Fletcher v. Ferry

• Decision Date: 02 February 2007
• Docket Number: No. 05-295.,05-295.
• Parties: Howard FLETCHER v. Henry W. FERRY.
• Court: Vermont Supreme Court

917 A.2d 937

2007 VT 8

Howard FLETCHER v. Henry W. FERRY.

No. 05-295.

Supreme Court of Vermont.

February 2, 2007.

Edward M. Kenney of Roesler, Whittlesey, Meekins & Amidon, Burlington, for Plaintiff-Appellee.

Paul S. Gillies of Tarrant, Marks & Gillies, Montpelier, for Defendant-Appellant.

Present: REIBER, C.J., JOHNSON, SKOGLUND and BURGESS, JJ., and CRAWFORD, Supr. J., Specially Assigned.

¶ 1. JOHNSON, J.

The case before us arose out of a dispute over a right-of-way that defendant Ferry claims over plaintiff Fletcher's property. Both parties are unhappy with the trial court's decision. Defendant appeals the location of the right-of-way, as found by the court, and plaintiff cross-appeals, contending the right-of-way was extinguished by merger. We agree with plaintiff that the trial court erred in failing to find that common ownership in the chain of title eliminated the right-of-way, despite the common owner's acquisition of one of the parcels by intestate succession, and his failure to probate the estates of his parents. We therefore reverse. In view of our holding, it is unnecessary to reach the issues raised by defendant's appeal.^*

¶ 2. The dispute between the present owners began in June 2000, when defendant wrote a letter to plaintiff advising that he planned to use a right-of-way conveyed for the benefit of his land, known as the Scribner woodlot, across plaintiff's land, the Fletcher parcel. Plaintiff refused to recognize the existence of a right-of-way, as it was not indicated in the deed to his property. While the right-of-way described in defendant's deed was by that point no longer a visible path, in 2001, defendant drove a small tractor across the Fletcher parcel along the course that he believed was the route of the original easement.

¶ 3. As a result, the dispute ripened into a lawsuit in July 2001 when plaintiff filed a complaint in the Washington Superior Court, disputing defendant's right to cross his land, and seeking declaratory and injunctive relief and damages for trespass as well as punitive damages. In count seven of his complaint, plaintiff alleged that any easement across his property was extinguished in January 1972, when the two parcels came into the common ownership of Franklin Scribner, one of their predecessors in title. The trial court rejected plaintiff's merger-doctrine theory and concluded that defendant held an easement across the Fletcher parcel for access to the Scribner woodlot. In its conclusions of law, the court held that plaintiff failed to show that Franklin intended to merge the parcels in 1972, and that intent was necessary for the merger doctrine to take effect. Furthermore, the court determined that the right-of-way was not extinguished because the estates were not probated and therefore, given the possibility that there may have been creditors of the estates, Franklin could not be said to have acquired the full legal title necessary for merger to take place by operation of law.

¶ 4. Plaintiff claims on appeal that the title history shows unity of ownership and possession in Franklin in 1972, thereby extinguishing the easement as a matter of law; that the trial court erred in holding that intent to merge parcels in common ownership is a prerequisite to merger; and that plaintiff's failure to prove that there were no creditors who may have had claims against the unprobated estates did not deprive Franklin of the quality of title necessary for the merger doctrine to operate.

¶ 5. Under the common-law merger doctrine, an easement ceases to exist when the dominant and servient estates come into common ownership. Capital Candy Co. v. Savard, 135 Vt. 14, 15, 369 A.2d 1363, 1365 (1976); 4 R. Powell, Powell on Real Property § 34.22[1], at 34-203 (M. Wolf ed. 2005). "When the burdens and benefits [of an easement] are united in a single person . . . the servitude ceases to serve any function. Because no one else has an interest in enforcing the servitude, the servitude terminates." Restatement (Third) of Property (Servitudes) § 7.5 cmt. a (2000). Merger occurs by operation of law.

¶ 6. A review of the title history, as found by the trial court, shows that Franklin acquired his interest in the Scribner woodlot, the dominant estate, in May 1966 when his mother, Ellen Scribner, died. She was the sole owner of the Scribner woodlot, and her only living heirs were her husband, Charles, and son, Franklin. Ellen's estate was not immediately probated, and Charles and Franklin succeeded to the property as tenants in common by the laws of intestate succession. Upon Charles's death in 1972, Franklin became sole owner of the Scribner woodlot in fee simple by the laws of descent and distribution. Formal title to the Scribner woodlot, however, remained in Ellen's name until Franklin finally probated her estate in 1974. Franklin became the sole owner in fee simple of the Fletcher parcel, the servient estate, when his father died in January 1972. Father and son had held the Fletcher parcel as joint tenants with rights of survivorship. Thus, in 1972, Franklin came into sole ownership of both the dominant and servient estates. The property remained in the common ownership and possession of Franklin until May 1973 when he added his son and wife to the Fletcher parcel's title as joint tenants.

¶ 7. In denying that merger occurred in 1972, two issues were significant to the trial court. The first was that plaintiff failed to show that Franklin intended that the parcels be merged in 1972. We have not previously held that intent to merge is required, however, and we decline to do so now. The trial court relied on dicta from an Illinois intermediate appellate court that stated that "[t]he merger of estates is a question of intent." Ellis v. McClung, 291 Ill.App.3d 448, 225 Ill.Dec. 408, 683 N.E.2d 911, 918 (1997). The Illinois court, however, appears to have confused merger in the context of termination of an easement with termination of a mortgage interest. The Illinois court erroneously relied on Chicago Title & Trust Co. v. Wolchinovesky, which dealt with merger related to mortgages, for its conclusion that intent is necessary for merger to extinguish an easement. 326 Ill.App. 194, 61 N.E.2d 264, 266 (1945). In the mortgage context, intent is a factor in determining whether merger of estates has occurred because operation of the doctrine may unjustly harm a first mortgagee and unfairly elevate a junior one to senior status. Salazar v. Terry, 911 P.2d 1086, 1092 (Colo. 1996); 12 Thompson on Real Property § 101.03(e), at 383 (Thomas ed. 1994) (if merger is applied where a first mortgagee has...