trail as a public trail. See Winooski Lumber, 57 Vt. at 542 (statutory proceedings to lay out a road are indicative of acceptance); McMahon, 85 Vt. at 278-80 (town's survey to effectuate land swap for new road, and construction of road in alignment with survey, shows acceptance).⁴ Acceptance is also shown by provisions within the Settlement Stipulation that expressly reserve the Town's right to "take such steps as are reasonably necessary to maintain the used portion of the trail within the right of way," and "place appropriate signage." (Def.'s Ex. F, ¶ 3 (emphasis added).) That express reservation of a right to maintain is significant since, by statute, towns are not required to maintain legal trails. See 19 V.S.A. § 302(a)(5). In addition, the efforts undertaken by the Town to ensure that the State Highway Maps for Chittenden depict "Legal Trail No. 10," where "Town Highway No. 11" had been depicted, indicate an intention by the Town's selectboard to accept the disputed trail as a public trial. See Gardner, 135 Vt. at 90.

The Court concludes that no reasonable trier of fact could find from this record anything other than an unequivocal intent by the Town to accept the disputed trail as a legal public trail. Detrimental reliance, including the expenditures of public funds, and a relinquishment of the public's property rights, is also clearly shown. The Court also concludes that the record shows clearly that the dedication and acceptance was completed and effective no later than the Town's completion of the statutory reclassification/alteration proceedings in November of 2008, if not earlier. No additional lapse of time was necessary. See Kirkland, 2005 VT 90, ¶ 35.

II. Plaintiffs' Motion For Summary Judgment

Given the above judgment as a matter of law, the Court must deny Plaintiffs' motion that seeks a summary judgment declaring that the Town has failed to establish a legal public trail on the Property. The Court will also deny as moot Plaintiff's motion on its claim that seeks a declaration that the supposed road or trail was discontinued during the 1800s. There is no longer an actual, live case or controversy, or dispute or uncertainty, sufficient to support or warrant adjudication of that question. See Echeverria, 2024 VT 47, ¶¶ 24-27.

ORDER

Wherefore, the Town of Chittenden's motion for summary judgment, filed October 1, 2024, is GRANTED. The motion for summary judgment filed October 1, 2024, by Plaintiffs John and Debra Gerlach, is DENIED.

Electronically signed on May 5, 2025 pursuant to V.R.E.F. 9(d)

FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER

This case involves a dispute over River Road in West Haven, Vermont. The matter came before the court on a two-day bench trial, on June 24 and 25 of 2024, on the sole issue of whether the portion of River Road known as Upper River Road is a public highway. Plaintiffs Peter and Greta Doran were represented by Attorneys Antonietta Dutil and Rodney McPhee. Defendant Christopher Sheldrick, both individually and as executor to the estate of Raymond Bishop, was represented by Attorneys Peter Langrock and John Brady. Defendant Town of West Haven was excused from the bench trial. Based upon the credible evidence presented at trial, and upon review of the parties' post-trial briefs, the court makes the following findings of fact and conclusions of law by a preponderance of the evidence.

Findings of Fact

As a preliminary matter, the court's prior ruling on summary judgment was admitted without objection as Exhibit 34. As such, the court adopts all facts that were identified as undisputed in that ruling, as findings of fact for purposes of the bench trial. As noted in the decision on summary judgment, River Road is a gravel surfaced road in the Town of West Haven. River Road runs between Main Road and Hackadam Road and is commonly identified by two sections: Lower River Road and Upper River Road. Lower River Road begins at an its intersection with Main Road, and runs southwesterly, and roughly parallel with the Hubbardton River, until it veers northward for a short distance before making a tight U-turn. Upper River Road begins at the apex of the U-turn, and runs near due south, until it ends, at its intersection with Hackadam Road. The private parties to this action—that is, the Plaintiffs, Mr. Sheldrick, and the estate of Mr. Bishop—each own a parcel of real property that abuts and underlies a portion of what is known as Upper River Road.

As noted in the court's decision on summary judgment, Upper River Road was surveyed in 1785 when the land was within the boundaries of the Town of Fairhaven. The survey was recorded in the land records, but failed to specify the width or breadth of the roadway that it purported to lay out. This was not the only public roadway the town purported to lay out at this same time by a recorded survey that described a roadway's location, distance, and course but which failed to specify its width or breadth.

