Doncaster v. Hane

• Decision Date: 13 March 2020
• Docket Number: No. 2019-077,2019-077
• Court: Vermont Supreme Court
• Parties: Wayne Doncaster & Elizabeth Doncaster v. John A. Hane, Pam Hane & Town of Irasburg

2020 VT 22

Wayne Doncaster & Elizabeth Doncaster v. John A. Hane, Pam Hane & Town of Irasburg

No. 2019-077

Supreme Court of Vermont

January Term, 2020

March 13, 2020

NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal revision before publication in the Vermont Reports. Readers are requested to notify the Reporter of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made before this opinion goes to press.

On Appeal from Superior Court, Orleans Unit, Civil Division

Robert R. Bent, J.

Stephen F. Coteus of Tarrant, Gillies & Richardson, Montpelier, for Plaintiffs-Appellees.

Michael J. Straub, Burlington, for Defendants-Appellants John A. Hane and Pam Hane.

Sara Davies Coe of May & Davies, Barton, for Defendant-Appellant Town of Irasburg.

PRESENT: Reiber, C.J., Robinson, Eaton, Carroll and Cohen, JJ.

¶ 1. CARROLL, J. This is a dispute over access to a segment of road that extends across defendants-appellants' property and onto plaintiffs-appellees' property. The civil division of the superior court held that plaintiffs had the right to use the road because it was a class 4 town highway that was never discontinued. Defendants argue that the highway was discontinued by operation of Act 178, Vermont's ancient-road law, when the town did not include it on the town highway map by July 1, 2015. We affirm.

¶ 2. The following facts are drawn from the factual statements accompanying the parties' motions for summary judgment as well as the trial court's findings and are undisputed except where noted. The parties own adjoining parcels of real property in Irasburg, Vermont. Plaintiffs Wayne and Elizabeth Doncaster purchased their 450-acre property in 1958. Plaintiffs' property is divided roughly in half by a hillside and the road that is at issue in this dispute, the so-called Howe Segment, which runs along the flat ridge above the hillside. Plaintiffs' house and farmstead is located on the southeast portion of plaintiffs' property, which they access from Hillandale Road. The northwest portion of plaintiffs' property is mostly forested. Plaintiffs have always accessed the northwest portion by way of Town Highway 14 and the Howe Segment. Plaintiffs have periodically used the Howe Segment for logging and other purposes.

¶ 3. Defendants John and Pam Hane own the land to the north and west of plaintiffs' parcel. Defendants purchased their property in 1999. They access their property using Town Highway 14, the Howe Segment, and a private driveway that diverges to the west and northwest from the Howe Segment.

¶ 4. The Howe Segment was laid out as a town highway in 1866 as "A Road Near Silas Howe" by the selectboard of the Town of Irasburg. In 1867, a certificate of opening formally opened the road to public use. The Howe Segment extends in a straight line to the southwest from what appears on the town highway map to be the terminus of Town Highway 14. The Howe Segment enters defendants' property and continues parallel to the boundary between defendants' property and plaintiffs' property. It then enters plaintiffs' property and continues for several hundred feet to its end at a cellar hole in the middle of a field where the former Howe farmstead was located.

¶ 5. In or about September 2015, plaintiffs began using the Howe Segment for logging for the first time since 2005. Defendants erected a locked gate across the Howe Segment and refused to allow plaintiffs to use the road. Plaintiff Wayne Doncaster sought assistance from town officials to have the road unblocked but was unsuccessful.

¶ 6. In April 2016, plaintiffs filed a petition for declaratory judgment against defendants and the Town in the civil division of the superior court. In May 2017, plaintiffs moved forsummary judgment, asserting that the Howe Segment is a class 4 town highway that was visibly in use and therefore was not discontinued by operation of Act 178 when the town failed to include it on the town highway map by July 1, 2015. They alternatively claimed that if it had been discontinued, they retained a private right-of-way over the former town highway. Plaintiffs sought damages of $3883, representing the losses they incurred when defendants blocked the road and prevented plaintiffs from bringing their wood chips to market.

