In re Town Hwy. No. 20 of Town of Georgia

• Decision Date: 23 July 2003
• Docket Number: No. 02-389.,02-389.
• Citation: 834 A.2d 17
• Court: Vermont Supreme Court
• Parties: In re TOWN HIGHWAY NO. 20 OF the TOWN OF GEORGIA.

834 A.2d 17

In re TOWN HIGHWAY NO. 20 OF the TOWN OF GEORGIA.

No. 02-389.

Supreme Court of Vermont.

July 23, 2003.

Motion for Reargument Denied September 19, 2003.

Present: AMESTOY, C.J., DOOLEY, JOHNSON and SKOGLUND, JJ., and FREDERIC W. ALLEN, C.J. (Ret.) Specially Assigned.

ENTRY ORDER

¶ 1. Defendant Town of Georgia (the Town) and intervenors Gregory and Janet Bechard (Intervenors) appeal from a superior court decision ordering the Town to allow petitioner John Rhodes (Petitioner) to improve and maintain a section of Town Highway # 20 (TH # 20) and ordering Intervenors to remove all personal property they had stored in that section of the TH # 20 right of way. Intervenors separately appeal from denial of their cross-claim that they had acquired title to an acre of Petitioner's land by adverse possession and had acquired a prescriptive easement over a road, called the "Pent Road," through Petitioner's property. On appeal, the Town and Intervenors make several procedural and substantive claims. We affirm.

¶ 2. The first part of this dispute revolves around the border between Petitioner's farm and Intervenors' farm, both located in the Town of Georgia. Much about this border is disputed, including whether TH # 20 constitutes a portion of this border. Intervenors claim that the road does not abut Petitioner's property because it runs to the south, not to the north, of Intervenors' house. The trial court, however, found that a 600-foot section of TH # 20 formed a border between the northwest corner of Intervenors' property and the southeast portion of Petitioner's property, finally meeting with Bradley Hill Road to form a "T" intersection.

¶ 3. On June 10, 1970, the selectboard of the Town decided to hold a hearing on whether to discontinue a portion of TH # 20 and legally reclassify that section from a town highway to a trail.¹ At the hearing, held on June 30, 1970, the selectboard considered the proposed reclassification. Ten months later, on May 10, 1971, the selectboard voted to reclassify a portion of TH # 20 as a trail. Intervenors claim that the portion of TH # 20 at issue in this case was exactly that part of TH # 20 that was reclassified. The trial court, however, found many discrepancies between the selectboard's reclassification order and the actual portion of TH # 20 in dispute, stating that "the 1971 order does not describe an existing section of TH # 20." Additionally, the Town was required to give notice of the hearing to all persons owning or interested in land abutting the highway — which included Petitioner's father, H.C. Rhodes, who owned the farm at the time — via registered mail. 19 V.S.A. § 531 (1968), repealed by 1985, No. 269 (Adj. Sess.). The parties dispute whether or not Petitioner's father received proper notice, although the superior court found that he had not.

¶ 4. In 1995, Petitioner formally asked the selectboard to determine the location of TH # 20 in the southeastern area where it abuts his farm and requested that the Town reconsider the 1971 selectboard reclassification of the road as a trail. He also sought permission to make improvements to the roadway in order to allow vehicles to safely cross TH # 20 from Bradley Hill Road and to make the road safe for transit over rock ledges located in the TH # 20 right of way. Additionally, Petitioner sought an order requiring Intervenors to remove the fenced gate they had erected in the middle of TH # 20 and the old farm equipment and wood they had stored in the highway right of way that blocked access to the Pent Road. On April 18, 1997, the selectboard denied all of Petitioner's requests.

¶ 5. Petitioner then appealed the decisions of the Town of Georgia selectboard to the Franklin County Superior Court, pursuant to 19 V.S.A. §§ 34 and 740. Intervenors sought and were granted leave to intervene. On June 26, 2002, the superior court found that TH # 20 was legally laid out in 1813 and that the reclassification in 1971 was void. The court also found that the selectboard had acted unconstitutionally in denying Petitioner's requests and ordered the Town to allow Petitioner to improve TH # 20 and to direct Intervenors to remove their personal property from the road. Intervenors and the Town appealed the trial court's decision and the Town filed a cross-appeal.