In the court's ruling of August 31, 2023, the court found and declared that Lower River Road was a public highway via statutory condemnation. In that regard, the court relied upon a road survey, recorded on March 7, 1808, in the land records of the Town of West Haven (after it had been organized as a separate town), specifying the location, course, distance, and width, of a road that is now known as Lower River Road.

Thomas Fucile is a resident of West Haven, and has lived at 910 Hackadam Road, a quarter mile from River Road, since 1976. He has served as the fire chief since 1989 and served on the town selectboard for thirteen years in the 1980's and 90's. As part of his duties, Mr. Fucile would drive every Class 2 and Class 3 town roads annually. Upper River Road was included in this annual survey. During Mr. Fucile's tenure on the selectboard, Upper River Road was maintained by the Town of West Haven as a public highway. The town received stated aid for its maintenance and used public funds to maintain Upper River Road annually, added gravel as required, and placed salt or sand on the road during the winters. In addition, the town made any necessary repairs to the road.

When Mr. Fucile moved to West Haven in 1976, there were no houses on Upper River Road. Over the years, some houses were built, including the Doran's. Upper River Road was utilized by the public, including trucking gravel out of a gravel pit located on Lower River Road. When E-911 came to Vermont, Mr. Fucile became the 911 Coordinator and assigned every resident a 911 number to display on mailboxes at the end of driveways. E-911 numbers were assigned to residents of Upper River Road.

Defendant Sheldrick's parcel, and the parcel belonging to the estate of Raymond Bishop, did not exist until the 1980s. In 1998, Raymond Bishop submitted an application to subdivide his property. Ex. 54. As part of that application, Mr. Bishop submitted a survey map. Ex. 55. The application references River Road and does not purport to identify it as anything but a public road. This is consistent with the survey completed by Timothy Short and recorded in the West Haven land records in 1997. Ex. 56. This is also consistent with Mr. Bishop's deed, which describes the land covered by the deed "to the Bishop Falls Road." Ex. 22. Bishop Falls Road is another name used for River Road. Multiple surveys and maps of River Road throughout the years have depicted the road as a public highway. See e.g. Exs. 4, 24, 25, 26, 27, 28, 29, 30, 32. Mr. Sheldrick and the estate of Mr. Bishop both have mailboxes at the ends of their driveways on Upper River Road and receive mail from the Postal Service there.

Robert Ellis was the road commissioner for the Town of West Have for over twenty-one years. Mr. Ellis retired ten years ago. As road commissioner, Mr. Ellis was responsible for all of the town's road work. This included resurfacing, batching, cutting brush, and repairs. State and local public funds were utilized for the performance of this road work. Upper River Road was always considered a public road and was included in the town's maintenance and repair schedules. Public funds were utilized to maintain and repair Upper River Road.

Peter Doran has resided in West Haven for sixty-seven years and lives on Main Road. Mr. Doran owns property on Upper River Road. During his lifetime, Upper River Road was utilized by the community. People would drive on it, bike on it, and otherwise use it as a public road daily. Mr. Doran previously served on the selectboard in 2010 through 2012. The town maintained River road by grading, gravelling, and ditching the road. Historically, the town would have to repair Upper River Road due to yearly washouts. In 2009, the Town attempted to obtain a federal grant for road improvements that would have covered Upper River Road. Ex. 52.

Mr. Doran's daughter, Greta Doran, lives and owns property on an adjacent lot Upper River Road. Ms. Doran has resided in West Haven for thirty-four years of her life. Ms. Doran served on the selectboard in 2013 and 2014. Public funds were utilized to maintain and repair Upper River Road during this time. During her childhood, teenagers would frequently drive on Upper River Road to galivant. During her life, Ms. Doran has observed the following individuals use Upper River Road: townspeople, residents, dump trucks, farmers, Postal Service workers, UPS and FedEx drivers, fuel delivery drivers, and town trucks. Ms. Doran receives mail at her address at 900 River Road. In addition, the postal service delivers to five other residents on River Road.

