Berge v. State

• Decision Date: 09 November 2006
• Docket Number: No. 05-437.,05-437.
• Citation: 2006 VT 116,915 A.2d 189
• Parties: David BERGE v. STATE of Vermont.
• Court: Vermont Supreme Court

915 A.2d 189

2006 VT 116

David BERGE v. STATE of Vermont.

No. 05-437.

Supreme Court of Vermont.

November 9, 2006.

Robert A. Gensburg of Gensburg, Atwell & Broderick, St. Johnsbury, for Plaintiff-Appellant.

William H. Sorrell, Attorney General, and Jacob A. Humbert, Assistant Attorney General, Montpelier, for Defendant-Appellee.

Present: REIBER, C.J., DOOLEY, JOHNSON, SKOGLUND and BURGESS, JJ.

¶ 1. DOOLEY, J.

Plaintiff David Berge appeals from a summary judgment of the Washington Superior Court rejecting his claim to an easement by necessity on the ground that his property was accessible by navigable water. For the reasons set forth below, we disagree with the trial court ruling, and accordingly reverse and remand for further proceedings.

¶ 2. The material facts are not in dispute. In 1959, Florence Davis subdivided her estate, conveying 7,001 acres to the State of Vermont. That conveyance comprises the majority of the acreage of what is now the Bill Slydak Wildlife Management Area (WMA). The 7,001 acres did not represent all of Davis's holdings in the area; she reserved, among other parcels, a lot of approximately thirty-eight acres on the western shore of Norton Pond, known as the Norton Pond Exclusion. The 1959 deed reserved no express easement for access to the Norton Pond Exclusion across the land conveyed to the State.

¶ 3. In 1961, Davis conveyed the Norton Pond Exclusion to George McDonald and Bruce Washburn. The 1961 deed again contained no reference to any easement across the WMA. McDonald and Washburn subdivided the Norton Pond Exclusion into eighteen lots, reserving a right of way for each lot over every other lot in the subdivision. In 1997, plaintiff purchased two of the lots from a successor in title to McDonald and Washburn. Since then, plaintiff has regularly accessed the property by car over a gravel road that begins on Route 114, runs across land formerly owned by the Brown Company (a stranger to Davis's original title), and then across the WMA to his property.¹ Although plaintiff owns a fishing boat which he launches in the spring from a public boat-access on the opposite shore, he stated without contradiction that he does not use the boat to access the property.

¶ 4. The instant controversy arose when the State placed a gate across the Route 114 access road, depriving plaintiff of overland access to his property. Plaintiff filed a complaint in superior court, seeking to enjoin the State's obstruction. He asserted, among other claims, that the 1959 deed had created an easement by necessity for the benefit of his property over the land conveyed to the State. The State moved for summary judgment, maintaining that plaintiff's ability to access his property by water, across Norton Pond, defeated a finding of necessity. The trial court agreed, and accordingly granted the motion and entered judgment in favor of the State. This appeal followed.

¶ 5. We review a summary judgment applying the same standard as the trial court. Kelly v. Lord, 173 Vt. 21, 42, 783 A.2d 974, 990 (2001). To prevail, the moving party must demonstrate that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. In re Champlain Oil Co., 2004 VT 44, ¶ 10, 176 Vt. 458, 852 A.2d 622; V.R.C.P. 56(c). In determining whether an issue of material fact exists, the non-moving party receives the benefit of all reasonable doubts and inferences. Robertson v. Mylan Laboratories, Inc., 2004 VT 15, ¶ 15, 176 Vt. 356, 848 A.2d 310.

¶ 6. Our common law has long recognized that "when, as a result of the division and sale of commonly owned land, one parcel is left entirely without access to a public road, the grantee of the landlocked parcel is entitled to a way of necessity over the remaining lands of the common grantor or his successors in title." Traders, Inc. v. Bartholomew, 142 Vt. 486, 491, 459 A.2d 974, 978 (1983); see Smith v. Higbee, 12 Vt. 113, 123 (1840) (recognizing easements of "necessity" where essential to the "enjoyment of the principal thing conveyed"); Willey v. Thwing, 68 Vt. 128, 131, 34 A. 428, 428-29 (1896) (acknowledging existence of easement where "necessary to the enjoyment of the land"). In Okemo Mountain, Inc. v. Town of Ludlow, we outlined the basic requirements for an easement by necessity as: "(1) there was a division of commonly owned land, and (2) the division resulted in creating a landlocked parcel." 171 Vt. 201, 206, 762 A.2d 1219, 1224 (2000). The easement is said to remain in effect so long as the necessity exists. Traders, 142 Vt. at 493, 459 A.2d at 979.

