Benson v. Hodgdon

Decision Date24 February 2010
Docket NumberNo. 09-076.,09-076.
Citation2010 VT 11,992 A.2d 1053
PartiesRonald BENSON, Betty Benson, Barry Benson, Edith Benson and the Town of Royalton v. Perry HODGDON, Carol Hodgdon, John Michael Taylor, Danielle Taylor, Ellen L. Frost, Jeffrey S. Slack, Monica Clark, Rodney Clark, and Warren E. Preston.
CourtVermont Supreme Court

COPYRIGHT MATERIAL OMITTED

Present: JOHNSON, SKOGLUND, BURGESS, JJ. and JOSEPH, District Judge, BENT, Superior Judge, Specially Assigned.

ENTRY ORDER

¶ 1. This ancient roads case stems from a declaratory judgment by the Windsor Superior Court in favor of the Town of Royalton and plaintiffs Ronald Benson, Betty Benson, Barry Benson and Edith Benson, affirming the existence of an old town highway across defendants' and plaintiffs' land. Defendants Perry Hodgdon and Carol Hodgdon1 appeal this finding on the grounds that (1) the plaintiffs failed to meet their burden of proof as to the existence and location of the road; (2) the Town had abandoned the road through disuse and defendants now hold title through adverse possession; and (3) the trial court's declaratory judgment did not sufficiently clarify the rights of the parties because it did not require a new survey of the road, laying out its metes and bounds. We affirm.

¶ 2. While the record in this case is rife with ancient and modern surveyors' terminology, the facts on appeal are relatively straightforward. Plaintiffs own an unimproved tract of land in the Town of Royalton. It is bounded to the north by defendants' land and to the south by an abutting landowner. Though plaintiffs have some access to the tract from the west via an overgrown and potentially impassable skid road leading to Vermont Route 14, they had previously used an old field road across defendants' land to enter their property. At some point, defendants refused to permit plaintiffs to use this field road and plaintiffs sought a declaratory judgment that they had a prescriptive easement along the field road across defendants' land. Alternatively, including the Town as a defendant, plaintiffs claimed that the road at issue in this appeal, an existing lane to the west of the field road but still on defendants' property (the Lane), was in fact an unmaintained Class 4 public highway properly surveyed and laid out by the Town over 200 years ago (the Road). A jury returned a defendants' verdict on the prescriptive easement claim, and this case followed by means of an amended complaint. The Town did not participate in the initial phase of this action, and the trial court entered a default judgment against it. The court later granted the Town's motion to set aside the default judgment, and the Town joined plaintiffs in claiming that a public highway exists across defendants' land. As part of their prayer for declaratory relief, plaintiffs requested a declaration of the course of the highway and an order requiring defendants "to remove the pond and barn and restore the town highway to its original condition."

¶ 3. A formal survey of the Road was recorded in 1804 in the Royalton town land records.2 This survey describes two sections of the Road, one trending south from a point just to the north of Post Farm Road and terminating "westerly of Wm Bowles now dwelling house about 46 rods," and the other running south from there to what is now Slack Hill Road. The starting point of the northern section of the Road is described as "a beach sic tree on the west line of Lot No. 13," and it continues south from there across Post Farm Road until it ends near the former Bowles homestead. The part of the Road at issue is predominantly this northern section—this is the portion of the Road that crosses defendants' land and provides access to plaintiffs' property—and of that, only the portion of the Road running south from Post Farm Road is of import.3 The survey also includes a short portion of the southern section of the Road, since the point where the two sections described in the 1804 survey meet is on plaintiffs' property.

¶ 4. Plaintiffs contend that the Road as recorded in the survey follows the same physical course as the Lane, which runs generally south from Post Farm Road and eventually arrives at Slack Hill Road after traversing defendants', plaintiffs', and other landowners' property. Specifically, the Lane departs from Post Farm Road and passes through a gate and into defendants' barnyard where it runs under a ramp used to access the upper floor of defendants' barn, built around 1907. Beyond that, the Lane drops steeply and passes around a pond built by defendant Perry Hodgdon's father in 1966 directly in the old path of the Lane. From the pond, it continues through defendants' pasture, running between two rows of old maple trees to a gate separating defendants' property from plaintiffs'. It then continues south across plaintiffs' property and through another gate at the boundary between plaintiffs' land and that of an adjoining landowner to the south.

