Austin v. Town of Middlesex

• Citation: 987 A.2d 307,2009 VT 102
• Decision Date: 27 October 2009
• Docket Number: No. 08-428.,08-428.
• Parties: James W. AUSTIN, Joann Flanagan, John Flanagan, Kirk Flanagan, Dawn Flanagan and Christopher Austin v. TOWN OF MIDDLESEX.
• Court: United States State Supreme Court of Vermont

987 A.2d 307

2009 VT 102

James W. AUSTIN, Joann Flanagan, John Flanagan, Kirk Flanagan, Dawn Flanagan and Christopher Austin v. TOWN OF MIDDLESEX.

No. 08-428.

Supreme Court of Vermont.

October 27, 2009.

Present: REIBER, C.J., JOHNSON, SKOGLUND, BURGESS, JJ. and CORSONES, Superior Judge, Specially Assigned.

ENTRY ORDER

¶ 1. The Town of Middlesex appeals a decision by the Washington Superior Court granting a declaratory judgment in favor of plaintiff landowners and co-tenants. In the underlying quiet-title action, plaintiffs sought to show that no "ancient road," referred to as Town Highway 15 (T.H. 15), had ever formally existed on their land. We agree and affirm, finding that the Town has failed to prove the official establishment of a town road.

¶ 2. Plaintiffs are co-owners and/or co-tenants of a 270-acre parcel of land in Middlesex, Vermont. Joann Flanagan purchased the land in 1988, and she and James Austin currently make their home there. The other plaintiffs are their adult children who have remainder interests in the land. After purchasing the land, plaintiffs learned that the Town asserted the continuing existence of T.H. 15 and claimed that it crossed through plaintiffs' property between their home and outbuildings. Plaintiffs currently use a section of this road as a portion of their private driveway, and it also serves as a private road that accesses a duly permitted subdivision created on plaintiffs' land in 1999. The Town does not dispute that the road has remained without improvement or maintenance for at least the past three decades.

¶ 3. Maps of Middlesex dating back more than 150 years indicate the location of a road running the same general course as that claimed by the Town as T.H. 15. It is first referenced in 1833 in Book B (1821-1851) of the Middlesex Town Land Records on a page recording the actions of the Town, by and through its selectmen and/or town clerk, with regard to three different roads. The entry describing the road that sparked this litigation provides:

Record of a Road in the North part of Middlesex. Beginning as follows [describing the course and length of the road]. . . . The above is a true Record as surveyed Middlesex July 6, 1833 by Eli Stone Surveyor The above described Road begins at a stake & stones on a road this day laid and surveyed through Mr Flints to Mr Roots land from George Paddlefords Road about forty rods Middlesex July 6, 1833 per me Eli Stone Recorded by me Horace Holden T Clerk

The two previous entries on the same page refer to roads surveyed in 1831. The recording of each of these roads concludes, "The above road laid out by us three rods wide and surveyed in the center by and under our direction. . . . John Vincent Elijah Holden Selectmen." Following the second entry is the statement, "The above surveys recorded by me Horace Holden Town Clerk." All three entries appear to be written by the same hand.

¶ 4. Before trial, the parties filed cross-motions for summary judgment and a hearing was held. Ruling in plaintiffs' favor, the court reasoned that the Town had failed to provide sufficient evidence to prove it had "ever successfully established a public road." The Town filed a motion to reconsider and included additional evidence from the Middlesex town records. The trial court subsequently denied that motion.

¶ 5. On appeal, the Town's only claim is that the 1833 survey,¹ along with other documents,² provide sufficient context "to justify the conclusion that the road in question is a[n official] town highway." It does not claim, nor is there any claim in the record, that any of plaintiffs' predecessors-in-title voluntarily granted the Town a right-of-way along T.H. 15. Thus, the only legal basis on which the Town could have acquired the right-of-way and established T.H. 15 is by condemnation or a confiscatory taking under the applicable laws in effect in 1833.