Conclusions of Law

There are two methods by which a public road or highway over privately-held lands may be established: statutory condemnation, or common-law dedication and acceptance. See Kirkland v. Kolodziej, 2015 VT 90, ¶ 43, 199 Vt. 606; 19 V.S.A. § 1(12). The Court concludes, based on the application of the law to the facts found, that River Road was established as public road by way of dedication and acceptance. The Court does not address whether the Road was, alternatively, established as a public road through statutory condemnation.

According to our Supreme Court:

a long acquiescence in use[] by the public, if the attending circumstances are such as clearly to indicate an intent by the owner to devote the land to public use as a highway, is evidence upon which a dedication may be predicated. The allowance by the owner of repairs at public expense is a circumstance strongly tending to show such an intention.

Town of Springfield v. Newton, 115 Vt. 39, 44 (1947) (emphasis added).

The record here shows that there was long acquiescence in the use of Upper River Road by the public in common as of right, and without any abutting or affected landowners' permission. For example, Plaintiff Greta Doran personally observed, across her lifetime, that Upper River Road was regularly used by town residents, dump trucks, farmers, Postal Service workers, commercial carriers (UPS, FedEx, etc.), fuel delivery drivers, and town trucks. She also receives her mail by U.S. Postal Service delivery to her residential address (900 River Road) and observed that mail was also delivered to other residents on Upper River Road. The record also showed that Mr. Sheldrick and Mr. Bishop (prior to his death in late 2022) had mailboxes on the Road and received their mail there.¹

Peter Doran, a West Haven resident for over 60 years, testified that Upper River Road has been utilized by the community at large during his lifetime. This includes regular, daily use by automobile drivers, as well as bicyclists. Additionally, Mr. Fucile explained that members of the public traveled Upper River Road in order to obtain and haul gravel out of a gravel pit located on Lower River Road. Further, there was no evidence from Defendants showing that, until the more recent disputes about the Road's status, they or any other adjoining landowners on Upper River Road limited public usage of the Road, or allowed access to it only by permission.

The residents of Upper River Road were also each assigned E-911 numbers under Mr. Fucile's tenure as the Town's 911 Commissioner. The assignment of these numbers, with instructions to the residents to post the numbers visibly from the Road, is evidence that the residents received notice that the roadway would be open and maintained for use by public emergency service vehicles (e.g., fire trucks, ambulances, and the like). It is evidence of the residents' knowledge of the Road's "public use" character.

The acquiescence by the adjoining landowners to public use of the Road was coupled with their allowance of maintenance and repairs to the Road, performed at public expense. This was confirmed through the testimony by Mr. Fucile, Mr. Ellis, Mr. Doran, and Ms. Doran, who each had knowledge that the road was maintained using public funds. This included work such as snowplowing, salting or sanding, grading, ditching, and brush clearing. Such work, and the fact that it was performed by governmental entities (and not at private expense), would be reasonably obvious to any abutting or servient landowner on Upper River Road.

Based on this evidence alone, in light of the standards set forth in Newton, 115 Vt. at 44, the Plaintiffs have proven common-law dedication of Upper River Road as a public road or highway. However, finding of dedication is also supported by deeds containing references to and descriptions of the Road abutting and/or crossing private lands. See Gardner v. Town of Ludlow, 135 Vt. 87, 89 (1977) (relying on deeds to show owners' intent to dedicate); Druke v. Town of Newfane, 137 Vt. 571, 574-75 (1979); Town of S. Hero v. Wood, 2006 VT 28, ¶ 16, 179 Vt. 417; Okemo Mtn., Inc. v. Town of Ludlow Zoning Bd. of Adjustment, 164 Vt. 447, 455 (1995). Here, the Bishop and Sheldrick deeds describe the western sides of land parcels conveyed to them as following, in part, the eastern side or edge of "Bishop Falls Road," rather than the edge of any private road, private lane, or private right-of-way. Exs. 22-23. And "Bishop Falls Road" had been the name used for what is now known as Upper River Road, on many prior deeds and maps. See also Ex. 56 (professional survey recorded in town land records in 1997, of lands later conveyed to Plaintiff Peter Doran, referencing and depicting lands adjoining "Bishop Falls Road also known as River Road"); Ex. 54 (Bishop's 1996 subdivision permit application referring to property "bordered by River Road"). Mr. Bishop and Mr. Sheldrick thus purchased their properties with notice that their lands were encumbered on their western sides by a public road, called "Bishop Falls Road" or "River Road."² This supports a finding of an intent to dedicate.