¶ 7. Defendants cross-moved for summary judgment. They did not dispute that the Howe Segment had been a town highway, but argued that there was no clearly observable physical evidence that it had been used by the public. Thus, they claimed, it was an "unidentified corridor" that was discontinued by operation of Act 178. They further claimed that Act 178 discontinued all town highways that were not on the town highway map by July 1, 2015, and therefore even if the Howe Segment was not an unidentified corridor, it was discontinued because town officials never placed it on the map. Defendants argued that plaintiffs did not retain a private right-of-way over the Howe Segment because they had adequate alternative access to their back acreage.

¶ 8. The Town also filed a cross motion for summary judgment, arguing that the Howe Segment was never a town highway, or alternatively that it was discontinued by operation of Act 178.

¶ 9. In March 2018, the trial court granted partial summary judgment in favor of plaintiffs. It concluded that there was no genuine dispute that the Howe Segment was properly laid out in 1866 as a town highway. It further concluded that because there was clearly observable physical evidence of use of the Howe Segment in the form of tire tracks, the road was not an unidentified corridor that was discontinued by Act 178. The court noted that it was unclear whether the physical evidence existed prior to 2015 and stated it would hold a hearing on the issue if that fact was in dispute.

¶ 10. Both parties moved for reconsideration. Plaintiffs argued that they were entitled to full judgment in their favor because the photographs and other evidence they submitted with their summary judgment motion showed that there was physical evidence of use of the Howe Segment for many years prior to 2015. They also asked the court to rule that the Howe Segment was a class 4 town highway. For their part, defendants argued that: the relevant date for clearly observable physical evidence was July 1, 2010; the physical evidence, including a culvert maintained by the Doncasters and a locked gate, showed that the Howe Segment was closed to public use and was not maintained by the Town; and the Town's failure to include the Howe Segment on the town map by July 2015 was evidence that there was no public use.

¶ 11. The court denied plaintiffs' request for summary judgment because it determined there was a factual dispute regarding the appearance of the road. It disagreed with defendants' argument that the Town's failure to place the road on the town highway map by July 1, 2015 was evidence that it was not a public highway and declined to include the map in evidence. The court also rejected defendants' argument that the road was not public because portions of it had been maintained by the Doncasters, stating that "the relevant inquiry is whether a casual observer would be able to determine from merely looking at a way whether it was a road in public use."

¶ 12. The court held an evidentiary hearing and a site visit in August 2018. Based on its own observations and the testimony of witnesses, it found that from at least 1963 to 2015, the Howe Segment was clearly observable by physical evidence of its use as a highway or trail. It found that the road was used mostly as a trail, which it defined as a beaten path through rough country. The road looked more like a highway when it was improved by plaintiffs every decade or so for the purpose of logging. It became overgrown between logging sessions but was passable by a motor vehicle at all relevant times. The court therefore concluded that the Howe Segment was not an unidentified corridor and remained a class 4 town highway. It ordered the Town torecognize the Howe Segment as a class 4 town highway and directed the parties to remove all gates and any items of personal property obstructing the road. Defendants appealed.

¶ 13. On appeal, defendants argue that Act 178 operated to discontinue all unmapped town highways, including the Howe Segment, after July 1, 2015. Because the Town of Irasburg did not act to place the Howe Segment on the town highway map by that date, they claim, the Howe Segment was discontinued even if it did not qualify as an unidentified corridor under the Act. Alternatively, defendants argue that the Howe Segment qualified as an unidentified corridor because there was no physical evidence that it was used by the public.^* We conclude that both arguments are without merit.

I.

¶ 14. We first address defendants' argument that the trial court erred in concluding that Act 178 operated only to discontinue unidentified corridors and not any other town highways that were unmapped as of July 1, 2015. The court's interpretation of the statute is a question of law that we review without deference. First Quality Carpets, Inc. v. Kirschbaum, 2012 VT 41, ¶ 15, 192 Vt. 28, 54 A.3d 465.

¶ 15. Act 178 was enacted in 2006 "to quell the uncertainty that the existence of ancient roads places on private property rights." Town of Bethel v. Wellford, 2009 VT 100, ¶ 7, 186 Vt. 612, 987 A.2d 956 (mem.); see E. Goldwarg, Note, Known Unknowns: Ancient Roads in Northern New England, 33 Vt. L. Rev. 355, 368-70 (2008) (explaining that disputes over legally existing but physically invisible town highways prompted real estate industry to advocate for legislation to quiet title to ancient roads). Under Vermont common law, once a town properly laid out a highwayaccording to statute, the highway continued to exist forever even if it was unused or abandoned. See ...