¶ 6. When we review a grant of summary judgment, this Court applies the same standard of review as applied by the trial court. Delta Psi Fraternity v. City of Burlington, 2008 VT 129, ¶ 5, 185 Vt. 129, 969 A.2d 54. Summary judgment is appropriate where there is no genuine issue of material fact and any party is entitled to judgment as a matter of law. Id.; V.R.C.P. 56(c)(3). As this appeal raises no contested questions of fact, we limit our review to pure questions of law. See Delta Psi, 2008 VT 129, ¶ 5, 969 A.2d 54.

¶ 7. "The procedure to be followed in laying out . . . a highway is . . . statutory and the method prescribed must be substantially complied with or the proceedings will be void." In re Mattison, 120 Vt. 459, 462, 144 A.2d 778, 780 (1958) (citing Town of Barton v. Town of Sutton, 93 Vt. 102, 103, 106 A. 583, 584 (1919)); see In re Town Highway No. 20 of Town of Georgia, 2003 VT 76, ¶¶ 6-7, 175 Vt. 626, 834 A.2d 17 (mem.); In re Bill, 168 Vt. 439, 442, 724 A.2d 444, 446 (1998). When interpreting any law, this Court begins by examining the plain language of the statute in order to give effect to the legislative intent. See Delta Psi, 2008 VT 129, ¶ 7, 969 A.2d 54. Our prior interpretations of a statute aid us in determining the legislative intent. See Lane v. Town of Grafton, 166 Vt. 148, 152, 689 A.2d 455, 457 (1997).

¶ 8. In 1833, the year in which the Town argues T.H. 15 was laid out, Vermont had three legal requirements for the official creation of a road. First, "[e]very highway or road [to] be laid out or opened [had to] be actually surveyed, and a survey thereof made out, entered and recorded, in the town clerk's office, where such highway or road lies." Laws of Vermont, 1824, Ch. LIII, No. 1, § 1. Second, the road had to be officially "laid out" through a formal act by the selectboard or another official body and duly recorded. See Young v. Town of Wheelock, 18 Vt. 493, 495 (1846) ("The evidence, that a road has thus been laid out and opened for travel, is usually to be found on the records of the town. The survey, the act of the selectmen, or commissioners, together with the certificate, that the road has been opened, are required to be recorded."); Patchin v. Doolittle, 3 Vt. 457, 459 (1831) (road cannot be opened without being "laid out"). Third, the selectboard had to issue a "certificate of opening" attesting that the town had in fact physically created and put into public use the road as surveyed and "laid out." Laws of Vermont, 1824, Ch. LIII, No. 10 § 2 ("[W]henever the selectmen of any town shall open any road, heretofore, or hereafter, laid out, they shall cause a certificate thereof, signed by them, or a major part of them, to be forthwith recorded in the town clerk's office. . . ."); see Kelly v. Town of Barnard, 155 Vt. 296, 302-03, 583 A.2d 614, 618 (1990); Young, 18 Vt. at 495; Patchin, 3 Vt. at 458 (A road is "opened by the select men, in the way pointed out by statute; to wit, by their causing a certificate, that it is thus opened, to be recorded in the town clerk's office.").

¶ 9. It is clear from the town records quoted above and from the evidence submitted at trial that the Town could not show any official act by the selectmen "laying out" T.H. 15 in 1833 or otherwise legally establishing the road at any subsequent point.³ Apparently the road described as T.H. 15 was surveyed and recorded in 1833, but there is no proof that the selectboard officially authorized that road as a town highway. Indeed, on the evidence provided, it does not appear that the selectboard acted at all in 1833 with regard to the described road. Rather, the entry the Town relies upon only seems to record a road survey by one Eli Stone and provides no evidence of official sanction. In contrast to the survey recording the course and direction of T.H. 15, the two prior surveys that share the same page in the town records clearly state that those roads were "laid out by us [the selectmen] . . . and surveyed . . . under our direction." Such entries demonstrate that the selectmen knew the legal requirements for formally establishing a town road, and there is no proof that such requirements were followed in the entry for the road in dispute. Equally important, the same town clerk recorded all three entries on that page of the town records, and only the...