Kelly v. Town of Barnard

• Citation: 583 A.2d 614,155 Vt. 296
• Decision Date: 19 October 1990
• Docket Number: No. 88-268,88-268
• Court: Vermont Supreme Court
• Parties: Byron K. KELLY, Sr., Byron K. Kelly, Jr., and Jeffry C. Kelly v. TOWN OF BARNARD, John Genco and Ruth Genco.

Page 614

583 A.2d 614

155 Vt. 296

Byron K. KELLY, Sr., Byron K. Kelly, Jr., and Jeffry C. Kelly v. TOWN OF BARNARD, John Genco and Ruth Genco.

No. 88-268.

Supreme Court of Vermont.

Oct. 19, 1990.

Bourdon & Cullen, Woodstock, for plaintiffs-appellees.

Rexford & Kilmartin, Newport, for defendants-appellants.

Before ALLEN, C.J., and PECK, GIBSON, DOOLEY and MORSE, JJ.

PECK, Justice.

Defendants, John and Ruth Genco, appeal a superior court order granting summary judgment in favor of plaintiffs who claim that a road crossing defendants' property is a public road. We affirm.

On appeal, defendants, the Gencos, raise a host of challenges. The two primary claims are (1) that the trial court erred in granting summary judgment because genuine issues of material fact existed and because the legal theory applied by the court was erroneous, and (2) that not all necessary parties were joined. ¹

Plaintiffs, the Kellys, own property in the Town of Barnard. They claim that sole access to the property is by the Wheat Road, continuing as the Park Hill Road which crosses defendants' land. After the plaintiffs purchased the property, defendants told them that any use of the roads would constitute trespass, as the roads had been discontinued. Plaintiffs' initial requests to the Town to upgrade the roads or to allow them to repair the roads were denied, and this action was commenced in 1985.

Plaintiffs sought judgment declaring that Wheat Road and Park Hill Road are public roads which the Town has a duty to maintain and enjoining the Gencos from interfering with plaintiffs' use of the roads. The Town of Barnard and the Gencos were named as defendants. The central issue was whether Wheat Road and Park Hill Road were properly laid out and opened in 1816 and 1788.

Plaintiffs and the Town sought summary judgment, and both motions were initially denied; however, following plaintiffs' motion to reconsider, the trial court granted summary judgment in favor of plaintiffs, ruling that Wheat Road is a class 4 public highway and that plaintiffs and the public are entitled to use the road. An amended complaint added Park Hill Road, and the trial court granted a further motion for supplemental summary judgment, declaring that road a public highway. Plaintiffs and the Town supplemented both motions with affidavits and memoranda. The Gencos submitted no materials in response. Thereafter, the plaintiffs and the Town reached an agreement dismissing the action pertaining to the Town, and acknowledging the continuing force and effect of the two summary judgment orders declaring Wheat Road and Park Hill Road public highways. After a teleconference hearing, the trial court made final disposition of the case by ordering that the prior summary judgment orders should be of "continuing force and effect," that all pending equitable claims were withdrawn without prejudice to the plaintiffs, and that all pending claims for damages were dismissed with prejudice. The Gencos filed a motion to alter, amend and strike orders and judgment orders. The trial court denied the motion. This appeal followed.

I.

When reviewing a motion for summary judgment, we apply the same standard the trial court used in ruling on the motion. Morrisville Lumber Co. v. Okcuoglu, 148 Vt. 180, 182-83, 531 A.2d 887, 888-89 (1987). To prevail, the moving party must satisfy a two-part test. It must establish that no genuine issues of material fact exist, and that the motion rests on a valid legal theory that entitles it to judgment as a matter of law. V.R.C.P. 56(c). Both in the trial court and on appeal, the moving party bears the burden of proof. Price v. Leland, 149 Vt. 518, 521, 546 A.2d 793, 796 (1988).

At the outset, we note that the Gencos provided the trial court with no evidence to counter the plaintiffs' affidavits in support of summary judgment. Plaintiffs filed two motions for summary judgment, both supported by affidavits and legal memoranda. Neither motion was opposed by the Gencos. "Nothing in our case law or the language of Rule 56" requires an adverse party to file an affidavit in opposition to a summary judgment motion. Bingham v. Tenney, 154 Vt. 96, ----, 573 A.2d 1185, 1187 (1990). However,

[w]hen a motion for summary judgment is made and supported as provided in [Rule 56], an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party.

V.R.C.P. 56(e); see Gore v. Green Mountain Lakes, Inc., 140 Vt. 262, 266, 438 A.2d 373, 375 (1981).

