First Cong. Church of Enosburg v. Manley

• Decision Date: 04 February 2008
• Docket Number: No. 06-462.,06-462.
• Parties: FIRST CONGREGATIONAL CHURCH OF ENOSBURG v. Kimberly MANLEY, Ward Manley, Dianne Trudo and Patrick Trudo.
• Court: Vermont Supreme Court

946 A.2d 830

2008 VT 9

FIRST CONGREGATIONAL CHURCH OF ENOSBURG v. Kimberly MANLEY, Ward Manley, Dianne Trudo and Patrick Trudo.

No. 06-462.

Supreme Court of Vermont.

February 4, 2008.

Present: REIBER, C.J., DOOLEY, JOHNSON, SKOGLUND and BURGESS, JJ.

ENTRY ORDER

¶ 1. In this boundary-dispute action, plaintiff, First Congregational Church of Enosburg, appeals a decision of the Franklin Superior Court, concluding that plaintiff failed to prove ownership of the disputed property. On appeal, plaintiff argues that: (1) the trial court's findings of fact with respect to record title were clearly erroneous; and (2) the trial court erred, as a matter of law, in concluding that plaintiff had not established title by adverse possession. We affirm.

¶ 2. The facts of this case are undisputed. In 2000, defendants purchased a twenty-three-acre property adjoining the southern boundary of land owned by plaintiff. After surveying the property and obtaining the necessary permits, defendants began constructing a home in May 2002, which was to be located close to the common boundary line of the properties. Defendants constructed a driveway and began work on the foundation of the home, when plaintiff notified them that the driveway and part of the garage encroached on its property. Defendants nonetheless proceeded with their construction plans, and plaintiff sought a declaratory judgment establishing the boundary line and seeking damages for trespass. Shortly before trial, and without objection from defendants, plaintiff amended its complaint, adding an adverse-possession claim.

¶ 3. Deeded for the first time in 1820, plaintiff's parcel was described as ninety-nine feet from north to south, along the Boston Post Road, and 330 feet from east to west. It was the southern part of a 330' by 330' parcel that was bounded on the west by the Boston Post Road and on the north by Nichols Road, formerly known as Trout River Road. Both parties presented the testimony of expert witnesses as to the location of disputed boundary. Relying on the description in the deeds, plaintiff's expert used the current south edge of Nichols Road, and measured 330 feet south to establish the south line of the larger parcel, also the south line of plaintiff's parcel. In finding a different location for the boundary, defendants' expert relied instead on physical evidence of the boundary line, including a stone wall, a fence line, and the location of the church. Both opinions presented difficulties. According to plaintiff's method, the church building is located partly on land owned by the church and partly on land to the north owned by others. According to defendants' approach, the line 330 feet to the north of the boundary line between the lands of plaintiff and defendants overshoots Nichols Road by twenty feet.

¶ 4. After reviewing the evidence presented by both parties, the trial court concluded that the opinion of defendants expert was more persuasive. The court found that the more plausible reconciliation of the deed description with the physical facts at the time of trial was that the location of Nichols Road had shifted to the south, as defendants argued. Consequently, the court located the boundary as proposed by defendants and concluded that defendants' construction had not encroached on plaintiff's land.

¶ 5. Both parties also introduced evidence on plaintiff's claim that it had acquired title to the disputed land by adverse possession. Plaintiff relied on the former location of horse sheds and on mowing and parking on the disputed land to establish a claim of right to the land. Defendants, in turn, relied particularly on the testimony of the former owner of their lands that the church's use of the disputed lands was done with permission. The court concluded that plaintiff's evidence of use was "not strong enough to meet the standard of obvious, adverse or hostile ownership over the course of the 15 year statutory period." The court further stated that neither plaintiff "nor its neighbors attempted to keep anyone out or to place buildings on the disputed area." It entered judgment for defendants on the claim of adverse possession. This appeal followed.