¶ 6. We first address Intervenors' claims. Intervenors' first claim on appeal is that the trial court erred in finding that the portion of TH # 20 that runs along the northwestern border of their property was laid out in 1813 in compliance with the then-applicable law. Intervenors claim that the law in effect at the time TH # 20 was laid out was a 1782 law that required a highway to be laid out by "chain and compass." See "An Act Directing the Laying Out of Highways," Oct. 21, 1782, reprinted in 13 State Papers of Vermont 129-30 (J.A. Williams ed., 1965). Intervenors' charge that because the original surveyors described the highway in "rods and degrees," and not "chain and compass," they did not substantially comply with the statute in effect at the time and thus never officially created a highway. From this proposition they argue that TH # 20 should be laid out to the south of their house, and not to the north. We disagree.

¶ 7. We have difficulty understanding why Intervenors' argument should lead to the conclusion that TH # 20 should be located to the south of their house, rather than to the north. Nevertheless, for purposes of this appeal, we will address the merits of their argument. The trial court held that because "chains" refers to a measurement of four rods and degrees are determined by a compass, the description of the highway substantially complied with the statute, and thus TH # 20 was correctly laid out in 1813. We agree with the superior court that the highway was correctly laid out in 1813. We find, however, that the governing law when TH # 20 was laid out was an 1808 law, not the 1782 law cited by Intervenors. That 1808 law required "every highway or road which shall in future be laid out or opened, shall be actually surveyed ... ascertaining the breadth, course and distance of such road." 1 Laws of Vermont, ch. XLV, § 1, at 446 (1808); see also Kelly v. Town of Barnard, 155 Vt. 296, 302, 583 A.2d 614, 618 (1990) (in 1816 and 1817, the procedure for establishment of a public highway was governed by 1 Laws of Vermont, ch. XLV, § 1). Because TH # 20 was described in rods and degrees, a measurement that conveys the "breadth, course, and distance" of the highway, it was properly laid out in 1813. We do not need to determine whether "rods and degrees" is equal to "chain and compass" because the applicable law in 1813 does not require a measurement in chain and compass. See Samplid Enters. v. First Vt. Bank, 165 Vt. 22, 28, 676 A.2d 774, 778 (1996) (this Court may affirm a lower court judgment where the right result was reached for the wrong reason).

¶ 8. To the extent that Intervenors' claim is more generally that the trial court was incorrect in finding that TH # 20 was laid out to the north and not the south of their house, we reject that claim. The trial court's findings of fact stand unless they are clearly erroneous. Highgate Assocs. v. Merryfield, 157 Vt. 313, 315, 597 A.2d 1280, 1282 (1991). There was sufficient evidence for the lower court to determine that the correct layout of TH # 20 is to the north of Intervenors' house. At least two surveyors testified that the road runs to the north of Intervenors' house. Additionally, a 1948 United States Geological Survey Map and other aerial maps and photographs taken in 1941, 1962, and 1996 show the road to be located to the north of Intervenors' house. Accordingly, we uphold the court's finding that TH # 20 constitutes the northwestern border of Intervenors' land and the southeastern border of Petitioner's land.

¶ 9. Intervenors' second claim on appeal is that the trial court erred in finding that the portion of TH # 20 at issue was improperly discontinued in 1971. Intervenors argue that the selectboard substantially complied with the applicable statutory requirements to discontinue highways in that proper notice of the hearing was given to the required parties and that the discontinued portion of the road was sufficiently described. We disagree.

¶ 10. When purporting to discontinue or reclassify a highway, a town must substantially comply with the statutory method for discontinuance or the resultant change will be void. In re Bill, 168 Vt. 439, 442, 724 A.2d 444, 446 (1998). We presume actions taken by a selectboard within the scope of its duties to be in accordance with statutory requirements. Id. However, when a selectboard acts outside its statutory authority, it acts without jurisdiction and consequently its proceedings are void and may be impeached at any time. Id.

¶ 11. The lower court found that the 1971 selectboard did not substantially comply with the statute, based on three factual findings. First, the trial court found that Petitioner's father — who owned the land in 1971 — did not receive the statutorily required notice of the 1971 hearing to discontinue TH # 20. Second, the court found that the 1971 vote to discontinue the highway took place ten months after the hearing, not within the sixty days that the statute required. See 19 V.S.A. § 711 (recodifying the former 19 V.S.A. § 344 (1968)).

¶ 12. Finally, the court found that the 1971 selectboard order discontinuing a portion of TH # 20 did not describe an existing section of TH # 20. The portion of TH # 20 that was discontinued was described in the minutes of the 1971 hearing as beginning at a point .34 of a mile west of the intersection of Town Highway # 10 and TH # 20. TH # 20, however, does not intersect with TH # 10. The court also found that the section of TH # 20 that was described in the notice of intention to discontinue was different from that referred to in the May 10, 1971 vote to discontinue. The notice described the...