Carroll v. Casey

• Docket Number: 23-CV-02138
• Decision Date: 05 December 2023
• Citation: 2023 Vt Super 120501
• Parties: John Carroll et al v. Silas Casey et al
• Court: Superior Court of Vermont

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2023 Vt Super 120501

John Carroll et al
v.
Silas Casey et al

No. 23-CV-02138

Superior Court of Vermont, Civil Division, Bennington Unit

December 5, 2023

ENTRY REGARDING MOTION

DAVID BARRA, SUPERIOR COURT JUDGE

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

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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

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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 fifteenyear 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

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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...