¶ 7. Although plaintiff opposed the State's motion here on the ground that his property — having originated from a division of commonly owned land that resulted in a parcel lacking access to a public road — satisfied the fundamental requirements for an easement by necessity, the trial court did not address these criteria. Instead, the court concluded that plaintiff's claim was defeated solely by virtue of the fact that he could reach the property by water. In so holding, the court stated that "`necessity' is the operative term in the doctrine," and explained that it could not recognize an easement "merely because water access is not as desirable as the road access that is sought." The court relied on a few early Vermont decisions characterizing the requisite standard as one of "strict necessity," as well as several out-of-state decisions adhering to the view that water access, unless completely useless, bars a finding of necessity.

¶ 8. While the court's conclusion is understandable given the relatively little attention accorded the easement-by-necessity doctrine in recent years, it is nevertheless erroneous in several respects. The term "strict necessity" first appeared in our law in Howley v. Chaffee, 88 Vt. 468, 474, 93 A. 120, 122 (1915). The issue there, however, was not whether the Court should apply a rule of "strict" or "loose" necessity in easement-by-necessity cases. Indeed, there was no dispute that the plaintiff could not show necessity because his parcel "front[ed] on one of the principal streets of the city." Id. at 473, 93 A. at 122. The issue instead was whether a reservation of an easement by implication, a separate doctrine, required the element of necessity as defined for an easement by necessity, or some other standard easier to meet. See id. The answer was that the implied reservation required necessity as defined in the easement by necessity cases, particularly in Dee v. King, 73 Vt. 375, 50 A. 1109 (1901). To the extent the Court used the word "strict," it was to compare the elements in the different theories; that is, the plaintiff strictly had to show necessity and nothing less. See Poronto v. Sinnott, 89 Vt. 479, 481-82, 95 A. 647, 648 (1915) (summarizing holding in Howley that "strict necessity" is required in a case of easement by implied reservation).

¶ 9. In Dee, the plaintiff also was able to access his property, but only over a hill that could not "be crossed without making several turns, and then only with very light loads." 73 Vt. at 377, 50 A. at 1110. The Court drew a fundamental distinction — to which we have repeatedly returned — between "extreme inconvenience," which would not justify an easement by necessity, and "necessity, and not convenience, that gives the right." 73 Vt. at 378, 50 A. at 1110; accord Tallarico v. Brett, 137 Vt. 52, 58, 400 A.2d 959, 963 (1979); Howley, 88 Vt. at 478, 93 A. at 122. As Dee explained, the plaintiff's access to his property was "inconvenient and expensive" but not "impracticable," and therefore was not so deficient as to invoke the doctrine. 73 Vt. at 378, 50 A. at 1110. Although definitions in other jurisdictions vary, it is noteworthy that states requiring strict necessity often employ similar language. See, e.g., Johnston v. Shoults, 160 S.W.3d 440, 442 (Mo.Ct.App.2005) ("Strict necessity has been interpreted to mean the absence of a reasonably practical way to and from plaintiff's land ...."); Watson v. Dundas, 332 Mont. 164, 136 P.3d 973, 979 (2006) ("Strict necessity means a lack of practical access to a public road for ingress and egress.").

¶ 10. Therefore, if there is a distinction to be drawn from our prior decisions, it is between mere inconvenience and necessity, with a lack of reasonably practical access required to find an easement by necessity. Thus understood, the record here leaves no doubt that without use of the road across State land, plaintiff would have no reasonably consistent, practical means of reaching his property; rather, he would be subject to the constant vicissitudes of motor boats, weather, and water conditions. In addition, he would have virtually no access for those periods of the year when the pond could not be safely traversed because of ice or snow.²

¶ 11. The real lesson of these cases, however, lies in the nature of the property interest protected. On this point, the holding of Traders is significant. As we there explained, "since the easement is based on social considerations encouraging land use, its scope ought to be sufficient for the dominant owner to have the reasonable enjoyment of his land for all lawful purposes." 142 Vt. at 494, 459 A.2d at 979-80. Earlier cases foreshadow this emphasis on land use protection. See Thwing, 68 Vt. at 131, 34 A. at 428-29 (recognizing that an easement must be "necessary to the enjoyment of the land"); Wiswell v. Minogue, 57 Vt. 616, 621 (1885) (holding that easement arises from the "necessity of a right of way to the reasonable use and enjoyment of land"); Higbee, 12 Vt. at 123 (finding that easement requires showing of necessity "to the enjoyment" of the property).

¶ 12. Plainly, without use of the road, plaintiff would lack any practical means of access for the "reasonable enjoyment of his land." While the property may be accessible by water for part of the year, the State made no real claim — and the trial court here made no finding —...