McAdams v. Town of Barnard

• Decision Date: 20 July 2007
• Docket Number: No. 05-542.,05-542.
• Citation: 2007 VT 61,936 A.2d 1310
• Parties: Herbert Hall McADAMS III and Letty McAdams v. TOWN OF BARNARD.
• Court: Vermont Supreme Court

936 A.2d 1310

2007 VT 61

Herbert Hall McADAMS III and Letty McAdams v. TOWN OF BARNARD.

No. 05-542.

Supreme Court of Vermont.

Motion for Reargument Denied August 30, 2007.

July 20, 2007.

Theresa S. DiMauro, J.

Karen McAndrew and Douglas D. Le Brun of Dinse, Knapp & McAndrew, P.C., Burlington, and Kent J. Rubens of Rieves, Rubens & Mayton (Of Counsel), West Memphis, Arksansas, for Plaintiffs-Appellants.

Timothy M. Eustace of Stitzel, Page & Fletcher, P.C., Burlington, for Defendant-Appellee.

Present: REIBER, C.J., DOOLEY, JOHNSON, SKOGLUND and BURGESS, JJ.

BURGESS, J.

¶ 1. Herbert and Letty McAdams ("landowners") brought this action in superior court against the Town of Barnard for declaratory judgment to quiet title to their land in Barnard. Landowners' motion for summary judgment was granted in part, providing them with a judgment order stating that "there are no known public roads, easements, rights-of-way or trails" (hereinafter "public road" or "road") on their property. To the extent landowners sought additional relief in the form of a judgment that no other public roads exist, the court granted the Town's motion to dismiss. Landowners appealed the judgment, believing a definitive statement that there are no public roads on their land is necessary to quiet title. We reverse and remand.

¶ 2. The facts are not in dispute. Landowners hold title to approximately 280 acres in Barnard ("the property"). In 2001, landowners sought to make improvements to the property. As part of this process, they requested that the Town discontinue an abandoned, dead-end road, Town Highway (TH) # 15, that crossed the property. The Town conducted a discontinuance hearing pursuant to 19 V.S.A. § 709 (requiring notice and hearing to discontinue a road) and discontinued the portion of TH # 15 crossing the property. Some time later, landowners were granted a building permit for their improvements but a group of Town residents appealed issuance of the permit. Landowners ultimately prevailed in obtaining the permit after they appealed to the Environmental Court. Landowners then filed suit in federal court against the residents who had opposed the permit, claiming that the residents had acted in concert with state actors to deprive landowners of the permit in violation of their constitutional rights to due process and equal protection. The Town itself was not named as a defendant in that suit.

¶ 3. In 2003, the Town produced a set of maps depicting all parcels of land and known public highways and rights-of-way within the Town. The Town's maps indicated another public road, "Dean Road," crossed a portion of the property. There was also reference in Town records to another road of undetermined location, known as the "page 4 survey road" or "Fairbanks Road" that possibly affected landowners' title. Landowners thereafter filed the present suit against the Town to determine whether any valid town highways or rights-of-way existed on the property.

¶ 4. In August 2004, the Town and landowners entered into a mediation agreement in the present case. The Town agreed to initiate § 709 proceedings to discontinue Dean Road and Fairbanks Road. The Town also agreed to admit that it was not aware of any other roads or rights-of-way and that it claimed no interest in any roads or rights-of-way on the property. The agreement provided that, when these tasks were completed, landowners could move for summary judgment, with the Town reserving its right to respond to such a motion. In November 2004, the Town initiated proceedings to discontinue the two roads.

¶ 5. Meanwhile, in the federal suit, landowners moved to amend their complaint to add the Town as a defendant. Prior to a ruling on that motion, a mediation session was held in January 2005. At the mediation session, all parties to the federal suit and the Town entered into a Memorandum of Settlement that provided in pertinent part:

3. The Town of Barnard agrees, subject to formal Selectboard approval, that it will promptly take all appropriate legal steps to discontinue any known or claimed town roads or highways that traverse or lie within the McAdams' property, including taking all steps necessary to ratify its prior action in discontinuing TH 15. Warnings to accomplish the foregoing shall be published no later than 30 days after the signing of this Agreement, and the action shall proceed with all deliberate speed.

