Darken v. Mooney, 82-110

• Citation: 144 Vt. 561,481 A.2d 407
• Decision Date: 29 June 1984
• Docket Number: No. 82-110,82-110
• Parties: E.R. DARKEN and Nancy Darken, Individually, and W/S Enterprises, Inc. v. Francis A. MOONEY.
• Court: United States State Supreme Court of Vermont

Page 407

481 A.2d 407

144 Vt. 561

E.R. DARKEN and Nancy Darken, Individually, and W/S Enterprises, Inc. v. Francis A. MOONEY.

No. 82-110.

Supreme Court of Vermont.

June 29, 1984.

Stern & Mayhew, P.C., Woodstock, for plaintiffs-appellees.

Laurence F. Gardner, Hanover, N.H., for defendant-appellant.

Before HILL, UNDERWOOD, PECK and GIBSON, JJ., and LARROW, J. (Ret.), Specially Assigned.

GIBSON, Justice.

This is a boundary dispute between adjoining property owners in the village of Woodstock. The Darkens brought an action in Windsor Superior Court seeking a declaratory judgment as well as a permanent injunction. Defendant Mooney counterclaimed on the basis of adverse possession; he claims title to a portion of plaintiffs' property by adverse use for a period in excess of fifteen years. After hearing, the presiding judge established a boundary line and issued a permanent injunction in favor of plaintiffs.

Defendant advances four arguments on appeal. He argues that: (1) the trial court's denial of his motion for relief from judgment based upon newly discovered evidence was an abuse of discretion; (2) the trial court's findings and conclusions of law were insufficient in that they failed to address adequately the question whether defendant has acquired a prescriptive easement by which he could reach the rear entrance of his garage; (3) the defendant's installation of underground oil tanks in 1952 satisfied the notice requirement of the prescriptive easement doctrine; and (4) the court's findings and conclusions denying defendant's claims of adverse possession and prescriptive easement are clearly erroneous. We affirm the judgment of the trial court.

The parties own adjoining parcels of commercial property on Central Street in Woodstock. The plaintiffs acquired their property in 1967 and operate a retail sporting goods store. Defendant, who operates a gasoline station, acquired his parcel in 1952. The properties conjoin for a distance along a common driveway that is the focus of this dispute. Plaintiffs claim defendant continually blocks access to their property by parking vehicles upon plaintiffs' portion of the drive. They also claim that defendant's aboveground and belowground fuel tanks intrude upon their property.

Plaintiffs' property is composed of four separate parcels, an original parcel and three additional strips acquired later. The most relevant addition, for our purposes, is a four foot strip conveyed from defendant's predecessors in title to plaintiffs' predecessors. The strip was originally located within the eastern boundary of defendant's property and abutted the western boundary of plaintiffs' property. This four foot piece was transferred from defendant's property and became part of plaintiffs' parcel in 1946. Today, it contains part of the common driveway. The conveyance itself was verified by deed and is not in dispute. The exact location of the east/west edge of this strip, however, was the focus of the litigation below; its location determines the boundary between the two parcels and determines what percentage of the driveway each party is entitled to use. Its location also determines whether defendant's property is sufficiently wide to provide a corridor to the rear of his garage.

At trial, plaintiffs produced a surveyor, who had surveyed the property based upon existing deeds as well as surviving physical landmarks. He testified that the boundary was located along a line beginning 20.2 feet from the southwestern corner of the Darken building and 22 feet from the southeastern corner of the Mooney building, then extending northerly to a stone post, then to an iron pipe and, finally, to the edge of Kedron Brook. The line, as established by the survey, divides the driveway and does not provide defendant with access by vehicle to the rear of his garage.

This survey substantially conformed to an earlier survey which had been conducted by plaintiffs' predecessor. It also conformed to an earlier determination made by the village of Woodstock during a sidewalk construction project and was consistent with the determination of an asphalt contractor who paved the driveway in 1974 and billed the parties according to their respective shares.

Defendant presented no expert witness at trial to rebut the testimony of plaintiffs' surveyor but relied instead upon his own understanding of the location of the boundary line.

Plaintiffs claim the aboveground tank extends over the boundary line and rests partially upon their property. They testified that this tank was not placed upon the property until some time after the fall of 1966. Plaintiffs further testified they had no knowledge, prior to trial, that the underground tanks were also protruding beyond the line established by the survey and onto their property. The underground tanks were installed about 1952 and had no aboveground accountrements on plaintiffs' property. No evidence was presented during trial that any of plaintiffs' predecessors had knowledge of the location of the underground tanks.

The court found that the line established by plaintiffs' survey was "the true and accurate common boundary of the parties" and, based upon a credibility judgment, found that the aboveground tank was not in place until after the fall of 1966. The court rejected defendant's counterclaim of ownership by adverse possession, because the aboveground tank had not been in place for fifteen years before suit and there was no evidence that plaintiffs or their predecessors knew of the underground tanks. Defendant was ordered to remove the aboveground tank within 20 days and was enjoined from trespassing or interfering with plaintiffs' land.

Defendant's first claim arises from the denial of his post-trial motion for relief from judgment. Pursuant to V.R.C.P. 60(b)(2) defendant requested the trial be reopened for the purpose of receiving testimony by a surveyor engaged by defendant subsequent to trial. Defendant claims he was unable to obtain the services of a surveyor prior to trial because he could not afford to pay for such expert services and Vermont Judicare, through which he was represented, would not pay the full surveyor's fee. He argues that he was not so informed by Vermont Judicare until January 11, 1982. The trial was scheduled for January 21, 1982, a requested continuance was denied and, therefore, defendant claims he had inadequate time in which to secure a survey and expert testimony.

More than seven months after trial, defendant obtained a survey of his property which differed in some respects from that conducted by plaintiffs' surveyor. He then moved to reopen the case based upon this alleged discrepancy. The motion was denied.

V.R.C.P. 60(b)(2) provides that a court may relieve a party from a final judgment when there is "newly discovered evidence which by due diligence could not have been discovered" within 10 days after entry of the judgment. Such relief, however, "is addressed to the discretion of the trial court and is not subject to appellate review unless it clearly and affirmatively appears from the record that such discretion was withheld or otherwise abused." Zinn v. Tobin Packing Co., 140 Vt. 410 414, 438 A.2d 1110, 1113 (1981) (citing Waitt v. Waitt, 137 Vt. 374, 375, 406 A.2d 395,...