¶ 5. Until this law suit, the Town's attitude towards the Lane appears to have been indifferent. There is no evidence on the record that the Town objected to the "high drive" ramp passing over the Lane and into the barn, and no evidence that it objected to the erection of the various gates across the Lane. At the time of the pond's construction less than fifty years ago, the Town did not object to its placement directly in the roadway. In the 1970s, plaintiffs demanded that the Town maintain the Lane; the Town took no action.

¶ 6. During the ensuing bench trial, the central conflict between the parties focused on the physical location of the Road on defendants' land. Both parties brought in local surveyors as expert witnesses. Plaintiffs' expert conducted a site inspection of the property in question. The expert assumed the beech tree which marked the start of the northern section of the Road had disappeared in the intervening 200-plus years, though she recognized that one could discern the tree's location based on other records. Accordingly, she focused her investigation on signs of the Road south of Post Farm Road, on defendants' and plaintiffs' property. She ultimately concluded that the Lane and the Road were one and the same. Central to her opinion was the discovery of the Bowles' cellar hole—located after the conclusion of the jury trial—to the east of plaintiffs' property. The cellar hole represented the dividing point between the northern and southern sections of the Road, and with this point fixed, plaintiffs' surveyor was able to match the physical evidence on the ground to the 1804 survey with minimal deviation. This result, however, required ignoring the first call of the survey, the beech tree, as including that point would have made the rest of the physical evidence of the Road not fit the survey. In contrast, defendants' surveyor opined that the Lane and Road were distinct. His opinion was based on the likely location of the beech tree and other physical evidence tending to show the Lane was for private use and the Road ran a separate albeit parallel course. His conclusions did not take into account the location of the then-newly discovered Bowles' cellar hole.

¶ 7. Ruling in favor of plaintiffs and the Town, the trial court found that the Road established in the 1804 survey

from the point it leaves Post Farm Road, is one and the same road as the lane ... going southerly through defendants' barnyard, thence southerly to the gate at plaintiffs' property line, thence southerly to the gate at the adjoining landowners' property line, thence southerly connecting to the existing Slack Hill Road.

In so holding, the trial court relied on various old maps and local property deeds referencing the Road. Most importantly, it accepted the expert testimony of plaintiffs' surveyor and her opinion regarding physical evidence on the ground which linked the surveyed road to the existing lane. By accepting this view, the court also "disregarded the first call in the 1804 survey," the old beech tree, because determining the location of a now 200 year-old tree was a surveying challenge and inclusion of that point alone would have pivoted the 1804 survey calls away from the abundant physical evidence of the Road. The court also noted that "although there is no visible evidence of a road north of Post Farm Road, there is considerable evidence of one to the south of Post Farm Road."

¶ 8. Having found for the plaintiffs, the court concluded that the Road "follows the existing signs of the roadway and is three rods in width." The court noted that the Road "wanders" from the survey calls as it crosses defendants' and plaintiffs' property, but any deviation "is within the three rod right of way." The only portion where the deviation was greater than three rods was the area south of the Bowles' cellar hole where the physical evidence on the ground "varies from the survey's calls by about 150 feet." For this section, the court adopted the survey maps admitted into evidence as representative of the Road's official course. In concluding, the court held that the Road "is open to the general use of the public, consistent with the laws of the State of Vermont and the Town of Royalton. Any use of this land inconsistent with the existence of a town highway in this location without the permission of the Town shall be discontinued forthwith."

¶ 9. On appeal, defendants raise three challenges to the trial court's ruling. First, they argue that the plaintiffs did not prove, by a preponderance of the evidence, that a public road existed and was located on their land, and thus the trial court erred in so finding. Second, they claim that the Town had abandoned the Road and defendants gained ownership of it through adverse possession. Finally, they maintain that the court's order failed to meet the requirements of the Declaratory Judgments Act, 12 V.S.A. § 4711 et seq., because it lacked sufficient clarity. We address each contention in turn.

¶ 10. Our...

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