In re Bill, 97-203.

• Decision Date: 30 October 1998
• Docket Number: No. 97-203.,97-203.
• Citation: 724 A.2d 444
• Parties: In re Ruth BILL.
• Court: Vermont Supreme Court

724 A.2d 444

In re Ruth BILL.

No. 97-203.

Supreme Court of Vermont.

October 30, 1998.

Christopher D. Roy of Downs Rachlin & Martin, PC, Burlington, for Intervenor-Appellant.

John W. Whitcomb of Neuse, Smith & Venman, P.C., Middlebury, for Appellee.

Present: AMESTOY, C.J., and MORSE, JOHNSON and SKOGLUND, JJ., and CORSONES, District Judge, Specially Assigned.

AMESTOY, C.J.

This appeal arises from a decision of the Addison Superior Court granting petitioner Ruth Bill's request to declare legally discontinued a segment of old highway within the Town of New Haven, a portion of which runs across her property. Intervenor Thomas Fisher, whose undeveloped parcel of land abuts a segment of the old highway, contends that the court erred in concluding that there was statutory authorization for a 1926 order by the New Haven selectboard purportedly discontinuing the segment at issue. We agree and, thus, reverse.

The disputed highway segment was originally laid out two centuries ago, but with the exception of the trees which line the route and evidence of old bridgework, it is not maintained as a road today. The road segment is located wholly within the Town of New Haven, and runs northerly from the intersection of Route 17 and Field Days Road, along the western edge of Fisher's parcel, then over Bill's, finally intersecting with Maple Street Extension near a point where that road turns into Hallock Road. The parties in this case are neighboring landowners. Fisher argues that when he bought his twenty-eight acre parcel of property in 1979, he was assured that it was accessible by way of the old town road. He contends that the property would be landlocked and undevelopable without the highway. Around the time of his purchase, Fisher asked the New Haven selectboard about the legal status of the highway segment. The board informed Fisher that "highway mapping since 1931 has never acknowledged existence of [the disputed highway segment]" and that Fisher bore the burden to prove that the roadway exists.

In 1995, Fisher sought to convey the parcel to his daughter and son-in-law so they could build a home. The town zoning administrator denied Fisher's application for a building permit based on the administrator's determination that the highway segment had been discontinued, and therefore the parcel lacked the necessary road access. Fisher again approached the selectboard to confirm the status of the highway, and as a result, the historical origins of the road came to light.

The road was devised in 1798 when Vermont's General Assembly adopted "An Act Appointing A Committee to Lay Out, Alter and Straighten the Road from Vergennes Through Castleton to Bennington," pursuant to which a committee of three individuals undertook "to view, survey, lay out, and alter or turn said road from Vergennes, through Waltham, Weybridge, Cornwall, Whiting, Sudbury, Hubbardton, Castleton, Poultney, Wells, and to Colonel Elisha Averill's in Pawlet." The resulting highway, referred to by the parties as the "Legislative Highway," was laid out by the appointed committee in 1799, and a survey of the highway's course through New Haven was recorded in the town records.

In 1812, the New Haven selectboard laid out the town's portion of a highway leading from Vergennes to Weybridge — the so called "1812 Highway" — which tracked the same course as the Legislative Highway through the town. A survey for the 1812 Highway was recorded in New Haven's town records.

On this evidence, notwithstanding the fact that the road no longer appeared on maps, the New Haven selectboard concluded in November 1995 that the disputed highway segment remained a legal highway and issued Fisher a permit to construct road access to his property along the highway's right-of-way. Upon notice of the permit's issuance, Bill employed a surveyor who discovered in the town land records a 1926 order of the New Haven selectboard purportedly discontinuing the highway segment. The notation read: "Highway Closed. The road leading from J.S. Marshall's to the residence of C.C. Tier was officially closed by the Selectmen W.H. Patterson and George Palmer."¹ The parties agree that the 1926 notation refers to the disputed highway segment. Following discovery of the 1926 order, the selectboard held hearings in late 1995 and early 1996 to address the highway's status. In January of 1996, the board concluded that the disputed segment remains a five rod, class four highway.

Bill petitioned the superior court, pursuant to 19 V.S.A. §§ 701-819, to overturn and vacate the selectboard's 1995 and 1996 orders respecting the disputed segment. In response to Fisher's motion that the petition be considered pursuant to V.R.C.P. 75, the court ruled that it would treat Bill's petition as a declaratory judgment action to determine whether the highway exists, focusing specifically on whether the 1926 action by the New Haven selectboard constituted a valid discontinuance under the General Laws of 1917, the law then applicable. The court concluded that the 1926 board acted within its authority. Fisher appeals.

The rule consistently applied in Vermont has been that "[t]he procedure to be followed in laying out or discontinuing a highway is wholly statutory and the method prescribed must be substantially complied with or the proceedings will be void." In re Mattison, 120 Vt. 459, 462, 144 A.2d 778, 780 (1958); see also Town of Barton v. Town of Sutton, 93 Vt. 102, 103, 106 A. 583, 584 (1919). We presume that action taken by a selectboard in the scope of its official duties is in accordance with statutory requirements. See Traders, Inc. v. Bartholomew, 142 Vt. 486, 489, 459 A.2d 974, 977 (1983). Nonetheless, because the selectboard of a town constitutes an inferior tribunal with certain quasi-judicial powers, see Town of Shrewsbury v. Davis, 101 Vt. 181, 187, 142 A. 91, 93 (1928), when a selectboard acts outside its statutory authority with respect to a discontinuance, the defect is akin to a lack of jurisdiction over the subject matter. See Mattison, 120 Vt. at 463, 144 A.2d at 780. The proceedings and order would be void and may be impeached in any way and at any time. See id.

The parties agree that the present-day legal status of the disputed highway segment turns on the validity and legal effect of the 1926 selectboard's purported discontinuation of the highway: if the board substantially complied with the then-existing statutory scheme for highway discontinuances, the highway is discontinued and no longer exists; if not, the highway still exists.² We pause to note matters over which there is no dispute. The parties agree that the disputed segment constitutes a portion of both the 1798 Legislative Highway and the 1812 Highway. Further, the parties agree that the disputed segment which was purportedly closed lies wholly within New Haven.

In relevant sections, the 1917 General Laws of Vermont provided as follows:

§ 4452. When towns in different counties; proceedings. An application to lay out, alter or discontinue a highway extending into or through two or more towns . . . where such towns lie in different counties, shall be made to the supreme court, which shall have the same power, and shall proceed in the same manner as the county court, when the towns lie in the same county.

§ 4453 . . . . When the public good requires a highway to be laid out, altered or discontinued, extending into or through two or more towns in the same county, seven or more freeholders of such towns, or the vicinity, may apply to the county court; and such court ... may ... render judgment, as when the highway is located in only one town .

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