Kirkland v. Kolodziej, 14–339.

• Decision Date: 17 July 2015
• Docket Number: No. 14–339.,14–339.
• Citation: 128 A.3d 407
• Court: Vermont Supreme Court
• Parties: Bruce KIRKLAND and Gordon Kirkland v. James KOLODZIEJ and Barbara Kolodziej.

128 A.3d 407

Bruce KIRKLAND and Gordon Kirkland

v.James KOLODZIEJ and Barbara Kolodziej.

No. 14–339.

Supreme Court of Vermont.

July 17, 2015.

George Anthes and Thomas W. Costello of Costello, Valente & Gentry, PC, Brattleboro, for Plaintiffs–Appellees.

Amanda T. Rundle and Christopher M. Rundle of Rundle & Rundle, PLLC, Springfield, for Defendants–Appellants.

Present: REIBER, C.J., DOOLEY, SKOGLUND, ROBINSON and EATON, JJ.

DOOLEY, J.

¶ 1. Defendants James and Barbara Kolodziej appeal the decision of the Windham Superior Court granting declaratory judgment in favor of plaintiffs Bruce and Gordon Kirkland on plaintiffs' action to quiet title in a road traversing defendants' land and providing access to plaintiffs' land. Following a bench trial, the court found that the road had been established formally as a public highway. We conclude that plaintiffs provided insufficient evidence to prove that a public highway had been established in the segment of the road at issue, and reverse.

¶ 2. The parties to this appeal are neighboring landowners in Rockingham, Vermont. Their dispute centers on a segment of Petty Road that crosses defendants' property and is used by plaintiffs to access their property.¹ Petty Road, as it exists today and when this dispute began, runs in an easterly direction from its intersection with Gowing Road and northeast to the Springfield town line.² Plaintiffs assert that the entire length of Petty Road was dedicated as a public highway in the early 1800s, while defendants contend that only the eastern segment was so dedicated. We agree with defendants and hold that plaintiffs have not proven that the western segment of Petty Road is a public highway.

¶ 3. Except where otherwise noted, the following background facts are not in dispute. In 1978, plaintiffs acquired sixty acres in Rockingham. The deed noted that the property "includes the Petty Road." A portion of the boundary, as repeated from an earlier 1962 deed, is described as follows:

Beginning at a stonewall intersection on the Easterly right-of-way limit of the so-called Gill Gowing or Mason Road and on the Rockingham–Springfield Town Line, said stonewall intersection being the Northwest corner of the parcel being described.... Thence Southwesterly ... along an extension of a stone wall ... this line being the Southeasterly right-of-way limit of the so-called "Petty Road"....

¶ 4. In 1983, defendants acquired approximately 23.5 acres abutting plaintiffs' parcel to the west. The deed referenced a survey that depicts Gowing Road as the northwesterly boundary and shows "the approximate location of Petty Road purported to be a discontinued Pent Road"³ crossing defendants' property from its intersection with Gowing Road to the west and continuing east to plaintiffs' property.

¶ 5. Plaintiffs live out of state and visit their property for recreational purposes several times each year. With the exception of a small camper, the property remains unimproved. Until the events that prompted this lawsuit, plaintiffs gained access to their property by traveling north along Gowing Road and then east along a wood road—the segment of Petty Road at issue here—through defendants' property and onto their own land. On the ground, the segment of Petty Road running from Gowing Road to plaintiffs' property is plainly marked and lined for much of the way with old stone walls. In recent years, the road has served as the sole means of access to other properties to the east of plaintiffs' land.

¶ 6. In 2006, defendants took steps toward constructing a dwelling on the property abutting plaintiffs' parcel to the west. Acting under the assumption that the segment of Petty Road running through their property was a private way, defendants sought to limit public access to the road. Defendants relied on the language in their deed describing the road as "a discontinued pent road" and the lack of any official town records indicating otherwise. Defendants applied for a permit to construct a new driveway to access the proposed house site. In doing so, they indicated their intention to remove the existing driveway—the segment of Petty Road running through their property and used by plaintiffs. In 2007, the selectboard granted defendants' permit. The permit made no reference to the existing driveway and did not require that the existing driveway be eliminated for construction of the new access.

