Bartlett v. Roberts

• Decision Date: 10 March 2020
• Docket Number: No. 2019-197,2019-197
• Citation: 2020 VT 24
• Court: Vermont Supreme Court
• Parties: Holly Bartlett v. John Roberts and LaLauni Rawls

2020 VT 24

Holly Bartlett v. John Roberts and LaLauni Rawls

No. 2019-197

Supreme Court of Vermont

October Term, 2019

March 10, 2020

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. Readers are requested to notify the Reporter of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made before this opinion goes to press.

On Appeal from Superior Court, Chittenden Unit, Civil Division

Helen M. Toor, J.

Brian P. Monaghan and Christian S. Chorba of Monaghan Safar Ducham PLLC, Burlington, for Plaintiff-Appellant.

Michael S. Gawne of Cahill, Gawne, Miller & Manahan, P.C., St. Albans, for Defendants-Appellees.

PRESENT: Reiber, C.J., Robinson and Eaton, JJ., and Dooley, J. (Ret.) and Pearson, Supr. J. (Ret.), Specially Assigned

¶ 1. PEARSON, Supr. J. (Ret.), Specially Assigned. Plaintiff in this quiet-title action seeks to prohibit defendants from using a road that passes through plaintiff's property to access defendants' adjacent property. The civil division of the superior court granted summary judgment to defendants because it determined that the route was a public highway established by the town in 1800 that was never discontinued. We affirm.

¶ 2. The following facts were undisputed for purposes of summary judgment. Plaintiff Holly Bartlett owns real property consisting of 124.5 acres with a single-family home on Plains Road in Westford, Vermont. She acquired her property in 2005. In 2017, defendants purchased a vacant forty-two-acre parcel adjacent to plaintiff's property. Defendants' property does not abut Plains Road. Defendants access their property using an unnamed gravel-and-dirt road that crosses over plaintiff's property to Plains Road. For the purposes of this opinion, we refer to the gravel-and-dirt road as Plains Road Extension.

¶ 3. Plains Road Extension was surveyed and laid out and a description of its breadth, course, and distance was recorded in the town land records in 1800. However, the road does not currently appear on the Westford highway map and did not appear on the map as of July 1, 2010. The existing road crosses plaintiff's property within the area that corresponds to the 1800 description and continues to a point approximately midway across defendants' property, where a trail diverges from the described route.

¶ 4. In September 2009, the town's Ancient Roads Committee inspected plaintiff's and defendants' properties. The committee noted: "[E]vidence found (road, cars, foundation) from Plains Road to top of ridge. Not worth retaining." The town selectboard did not add Plains Road Extension to the town highway map by July 1, 2015. Plains Road Extension was never designated as a legal trail and was never formally discontinued by the town pursuant to 19 V.S.A. § 771.

¶ 5. Defendants purchased their property from Robert Krosky, whose family purchased the land in 1962 or 1963. At his deposition, Krosky testified that his family built a camp on the property and used Plains Road Extension to access the property. He testified that in the 1960s and 1970s they could drive all the way up Plains Road Extension to their camp using a variety of vehicles including jeeps, a motor scooter, and a motor home. Other people who were not part of the family traveled up the road on horseback and on all-terrain vehicles. Krosky testified that there was a barbed-wire gate across the road at his property line. The family would remove the wire to access the property when they came up for weekends and replace it when they left. The camp burned down in 1973 or 1974. After Krosky took ownership of the property from his mother in 1977, he used the property less and did not maintain the road. He testified that he had rarely visited the property in recent years and the road had become overgrown and difficult to navigate with hisvehicle. Krosky periodically had the land logged to improve the forest. As part of their work on the land, the loggers would repair the road. The last logging operation occurred in 2012.

¶ 6. Plaintiff's predecessor-in-interest, Francis Gravel, owned plaintiff's parcel from 2001 to 2005. Gravel testified in a deposition that he never saw the owner of defendants' parcel. He stated that it was "pretty rare" to see anyone else use Plains Road Extension. Once, a hiker asked his permission to use the road. Another time, he saw a group of women on horses heading across his property toward Plains Road. Gravel stated that beyond his driveway, Plains Road Extension was overgrown and not passable by a passenger car, but could be accessed using an all-terrain vehicle. He was not aware that Plains Road Extension was potentially a town road.