A.

Defendants' first claim of error is that there existed a genuine issue as to the existence of Wheat Road and Park Hill Road and the location of the roads. They also argue that whether Wheat Road and Park Hill Road are public highways is a mixed question of law and fact and that the court engaged in fact finding when it decided the status of the roads. Therefore, they conclude, summary judgment was inappropriate. We disagree.

In both cases, the only issue which the court decided when it granted summary judgment was whether the road in question was a public highway. The court based its decisions on the following facts: (1) Wheat Road and Park Hill Road exist, and have existed since the early 19th century, and (2) Wheat Road was surveyed in 1816 and recorded in 1817, and Park Hill Road was surveyed and recorded in 1788.

At the time the court granted the motions for summary judgment it had before it the following materials:

1. affidavits from John Dutton, a surveyor who had conducted extensive boundary and highway research in the Town of Barnard, stating that he had examined the Barnard Land Records and the area of the disputed roads in 1985 and had uncovered (a) a survey of the Wheat Road dated September 17, 1816 and recorded in the Barnard Land Roads and Villages Book at page 39 on January 1, 1817, and (b) a survey of the Park Hill Road dated September 9, 1788 and recorded in the Barnard Land Roads and Villages Book at page 5;

2. affidavits from Frank B. Lamson, a registered land surveyor in the State of Vermont, stating that (a) in 1985, he supervised a survey of the "so-called Wheat Road's" present centerline and the "so-called Park Hill Road's" present centerline; and (b) in the process of conducting the 1985 survey, he found (i) clear evidence of Wheat Road's and Park Hill Road's continued existence and (ii) that the centerline of the current roadbeds closely followed, for the most part, the path of the same laid out in 1816; ²

3. a certified copy of the September 17, 1816 survey of Wheat Road signed by the Barnard Selectmen and a certified copy of the September 9, 1788 survey of Park Hill Road also signed by the Barnard Selectmen.

4. a copy of the 1985 survey of the Wheat Road and the Park Hill Road conducted by Mr. Lamson.

These materials were evidence of the facts relied on by the court in making its decision. The only challenge to the determining facts consisted of a general denial by the Gencos of the following clause in the plaintiffs' complaint:

Plaintiffs' only access by road to [their] premises is over the "Wheat Road" or "Old Town Road," so called, (hereinafter referred to as the Wheat Road) to the Park Hill Road, so called. The Wheat Road, which lies solely within the Town of Barnard, also adjoins lands of Defendants John and Ruth Genco and connects with another old town highway. The Wheat Road was laid out and approved as a town highway in 1816. A survey of the Wheat Road, dated September 7, 1816 and signed by the Selectmen of the Town of Barnard, was recorded on January 1, 1817 at Page 39 of the Barnard Highway Records.

Because the plaintiffs submitted credible affidavits and documentary evidence in support of the determining facts, defendants could "not rest upon the mere allegations or denials of the adverse party's pleading," but were required to respond "by affidavits or as otherwise provided in [Rule 56] ... set[ting] forth specific facts showing that there [was] a genuine issue for trial." V.R.C.P. 56(e); see Gore, 140 Vt. at 266, 438 A.2d at 375.

B.

In order to prevail on their motion for summary judgment the plaintiffs must show that the motion rests on a valid theory of law. The defendants argue that the court applied an incorrect legal theory in deciding that Wheat Road and Park Hill Road are class 4 public roads. We disagree.

In 1816 and 1817 the procedure for the establishment of a public highway was as follows:

[E]very highway or road which shall in future be laid out or opened, shall be actually surveyed, and a survey thereof made out, entered and recorded, in the town clerk's office, where such highway or road lies, (and for want thereof, in the proprietors' clerk's office) ascertaining the breadth, course and distance of such road.

1 Laws of Vermont, ch. XLV, § 1, at 446 (1808). In 1820 the following step was added to the procedure:

[W]hen the selectmen of any town shall open any road, heretofore, or hereafter, laid out, they shall cause a certificate thereof, signed by them, or a major part of them, to be forthwith recorded in the town clerk's office, in such town; and the day on which such certificate is recorded, shall be taken and deemed to be the time of opening such road.

1820, ch. 6, § 2, at 22 (current version at 19 V.S.A. § 715). The court interpreted the "heretofore or hereafter" language to apply to "laid out." Thus, the 1820 additional step of certification for valid opening applies only to roads which were laid out but not opened before the change was enacted and to roads laid out after the passage of the provision. We agree with the court's interpretation.

This interpretation, however, does not end the matter. As the defendants point out,...