¶ 7. While constructing the new driveway, defendants deposited large stumps and other debris along Petty Road, several hundred feet from its intersection with Gowing Road. This debris rendered that section of Petty Road impassable. When plaintiffs visited their property in the fall of 2007, before even reaching Petty Road, they encountered a large tree trunk lying across Gowing Road, just south of its intersection with Petty Road, completely obstructing vehicular travel.⁴

¶ 8. Since 2007, plaintiffs have gained permission to access their land through neighboring property to the north.⁵ Currently, deferred maintenance along Gowing Road to the north of its intersection with Petty Road has made the road virtually impassable by the average vehicle and therefore provides plaintiffs no practical access to the northwestern corner of their property. Moreover, the northwestern comer is comprised of a steep ledge, making construction of a road into that portion of the property prohibitively expensive.

¶ 9. Plaintiffs brought an action in the trial court seeking to quiet title to Petty Road, enjoin defendants from obstructing Gowing Road, and recover damages for nuisance against defendants for obstructing plaintiffs' access. The parties filed cross-motions for summary judgment, which the trial court denied in a February 28, 2014 order. With respect to the status of Petty Road, the court stated:

[T]here is evidence that the road was established prior to 1806, even if formalities were not observed; that the portion in question was discontinued and reestablished as a pent road in 1842 and 1843; and that the disputed portion has been in public use continuously until Defendants obstructed it. This sequence of events, if supported by a preponderance of the evidence, would justify the conclusion that Plaintiffs' predecessors and the public had acquired rights by dedication and acquiescence to use the road and traverse the land now owned by Defendants.

The court also concluded that a factual question remained as to who was responsible for placing the materials that obstructed Gowing Road.

¶ 10. During a three-day bench trial, the court took evidence on the status of Petty Road and made the following findings of fact with respect to the road's historical origins. Present-day Petty Road traverses what were designated historically as Lots 4, 5, and 6 of Range 1 in the Town of Rockingham—the Dutton, Petty, and Gleason lots, respectively. In 1821, the selectmen laid out the easternmost 2500 feet of Petty Road, running from the eastern edge of Lot 5 and crossing all of Lot 6 before reaching the Springfield town line. Defendants do not dispute that the eastern segment has been in continuous use as a public highway since its dedication. The dispute here centers on the segment of Petty Road that extends west to its intersection with Gowing Road near the western edge of Lot 4. Petty Road, as laid out in 1821, was described as extending from "the road that leads from Stephen Dutton's to Solomon Petty's" to the Springfield town line. Plaintiffs' expert surveyor testified that the road referenced in the above description likely was the disputed western segment of Petty Road. The court acknowledged that "neither party has located a survey, or other recording of proceedings to lay out the road" but stated that it was "likely that [Petty Road] had been previously legally acknowledged as a town road."

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¶ 11. An 1825 conveyance of land in the southern part of Lot 5 described a portion of the boundary as "beginning on the east side of [said] lot on the south side of the road that leads from Stephen Dutton's to Springfield by the land of Thadeous Gleason" and continuing "on said road as it is now traveled on the north side of the aforesaid Solomon Petty's house." According to the court, this description strongly implies the recognition of Petty Road as a public highway along its entire length, including the disputed western segment. Similar references are found in conveyances in 1826, 1834, 1835, and 1841.

¶ 12. On November 16, 1842, the selectboard granted a petition to "discontinue[ ] so much of the road leading from Bartons Mills through the Petty farm so called to Springfield line ... [b]eginning at the junction of said road with the Mason road so called running and through the Petty farm to Springfield line." A few months later, on March 4, 1843, the selectboard altered the resolution adopted the previous November and established "a pent road" over the previously discontinued road "beginning at the junction of the old road that leads from Bartonsville through the Petty farm so called to Springfield line with the Mason road so called." The resolution specifically referred to the location of the pent road as "along the survey of the old road discontinued on the 16th of November last."

¶ 13. Based upon deed descriptions and testimony from plaintiffs' expert surveyor, the trial court found that present-day Gowing Road, which marks the western terminus of Petty Road, is the Mason Road referred to in the historical documents. Although defendants' expert offered testimony of an alternate location for Mason Road, no additional evidence supported this hypothesis, and the court found the evidence in favor of Mason Road as the location of presentday Gowing Road "much stronger and more persuasive."

¶ 14. Plaintiffs were unable to locate any earlier survey or description of the disputed western portion of Petty Road in any other resolution or recorded act of the selectboard. The only other testimony offered with respect to the existence of the pent...