Hilliker v. Husband

• Decision Date: 01 October 1974
• Docket Number: No. 219-72,219-72
• Citation: Hilliker v. Husband, 132 Vt. 566, 326 A.2d 177 (Vt. 1974)
• Court: Vermont Supreme Court
• Parties: Andrew H. and Priscilla HILLIKER v. George and Elizabeth HUSBAND.

Page 177

326 A.2d 177

132 Vt. 566

Andrew H. and Priscilla HILLIKER v. George and Elizabeth HUSBAND.

No. 219-72.

Supreme Court of Vermont.

Oct. 1, 1974.

John J. Welch, Jr., Rutland, for plaintiffs.

William M. Dorsch, Vermont Legal Aid, Inc., Springfield, for defendants.

Before BARNEY, C. J., and SMITH, KEYSER, DALEY and LARROW, JJ.

KEYSER, Justice.

Defendants below, George Husband and Elizabeth Husband, appeal here from adverse findings of fact and conclusions of law of the Windsor County Court that defendants do not have any right-of-way by adverse possession over property in Hartford, Vermont, owned by plaintiffs below, that of Andrew H. Hilliker and Priscilla Hilliker.

The twelve-foot right-of-way in question runs westerly from Bridge Street in the Town of Hartford across lands of Hilliker and St. James to the southeast corner of defendants' property and constitutes the sole means of access to defendants' property. The Husbands obtained title to their property by virtue of two deeds. The first parcel was obtained by deed dated December 3, 1958, from Emanuel R. Martin and Kathryn E. Martin. The Husbands acquired a later piece on January 3, 1963, from Horace H. Punt, Sr., and Edith A. Punt that abuts plaintiffs Hillikers' property.

By their action below, plaintiffs sought to permanently enjoin defendants from entering upon their property and using the right-of-way in question. Defendants answered claiming a right-of-way and, after findings of fact and conclusions of law by the court, timely moved pursuant to V.R.C.P. 59(e) to alter or amend the judgment wherein they more precisely specified their claim to the right-of-way. The Husbands seek to establish their right by adverse use throughout the statutory period of fifteen years. 12 V.S.A. § 501. They seek to do this by adding to their own fourteen years of adverse use from 1958 until time of suit in 1972, the adverse use of the Martins, their predecessors in title, and by this 'tacking' of adverse use, establish their claim. The judgment order of the lower court reaffirmed the findings of fact and conclusions of law by stating that the Husbands do not have a right-of-way from Bridge Street to their premises.

Defendants' position below was that their claim of use of the right-of-way over plaintiffs' property was established by their fourteen-year, continuous, notorious, open, and hostile use of that right-of-way, Laird Properties v. Mad River Corp., 131 Vt. 268, 277, 305 A.2d 562 (1973); D'Orazio v. Pashby, 102 Vt. 480, 150 A. 70 (1930), and by tacking on the same manner of adverse use by the Martins, their predecessors in title, to achieve the necessary statutory period of fifteen years of adverseness. Hassam v. Safford, 82 Vt. 444, 74 A. 197 (1909).

It is well established that the reviewing court is bound to construe findings of fact reasonably, and they are to be so read as to support the judgment if they reasonably may be. Potter v. Town of Clarendon, 118 Vt. 278, 108 A.2d 394 (1954). Defendants squarely raised the issue of tacking in their motion to alter or amend below and were entitled to a definitive finding of fact on what we feel is the crucial issue involved; namely, whether Martins' prior use was adverse as to the Hillikers'.

Finding of Fact No. 17 describes Martins' prior use:

That one, Martin, resided at the defendant Husband's property from 1946 to the time that the defendant Husband purchased said property, and during said period, he gained access from Bridge Street through the the (sic) St. James-Hilliker right-of-way, the access to Maple Street being almost inaccessible.

This Finding of Fact indicates clearly that the trial court found the requisite continuity of use of the right-of-way by the Martins as one element necessary to establish adverseness. 12 V.S.A. § 501; Higgins v. Ringwig, 128 Vt. 534, 538, 267 A.2d 654 (1970).

Other elements needed to establish adverseness are open, notorious, and hostile use. Montgomery v. Branon, 129 Vt. 379, 278 A.2d 744 (1971). It is not necessary for a prescriptive claimant to voice his claim if his use is such as to indicate that a prescriptive claim is being asserted. Russell v. Pare, 132 Vt. --, 321 A.2d 77, 82 (1974). Finding of Fact 18 states 'that during said period, the said Martin and...