Daiello v. Town of Vernon

• Decision Date: 22 July 2022
• Docket Number: 2021-017
• Parties: Steven Daiello v. Town of Vernon v. Dale A. Merritt and Brenda Merritt
• Court: Vermont Supreme Court

2022 VT 32

Steven Daiello
v.
Town of Vernon
v.
Dale A. Merritt and Brenda Merritt

No. 2021-017

Supreme Court of Vermont

July 22, 2022

On Appeal from Superior Court, Bennington Unit, Civil Division, Cortland Corsones, J.

James W. Swift, Kevin E. Brown and Vincent J. Todd of Langrock Sperry &Wool, LLP, Middlebury, for Plaintiff-Appellee Daiello.

Kevin L. Kite and James F. Carroll of Carroll, Boe, Pell &Kite, P.C., Middlebury, for Defendant-Appellee Town of Vernon.

Andrew C. Boxer and Oliver A. Abbott of Boxer Blake &Moore PLLC, Springfield, for Defendants-Appellants Merritts.

PRESENT: Reiber, C.J., and Dooley, J. (Ret.), and Morris, Manley, and Van Benthuysen, Supr. JJ. (Ret.), Specially Assigned

REIBER, C.J.

¶ 1. This case involves an ongoing dispute over a road in Vernon, Vermont. Defendants Brenda and Dale Merritt (neighbors) challenge the superior court's decision granting summary judgment to plaintiff Steven Daiello (landowner) and defendant Town of Vernon. They argue that the court erred by concluding (1) that Stebbins Road was properly established as a public road and (2) that landowner has a common-law right of access to his property over Stebbins Road that prevents him from proving that the Town interfered with his right to access his property. We affirm.

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I. Facts and Procedural History

¶ 2. The instant dispute requires us to recount the history of Stebbins Road in some detail. We then review the current landownership, prior litigation regarding the road, and the current order on appeal. The following facts are undisputed and drawn from the parties' statements of facts submitted in connection with the motion for partial summary judgment.

A. History of Stebbins Road

¶ 3. The Township of Hinsdale was established in 1753, stretching over both sides of the Connecticut River. The town was later divided between New Hampshire and Vermont with the river as a boundary. In 1802, the portion of the town on the Vermont side of the river was renamed Vernon.^[1]

¶ 4. In 1797, a fire destroyed the home of the Vernon Town Clerk. The fire destroyed most of the town records, including the land records.^[2] The Vernon Land Records contain a few records predating the 1797 fire that were not stored at the clerk's home and were rerecorded in the early 1800s. Town records memorialized after the fire describe town meetings held between 1798 and 1801. During these meetings, the Town discussed raising money for town roads and discontinuing one road.

¶ 5. In 1801, County Surveyor Samuel Sheppardson recorded eleven consecutive road surveys in Book 1 of the Vernon Land Records, dated between April 27 and May 4. Each survey contains language stating "at the request and under the special direction of the Select Men of the Town of [Vernon] I surveyed a town road," or similar language. None of the surveys were signed by the selectboard. After the set of eleven surveys, Book 1 contains another road surveyed by

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Sheppardson. Beneath the survey, the record provides: "Then we the subscribers layed out the above mentioned road as therein described," signed by the selectboard on April 29, 1801. Beneath the signatures, it further provides: "The above is a true copy of the original and recorded September 1st 1801," signed by the town clerk.

¶ 6. At issue in this case is Stebbins Road. The survey describing Stebbins Road, one of the set of eleven, provides:

Windham County, [Vernon], April 28, 1801. Then under the Special Directions of the Select Men of the Town of [Vernon] I surveyed a Town Road called Number Three being two rods wide &lying one rod on each side of a line beginning at the Sign Post on the West side of the County road &about Eight rods North of the Saw mill owned by Jonathan Hunt Esq. and from thence by Eliakim Stebbins to the East line of Guilford near Mr. Gain's Saw Mill [course and distance description] to Guilford East line. Attest Samuel Sheppardson County Surveyor

All parties agree that the "Town Road called Number Three" refers to Stebbins Road.

¶ 7. At an 1806 town meeting, the Town considered two provisions related to Stebbins Road: (1) "To see if the Town will open a road through Eliakim Stebbins' land or any part of it" and (2) "To see if the Town will discontinue the road or any part of it that goeth through Eliakim Stebbins' land." The Town voted to create a committee to "treat with Eliakim Stebbins relative to a road through his land (viz) Jonathan Hunt, Abner Harris and the present Selectmen, and empowered them to act discretionally, either to open the road, or discontinue it, or any part of it, and to lay out a new road if they think fit." The records do not indicate the outcome of that negotiation, but in 1809, the town considered another provision relating to the road: "To see if the Town will discontinue the road by Eliakim Stebbins' and lay one by Samuel Brook to said Warren's." The Town "voted to dismiss without acting thereon."