4. The Town agrees that if any other roads on the McAdams' property not presently known, become know[n], the Town will at that time take all appropriate steps to initiate discontinuance proceedings with respect to such newly-discovered ancient roads.

5. The defendants, as individuals and in their official capacities, agree that they will not appeal or interpose any objection to the Town's actions in discontinuing the roads as stated in Paragraphs 3[and] 4.

6. The parties will exchange releases with respect to all claims, including but not limited to all claims for costs and attorneys' fees pursuant to 42 U.S.C. §§ 1983 and 1988, and settlement consideration at such times as the steps taken in Paragraph 3 have been accomplished and court orders have been entered on the settlement agreements in both the pending state and federal cases, and the actions have been dismissed, with prejudice.

The Town completed discontinuance of all three known roads,¹ and subsequently requested landowners to stipulate to dismissal of the state court action pursuant to the federal mediation agreement. Landowners refused to agree to dismissal, maintaining that they were entitled to move for summary judgment on their claim for declaratory judgment pursuant to the state mediation agreement. Landowners subsequently filed a motion for summary judgment on June 20, 2005. At a hearing in superior court to discuss the proposed stipulated dismissal and landowners' objections to it, the court indicated that it would wait for a formal motion to dismiss from the Town and rule on both motions together.

¶ 6. In support of dismissal, the Town argued first that it had complied with the federal settlement agreement and the case should be dismissed on that basis. The Town further argued that the case had become moot when all known roads over the property were discontinued and that the court was without authority to declare any remaining, unknown roads to be nonexistent when the statute provided only for discontinuance by town selectboards. Landowners took the position that the federal court settlement agreement did not supersede the state settlement agreement's provision that the state case would be decided on summary judgment. At most, said landowners, the federal court agreement was ambiguous and other evidence pointed to their intent that the state case not be dismissed. In response to the Town's mootness argument, landowners maintained that a quiet title action is not moot until all of a party's claims to a property are resolved, and that had not yet happened because there still existed the possibility that the Town could, at some later time, claim some newly discovered right-of-way across the property. Landowners further maintained that it was within the court's equitable power to declare the existence or nonexistence of roads, the statutory provisions for discontinuance notwithstanding.

¶ 7. The lower court's decision adopted all of the Town's arguments and concluded that landowners were not entitled to the judgment they sought for three reasons. First, the court said, the undisputed facts supported only a conclusion that there were no known public roads on the property, not that there were no public roads at all. Second, the court lacked authority to declare the non-existence of any public roads because roads may only be discontinued in accordance with a statutory procedure. Finally, the Town was entitled to dismissal based on the federal settlement agreement.

¶ 8. On appeal, neither party briefed dismissal pursuant to the federal settlement agreement, focusing instead on the superior court's authority for declaring the nonexistence of any roads on a property and whether there was an actual case or controversy remaining. Arguments not briefed are waived. Bigelow v. Dep't of Taxes, 163 Vt. 33, 37-38, 652 A.2d 985, 988 (1994). We therefore move to the issues of mootness and the court's authority to declare the nonexistence of roads.²

¶ 9. Landowners brought this suit as a declaratory judgment action to quiet title. Declaratory judgment is appropriate when a judgment "will terminate the controversy or remove an uncertainty." 12 V.S.A. § 4715. This controversy must involve the threat of actual injury to a party's protected interest. Doria v. Univ. of Vt., 156 Vt. 114, 117, 589 A.2d 317, 318 (1991). Otherwise, "a declaratory judgment is merely an advisory opinion which [courts] lack the constitutional authority to render." Id. The Town does not dispute that the two claimed public rights-of-way provided a sufficient controversy to give the court jurisdiction at the time that landowners filed suit. The Town claims that by discontinuing the two known roads, any threat of actual injury to landowners ended, and consequently, jurisdiction was extinguished.

¶ 10. Accepting the Town's position would allow quiet title defendants to escape final resolution of all potential disputes by taking each claim piecemeal. An adjudication that a right-of-way does not exist in one place on a property would not preclude subsequent litigation as to whether a right-of-way exists in another place on the same property. Some jurisdictions have taken a more economizing approach that provides for all potential disagreements to be adjudicated at one time: "The object of the [quiet title] action is to finally settle and determine, as between the parties, all conflicting claims to the property in controversy, and to decree to each such interest or estate therein as he may be entitled to." W. Aggregates, Inc. v. County of Yuba, 101...