Clark v. Aqua Terra Corp.

• Citation: 329 A.2d 666,133 Vt. 54
• Decision Date: 03 December 1974
• Docket Number: No. 82-73,82-73
• Parties: Lockwood L. CLARK and Claire B. Clark v. AQUA TERRA CORPORATION.
• Court: Vermont Supreme Court

Page 666

329 A.2d 666

133 Vt. 54

Lockwood L. CLARK and Claire B. Clark v. AQUA TERRA CORPORATION.

No. 82-73.

Supreme Court of Vermont.

Dec. 3, 1974.

James D. Foley, Yandell, Page & Archer, Burlington, for plaintiffs.

Daniel J. Lynch, Kissane & Heald Associates, St. Albans, for defendant.

Before BARNEY, C. J., SMITH, KEYSER and DALEY, JJ., and SHANGRAW, C.J. (Ret.), Assigned.

BARNEY, Chief Justice.

This is a dispute concerning a right-of-way overland to a lighthouse. The position of the defendant would cut off all access except by water or over winter ice. The trial court, after hearing, made findings and, by order, established a right-of-way in the plaintiffs by prescription, based on more than fifteen years of adverse use. A permanent injunction barring interference by the defendant corporation was issued, and appealed here.

The property involved is a point of land known as Windmill Point, bounded on the east, south, and west by waters of Lake Champlain. The north side is entirely bounded by land of the defendant, and the only land access to the lighthouse premises is over those lands now owned by the defendant. The entire property including Windmill Point was once owned as a unit by one Danford Mott in 1857. On May 20, 1857, he sold the extreme southerly portion, including the point, to the United States, retaining the balance. A lighthouse was built, and the lighthouse keepers and others who lived on the point traveled the westerly shore across the Motts' land for access to Alburg. Apparently the records disclosed no grant to the United States of any right-of-way for access to the lighthouse property, even though such access was actually had over the grantors' land. This traveled way connected to the end of a town road that came to the west shore of the peninsula.

Under the law of Vermont the circumstances of this grant from the Motts to the United States would generate in the United States a right-of-way by necessity. Willey v. Thwing, 68 Vt. 128, 130-131, 34 A. 428 (1896); Pennock v. Goodrich, 104 Vt. 134, 139, 157 A. 922 (1932). This right would attach itself to the lighthouse premises and pass to succeeding owners.

The findings desclosed that one Peller purchased the land from the United States in 1946. He conveyed to one Bayer in 1949. No mention of a right-of-way was made in either deed. Bayer owned and used the property from 1949 until 1963. During that entire time Bayer used the access route from the end of the town road across the intervening land to the lighthouse. In 1963 Bayer sold the premises to the present plaintiffs. The deed from Bayer to the Clarks did not contain any reference to a right-of-way over the premises then owned by one Prairie.

Meanwhile, the remaining Mott property had remained in the family until sold in 1944 to Prairie. The deed from the Motts to Prairie made no reference to any reserved right-of-way to the United States, at that time still the owner of Windmill Point. Mr. Prairie installed a gate in the roadway leading from the point to the town road, but the gate was not locked and was for the purpose of keeping grazing cattle enclosed. The defendant corporation is a successor in title to Prairie.

The trial court found that, 'At least since the time of Emil Bayer and subsequently during the time of the plaintiffs herein, the access to the home of Bayer and Clark has been over the land of Prairie; such use being open, notorious, and continuous.' The court went on to state that it could not find that Mr. and Mrs. Clark abandoned their right to cross the Prairie property as access to their house on Windmill Point.

The defendant challenges these findings and also the court's failure to find as it requested with respect to the nature of the use of the right-of-way by the plaintiffs and their predecessors in title. It is the defendant's contention that the use of the right-of-way was based on permission and also on the understanding that the road was a town road. These positions relative to the facts in the case would tend, in the eyes of the defendant, to compromise the claim of the right-of-way by prescription. Perhaps the short answer is to point out that the trial court could not find these claims to be facts, and the weight of the evidence was for that court.

But assuming the facts to be as the defendant urges them, the result in this case would not be affected. The doctrine of adverse possession creates a prescriptive right based on long, continued usage against the holder of legal title. It is sometimes described as based on a presumed grant that becomes incontestable after the passage of the statutory time. See Russell v. Pare, 132 Vt. 397, 321 A.2d 77 (1974).

In this case, however, the...