¶ 6. We begin with plaintiff's argument concerning record title. Plaintiff contends that the court's findings of fact concerning the disputed boundary were clearly erroneous in a number of respects. In particular, plaintiff argues that the court could not rely on the opinion of defendants' expert witness and specifically could not rely on the expert's drawing of the boundary lines because it did not meet the statutory requirements for surveys or the measurement standards set forth in chapter 45 of Title 26 (regulation of land surveyors). See 26 V.S.A. § 2602. Plaintiff argues that the testimony of defendants' expert was contradictory and "based on questionable methodology." Plaintiff further observes that the description proposed by defendants' expert calls into question the town's ownership of the current road bed for Nichols Road and the titles of those who own property north of that road. Finally, plaintiff stresses that the record does not support a finding that defendants had title to the property by deed. Plaintiff relies on evidence of conveyances of related land by property owners in 1831. According to plaintiff, these conveyances make clear that defendants' deed line never reached north of the sheds and that, therefore, the parcel currently owned by defendants could not have included the disputed property.

¶ 7. The court's determination of a boundary line is a question of fact to be determined by the evidence. Pion v. Bean, 2003 VT 79, ¶ 29, 176 Vt. 1, 833 A.2d 1248. We will not disturb the trial court's findings of fact unless they are clearly erroneous, despite inconsistencies or substantial evidence to the contrary. Monet v. Merritt, 136 Vt. 261, 265, 388 A.2d 366, 368 (1978). In claiming encroachment, plaintiff carries the burden of proof to establish that it has record title. Greenmont Lumber Corp. v. Berger, 154 Vt. 121, 123-24, 574 A.2d 153, 155 (1990). When the court determines whether plaintiff has met its burden, the court's findings will be sustained on appeal unless, viewing the evidence in the light most favorable to the prevailing party, there is no credible evidence to support the findings. Mullin v. Phelps, 162 Vt. 250, 260, 647 A.2d 714, 720 (1994).

¶ 8. Although each party's arguments had significant weaknesses, as noted above, there was ample evidence to support the court's finding that defendants held record title to the disputed lands. The court evaluated the credibility of both expert witnesses and explained the shortcomings of the approach used by plaintiff's expert. First, the court stressed, under plaintiff's approach, the boundary "line [either] passe[d] directly through the center of the church structure" or required the church lot to be considerably larger than the one originally set forth in the church's deed. The court found incredible plaintiff's assertion that the church had moved or had not been built according to the original design plan because: (1) there was no evidence in any records that the church had been relocated; and (2) the evidence showed that early landowners who had dealt with the property were sophisticated and "conscious" of the "importance of boundaries."

¶ 9. Plaintiff's arguments boil down to an attack on the opinion of defendants' expert witness. The superior court addressed each of these arguments and rejected them. Like the superior court, we conclude that these arguments go to the weight of the evidence and thus fall within the purview of that court to resolve. See Cabot v. Cabot, 166 Vt. 485, 497, 697 A.2d 644, 652 (1997) ("As the trier of fact, it [is] the province of the trial court to determine the credibility of the witnesses and weigh the persuasiveness of the evidence."). We include in that description the "illustration" admitted as Exhibit X in connection with the testimony of the witness. Contrary to plaintiff's assertion, the court formally acknowledged that the illustration "did not produce a survey which met the standards for recording." The court went on to explain its use of the illustration, stating that the drawing was reliable insofar as it was "based on surveying techniques." There is no dispute that the expert was qualified to give an opinion on the location of the boundaries based on his education, skill, and experience as a land surveyor. See V.R.E. 702. Land surveyors can produce representations of the location of boundaries that do not meet the requirements of a survey. See State v. Brooks, 2004 VT 88, ¶ 15, 177 Vt. 161, 861 A.2d 1096. The illustration was a graphical representation of the expert's opinion testimony. We find no basis on which the illustration should have been excluded.

¶ 10. We come next to plaintiff's claim that the court erred, as a matter of law, in concluding that plaintiff's use of the property was insufficient to establish adverse possession.^* At the outset, we note that the church had been largely inactive since 1966, a fact tending to undermine plaintiff's adverse-possession claim. Thus, plaintiff was relying on evidence of usage prior to that date and faced difficulties in proving continuous use over a fifteen-year period.

¶ 11. The court did find that plaintiff had used the property for more than fifteen years by mowing the grass around the building and using the property for car access and parking, and further determined that, at some point, a fence existed at roughly the location plaintiff claimed that the boundary existed. The court rejected plaintiff's assertion that the location of the sheds established adverse possession by the church.

¶ 12. Adverse possession is a mixed question of law and fact. MacDonough-Webster Lodge No. 26 v. Wells, 2003 VT 70, ¶ 17, 175 Vt. 382, 834 A.2d 25. This Court views the factual findings of the trial court in the light most favorable...