¶ 8. In 1810, at the request of the Governor, the Vernon Town Clerk wrote to the Vermont Surveyor General to help him create an official state map. Enclosed with the clerk's letter was a map of Vernon, which included Stebbins Road.

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¶ 9. In 1813 and 1815, the Vernon selectboard executed and conveyed two glebe lease deeds.^[3] The 1813 lease described the premises in part as the land "southward of the road as it was laid out from Eliakim Stebbins' to Guilford." Likewise, the 1815 lease described the premises in part as the land "Northwardly of the road, as it was laid out from Eliakim Stebbins' to Guilford." In 1838, the selectboard executed a new lease of the land north of the road containing the same road description, "as it was laid out from Eliakim Stebbins to Guilford."

¶ 10. In 1841, the Town petitioned the selectboard to "lay out, or alter, at your discretion, so much of the Stebbins Road, so-called, as you think the best good of the Town requires, from the sign post to the dwelling house of Eli Lee in said Vernon." The selectboard then "established the within named Road, according to the accompanying survey," which laid out Eli Lee Road along the same general path of a portion of Stebbins Road, along what is now West Road from Route 142 to the Merritts' property.

¶ 11. In 1904, the Town petitioned the selectboard "for the purpose of considering the matter of discontinuing the Stebbins (so called) as a Public Highway from the residence of said Geo. H. Butterfield to the town line between Guilford and Vernon"-meaning the western part of Stebbins Road. Hearing no objection at the meeting, the board "declare[d] said road discontinued as a highway."

B. Current Land Ownership

¶ 12. Landowner purchased property in Vernon through a series of real estate transactions between 2000 and 2013. His chain of title reaches back to the 1815 and 1838 glebe lot leases.^[4]

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¶ 13. Neighbors have owned property in Vernon for over fifty years. Their property abuts landowner's land to the east. Neighbors' chain of title reaches back to ownership by Eliakim Stebbins, Eli Lee, and George Butterfield. Neighbors access their property over West Road, an undisputed public road that ends at a point within their property. Where the public road ends, the road path continues westward across neighbors' property, passing within a few feet of their home and farm buildings, and runs along the southern boundary of landowner's property. It eventually ends at the Guilford town line.

¶ 14. After landowner purchased his property, he began to build a residence. He believed that the Stebbins Road path provided access to his property, although there was some uncertainty. He sought to improve the road to access his property and asserted a right to use the path across neighbors' property, sparking this longstanding litigation.

C. Prior Litigation

¶ 15. Landowner first petitioned the Public Service Board (now Public Utility Commission) to declare the portion of the road at issue a public road so that he could run power lines to his property. Neighbors intervened, arguing that the Board lacked subject-matter jurisdiction. This Court affirmed the Board's conclusion that it lacked authority to determine a road's legal status and dismissed landowner's case for lack of jurisdiction. See In re Doolittle Mountain Lots, Inc., 2007 VT 104, ¶ 7, 182 Vt. 617, 938 A.2d 1230 (mem.).

¶ 16. Landowner continued to seek access to his property over Stebbins Road, causing disagreement with neighbors. Neighbors filed suit, seeking a declaratory judgment that landowner had no right of access over the road through their property. Landowner maintained that he was entitled to a right of access over the discontinued Stebbins Road under Okemo Mountain, Inc. v. Town of Ludlow, 171 Vt. 201, 762 A.2d 1219 (2000). Neighbors contended that landowner was not entitled to a right of access over the road because it was not necessary. They later amended their complaint to assert that Stebbins Road was never established as a public road because there

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was no record of the Town formally laying out the road. The superior court agreed that Stebbins Road had not been properly laid out as a public road, and accordingly held that landowner lacked a right of access. The court also concluded that access over the road was not necessary because landowner had access from the western side of his property and therefore his property was not landlocked.

¶ 17. A three-Justice panel affirmed the superior court's decision on appeal. Merritt v. Daiello, No. 2010-171, 2010 WL 7799806, at *3 (Vt. Oct. 21, 2010) (unpub. mem.), https://www.vermontjudiciary.org/sites/default/files/documents/eo10-171.pdf [https://perma.cc/ 2WEZ-Q2AF]. In this 2010 decision, the Court upheld the superior court's conclusion that, absent an official act, landowner could not show that Stebbins Road was properly established. Id. As to the easement by necessity, the Court determined that it...