Gardner v. Town of Ludlow

• Decision Date: 01 February 1977
• Docket Number: No. 149-75.,149-75.
• Citation: 369 A.2d 1382
• Parties: Reba GARDNER v. TOWN OF LUDLOW et al.
• Court: Vermont Supreme Court

369 A.2d 1382

Reba GARDNER v. TOWN OF LUDLOW et al.

No. 149-75.

Supreme Court of Vermont.

February 1, 1977.

Michael F. Ryan, Rutland, for plaintiff.

Marguerite R. Shreve and Garfield H. Miller of Black & Plante, White River Junction, for defendant Town of Ludlow.

Before BARNEY, C. J., DALEY, LARROW and HILL, JJ. and KEYSER, J. (Ret., Specially Assigned).

LARROW, Justice.

Plaintiff, a resident landowner in the Town of Ludlow, brought suit in 1972 against that Town and the several individual defendants, at one or another time its selectmen, alleging illegal construction of a highway across her property, seeking restoration of the premises, a permanent injunction against continued use, and monetary compensation, including treble damages for wilful destruction of trees. Following trial by court in 1975, a judgment order was entered establishing the road in question, to its present use to a width of 1½ rods, as a public highway, and giving judgment against plaintiff on all issues. Her subsequent motion under V.R.C.P. 59, asking in the alternative for new trial, new findings and conclusions, taking of additional testimony, or entry of judgment in her favor, filed with supporting affidavits, was denied by the court without hearing. She appeals.

Plaintiff assigns in general two claims of error. Her first claim is that the Town acted without jurisdiction and contrary to statutory authority; her second is that the trial court erred in denying her motion for new trial without a hearing.

The statute involved is 19 V.S.A. § 36. It reads as follows:

§ 36. Determining highway boundaries.

When the survey of a highway has not been properly recorded or the records preserved, or, if terminations and boundaries cannot be ascertained, the board of selectmen may use and control for highway purposes one and one-half rods each side of the center of the traveled portion thereof.

The only prior survey of the road in question was made in 1822, and the evidence was virtually uncontradicted that it was impossible to locate the various landmarks referred to therein, with the possible exception of a cellar hole near the northern end of the road as improved, which may or may not have been in existence in 1822. When the Town proceeded to repair the road in 1970 there were no defined boundaries. That it used only about one-half the width it was entitled to cannot avail the plaintiff, whose action sounds in trespass. Where the termination and boundaries of the old survey could not be ascertained, and there had been no prior re-survey, as here, the quoted provisions of 19 V.S.A. § 36, supra, become applicable. Savard v. George, 125 Vt. 250, 254-55, 214 A.2d 76 (1965). But the trial court specifically found that the present location of the road and that described in the 1822 survey order were not the same, so the judgment below is not supportable, as the Town claims, under 19 V.S.A. § 36.

The trial court, however, did not rely upon that statute, but on the theory of dedication and acceptance. The judgment may be supported on that theory.

There was ample evidence to justify the trial court's findings of dedication, by public usage as far back as 1900, by horses, wagons, trucks, tractors and pedestrians. Plaintiff's own chain of title contained references, in her westerly bound, to "the center of a stone wall on the westerly side of the highway leading to the land of William P. Bixby." A part of the road found by the court runs on the easterly side of this wall, and some fence was also found along the east side of the road. It is shown on a 1962 State Highway map as an untravelled highway, rather than a private road. And, from her acquisition of title in 1957 to the making of the repairs in 1970, plaintiff made no objection to the use or maintenance of the highway. The finding of dedication is amply supported. Town of Woodstock v. Cleveland, 125 Vt. 510, 512, 218 A.2d 691 (1966); Town of Springfield v. Newton, 115 Vt. 39, 50 A.2d 605 (1947).

It is, of course, true that public usage and dedication by the owner cannot impose a duty to repair without acceptance by the proper town authorities. Highways cannot be forced upon a town in this fashion. Town of Springfield v. Newton, supra. Here, however, the Town not only admits such acceptance but raises it in defense against plaintiff's action. Moreover, such acceptance may be inferred from the facts testified to and found.

But such acceptance and adoption may be inferred from evidence that the town acting through the proper officials has voluntarily assumed the burden of maintaining the road and keeping it in repair, and where it is found that labor or money has been expended and repairs made thereon the conclusion is justified that the town has recognized the public character of the road and that it is a highway.

Town of Springfield v. Newton, supra, 115 Vt. at 44-45, 50 A.2d at 609. The fact of acceptance as found, is supported by the testimony of prior repairs and maintenance, putting stop signs at the end, and including the road as an untravelled road in the 1962 State Highway Map. A seemingly contrary result in Town of Springfield is reached only because the controversy there was about a bridge, the repair of which by a road commissioner had to be authorized under then P.L. 4879, as amended, (now 19 V.S.A. § 952) by written authorization from the selectmen, recorded in the town clerk's office. No such written authorization is required for road repairs and maintenance generally, and the doing of them is evidence from which acceptance may be inferred. The court's judgment order is fully supported by the evidence and the findings.

Remaining for our consideration is plaintiff's claim that the court erred in denying without hearing her motion under V.R.C.P. 59. We note at the outset that the motion itself does not set forth any grounds for the relief sought. It leaves the court to sift through the accompanying affidavits to discover...