Further, the 2009 deed conveying title from Mr. Doran to Plaintiff Greta Doran referred to the property as bounded on its easterly side by "West Haven Town Highway No. 14, also known as 'Bishop Falls Road' or 'River Road.'" Ex. 41. Thus, that deed recognized a pre-existing public roadway, and is thus evidence of Ms. Doran's intent, as servient landowner, to dedicate the road to public use.

Accordingly, therefore, the Court concludes that an intent to dedicate has been shown clearly by the record presented.

Moving to the issue of acceptance, the Court also finds sufficient evidence of acceptance of Upper River Road by the Town of West Haven, as a public roadway. For example, Upper River Road was repeatedly included on State Highway Maps as a public highway. Ex. 30. Given that those Maps are derived from periodic, sworn reports made by the Town's selectboard that describe—by mileage, class, condition, and location—all public roads in the Town that are eligible for State highway aid, the Maps are evidence of an intent by the Town to accept the Road as a public road. See Gardner, 135 Vt. at 90 (similarly relying on State Highway Map).³ Acceptance is also shown by testimony of three former selectboard members, who explained that the Town used public funds and resources at different time periods to regularly repair and maintain Upper River Road. Likewise, Mr. Ellis, the former road commissioner, testified as to the work on Upper River Road under his watch. And in 2009, the Town even attempted to obtain a special federal grant for improvements to its roads, including Upper River Road. Such evidence clearly shows the Town's intent to accept the Road as a public road.

Defendants' primary argument on the issue of acceptance is based on Newton, a case concerning a town's supposed acceptance of a particular bridge. That bridge had been repaired and maintained for many years at the direction of the town's road commissioner, but there was no record that such work had been authorized in writing by the town's selectboard. See 115 Vt. at 45-47. The Supreme Court declined to find an acceptance of the bridge because a state statute provided that any repair of a bridge of this type required written authorization from the town's selectboard, duly recorded in the town clerk's office. See id. at 48. Relying on Newton, Defendants argue that Plaintiffs failed to prove acceptance because they did not give documentary evidence showing that West Haven's selectboard ever approved the work on Upper River Road. However, Defendants cite no state law requiring recorded, written authorization by a selectboard for road repairs and maintenance generally. Thus, Newton is distinguishable. See Gardner, 135 Vt. at 90 (distinguishing Newton on the same grounds and finding acceptance based on general road maintenance work).

Accordingly, therefore, Plaintiffs proved at trial that Upper River Road has been established as a public road by common-law dedication and acceptance.

Under 19 V.S.A. § 32 and 19 V.S.A. § 702, the width of an existing public highway is presumed to be three rods wide—i.e., one and one-half rods on either side of the road's existing center line. See Cameron's Run, LLP v. Frohock, 2010 VT 60, ¶ 13, 188 Vt. 610 (mem.). This presumption holds "absent proof to the contrary," such as a "preserved and properly recorded original survey." Id. Additionally, that three-rod presumption applies, where, as here, the location of the traveled way has changed over time (relative to its location as originally surveyed), and/or the Road's boundaries or points of termination cannot be determined from an original survey. See Town of Ludlow v. Watson, 153 Vt. 437, 441 (1990).^4,5

Here, the original survey for Upper River Road failed to specify its width. No other properly recorded evidence has been presented rebutting the three-rod presumption. Thus, the three-rod presumption controls. However, the issue of the location of the currently existing center line of Upper River Road has been reserved by the parties, until a later stage of this case, and thus, is not adjudicated here.

ORDER

Based on the above findings and conclusions, the Court hereby orders and declares that Upper River Road in the Town of West Haven (as described above) is a public road or highway. The Court further declares that the Road has a width of three rods—one and one-half rods to either side of its currently existing center line. The location of the currently existing center line of Upper River Road remains an issue for later determination.

Electronically signed on September 4, 2024 pursuant to V.R.E.F. 9(d)