¶ 7. In July 2018, after defendants sought a zoning permit to spread gravel on the road, plaintiff filed a petition seeking a declaratory judgment that defendants had no right to use Plains Road Extension.¹ After discovery, the parties filed cross motions for summary judgment. Defendants argued that the above facts demonstrated that Plains Road Extension was a town highway that was never discontinued and that they had a right to use it to access their property. In the alternative, they claimed that they had a private right-of-way over the road pursuant to 19 V.S.A. § 717(c) and common law. Plaintiff argued that although the town laid out a road at the location of Plains Road Extension in 1800, it was discontinued by operation of Vermont's ancient-roads law—also known as Act 178—because the town did not include it on the town highway map by July 1, 2015. Plaintiff further contended that § 717(c) did not apply and defendants did not have an easement by necessity or a prescriptive easement.

¶ 8. The trial court held that Plains Road Extension was not discontinued by operation of Act 178 because there was clearly observable physical evidence of its use as a highway and therefore it was not an "unidentified corridor" to which the Act applied. See 19 V.S.A.§ 302(a)(6)(A). Accordingly, it concluded the road was not automatically discontinued by the town's failure to include it on the town highway map by July 1, 2015. The court rejected plaintiff's argument that there had to be evidence of public use for the road to be a "highway." It reasoned that under 19 V.S.A. § 1(12), it was sufficient for the road to be laid out in the manner prescribed by statute to qualify as a highway. The court concluded that Plains Road Extension was a town highway that defendants had a right to use and granted summary judgment in their favor. This appeal followed.

¶ 9. We review a summary-judgment decision without deference, using the same standard as the trial court. Tillson v. Lane, 2015 VT 121, ¶ 7, 200 Vt. 534, 133 A.3d 832. Summary judgment is appropriate only when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Collins v. Thomas, 2007 VT 92, ¶ 6, 182 Vt. 250, 938 A.2d 1208; V.R.C.P. 56(a). "In applying this standard, we give the nonmoving party the benefit of all reasonable doubts and inferences." Doe v. Forrest, 2004 VT 37, ¶ 9, 176 Vt. 476, 853 A.2d 48.

¶ 10. At issue is whether Plains Road Extension is an "unidentified corridor" that was discontinued by operation of Act 178. Under Vermont common law, once a town properly laid out a highway according to statute, it continued to legally exist indefinitely even if it was never used. Capital Candy Co. v. Savard, 135 Vt. 14, 16-17, 369 A.2d 1363, 1365-66 (1976) (holding mere abandonment insufficient to discontinue public highway because statutory procedure for discontinuance must be followed); cf. Lague, Inc. v. Royea, 152 Vt. 499, 501, 568 A.2d 357, 358 (1989) ("We have been clear that an easement acquired by deed cannot be extinguished by nonuse alone, no matter how long it continues."). In 2006, following several high-profile disputes between towns and landowners over title to ancient municipal rights-of-way, the Legislature passed Act 178 "to quell the uncertainty that the existence of ancient roads places on private property rights." Town of Bethel v. Wellford, 2009 VT 100, ¶ 7, 186 Vt. 612, 987 A.2d 956 (mem.); see E.Goldwarg, Note, Known Unknowns: Ancient Roads in Northern New England, 33 Vt. L. Rev. 355, 356-57 (2008) (describing history preceding passage of Act 178).

¶ 11. Act 178 created a procedure for towns to locate "unidentified corridors" and either discontinue or reclassify them. 2005, No. 178 (Adj. Sess.), § 1. As amended, the Act defined unidentified corridors as follows:

Unidentified corridors are town highways that:

(i) have been laid out as highways by proper authority through the process provided by law at the time they were created or by dedication and acceptance; and

(ii) do not, as of July 1, 2010, appear on the town highway map prepared pursuant to section 305 of this title; and

(iii) are not otherwise clearly observable by physical evidence of their use as a highway or trail; and

(iv) are not legal trails.

2007, No. 158 (Adj. Sess.), § 2 (codified at 19 V.S.A. § 302(a)(6)(A)).

¶ 12. The Act provided that if subsections (i) and (ii) of § 302(a)(6)(A) were met—that is, if a town had properly laid out a highway but it was not on the town highway map as of July 1, 2010—the town selectboard or its appointee could enter private land to determine whether clearly observable physical evidence existed. 19 V.S.A. § 302(a)(6)(B). When the town located an unidentified corridor, it could reclassify it as a class 1, 2, 3, or 4 highway or a legal trail using the statutory reclassification procedure. Id. § 302(a)(7). If the town did not reclassify an unidentified corridor by July 1, 2015, the unidentified corridor would be discontinued and the right-of-way would belong to the owner of the adjoining land. Id. § 302(a)(6)(G). As amended, the Act also created a procedure...