Okemo Mountain, Inc. v. Town of Ludlow, 98-498.
| Court | United States State Supreme Court of Vermont |
| Citation | 762 A.2d 1219 |
| Docket Number | No. 98-498.,98-498. |
| Parties | OKEMO MOUNTAIN, INC., Vermont Department of Forests, Parks and Recreation v. TOWN OF LUDLOW, John Lysobey, et al. |
| Decision Date | 14 July 2000 |
762 A.2d 1219
OKEMO MOUNTAIN, INC., Vermont Department of Forests, Parks and Recreationv.
TOWN OF LUDLOW, John Lysobey, et al
No. 98-498.
Supreme Court of Vermont.
July 14, 2000.
Motions for Reargument Denied September 6, 2000.
Richard H. Coutant of Salmon & Nostrand, Bellows Falls, for Appellee Okemo Mountain, Inc.
William H. Sorrell, Attorney General, Montpelier, and Ginny M. McGrath, Special Assistant Attorney General, Waterbury, for Appellee Department of Forests, Parks and Recreation.
Present: DOOLEY and MORSE, JJ., and ALLEN, C.J. (Ret.) and GIBSON, J. (Ret.), Specially Assigned.
DOOLEY, J.
Property owner John Lysobey1 appeals from a superior court decision, claiming that the court erred in holding that he does not have a right to use Okemo Mountain Road in the winter, although the road provides the only access to his property. On appeal, he claims that he has an easement over Okemo Mountain Road either by explicit reservation in a 1935 deed or by necessity. He also contends that he has a common-law right to access his abutting property via this public road, and that by denying him access to his property, the State violates his constitutional rights by depriving him of the essential attributes of property ownership without just compensation. We hold that Lysobey has a common-law right to access his property, and that closing Okemo Mountain Road for the winter violates this property right. We deny him an injunction to open the road to his use during the winter, but we hold that he is entitled to just compensation for the taking of his property right and remand for the court to determine the amount.
This is the second appeal in this case. We briefly outline the facts, which are more fully detailed in our previous decision, Okemo Mtn., Inc. v. Town of Ludlow, 164 Vt. 447, 671 A.2d 1263 (1995). In 1986, Lysobey purchased thirty-four acres on Okemo Mountain in Ludlow, Vermont. Access to the property is via Okemo Mountain Road, which passes through land owned by Okemo Mountain, Inc., and through Okemo State Forest before reaching Lysobey's property. In 1956, Okemo Mountain, Inc. began operating a ski area on Okemo Mountain. Access to the base lodge of the ski area is via Okemo Mountain
In 1988, Lysobey applied to the Town for a permit to build a residence on his land, which the zoning administrator granted. Okemo Mountain, Inc. appealed, claiming that Lysobey had no frontage on a public road, nor any permanent easement to a public road, required under the Ludlow zoning regulations to develop land. The zoning board affirmed the zoning administrator, concluding that Lysobey has a right-of-way over Okemo Mountain Road that provides access to a public road. Okemo Mountain, Inc. and the Department appealed to superior court. Lysobey intervened and filed a cross-complaint for a declaration of the rights of the parties to use Okemo Mountain Road and for an injunction to prevent Okemo Mountain, Inc. and the Department from interfering with his use of the road. On summary judgment, the superior court concluded that, even if there had been a year-round easement appurtenant to Lysobey's property, it was extinguished by adverse possession fifteen years after the road was first used as a ski trail, and thus, that Lysobey has no frontage on or access to a public road. Consequently, the court denied the building permit. Lysobey appealed to this Court.
In our first decision, Okemo Mountain Inc., we reversed the grant of summary judgment, and held that Okemo Mountain, Inc. and the Department had not established extinguishment of an easement by adverse possession. The evidence indicated that until this action, the owners of the Lysobey land did not use the easement in the winter; thus, the use of the easement as a ski trail had been compatible with that of the owner of the easement, not adverse. See Okemo Mtn., Inc., 164 Vt. at 453, 671 A.2d at 1268. We remanded the matter for a trial on two issues.
The first issue was whether Lysobey held an easement appurtenant to his land. In support of this claim, Lysobey relied on a 1935 right-of-way deed from Herbert E. Walker, his predecessor-in-title, to the State, which purported to reserve to Walker an easement over Okemo Mountain Road. At that time, the State had been planning to build Okemo Mountain Road and was acquiring rights-of-way across privately owned land to do so. Thus, Walker, one of the landowners, conveyed to the State exclusive use and control of a fourrod-wide strip of land across his land, conforming to the proposed Okemo Mountain Road surveyed and marked on the land. In the same deed, Walker reserved the right to pass over the strip of land and any other like strips of land lower on the mountain and the road to be constructed thereon. Because a grantor may reserve only rights held by the grantor at the time of the conveyance, we remanded for the court to determine "whether an easement appurtenant to the Walker lands existed at the time Walker attempted to reserve the easement in the 1935 deed." Id. at 452, 671 A.2d at 1268. If there was no easement prior to the deed, the reservation was a mere nullity. See id.2
The second issue was whether Okemo Mountain Road is a public road under 24 V.S.A. § 4406(2) and the Ludlow town ordinance,
Following the trial on remand, the court found that the trail that existed to the top of Okemo Mountain prior to 1935 did not go through or near the Walker lands. Okemo Mountain Road was designed to be longer and less steep than the earlier trail, and the new road passed by and through the Walker lands. The court concluded that there was no easement appurtenant to the Walker lands in 1935 when Walker attempted to reserve the right to pass over Okemo Mountain Road in his deed to the State. Because Walker could not reserve what he did not have, the court concluded that the deed did not reserve any right to pass over Okemo Mountain Road.3 The court also held that Lysobey had not proved the elements necessary to obtain an easement by necessity.
On the other hand, the court found that the intent of the State in acquiring the right-of-ways over the private land on Okemo Mountain was to construct a road for public use. It thus declared Okemo Mountain Road a public road because it is on public land for the use of the general public. Nonetheless, the court ruled that the Department exercises control over the use of Okemo Mountain Road under the authority granted to it by 10 V.S.A. § 2603. As noted in Okemo Mountain, Inc., 164 Vt. at 449, 671 A.2d at 1266, the Department classifies the road as a State Forest Highway, Class B, a paved or unpaved highway generally open to the public, but that may be closed to public access during certain times of the year. The court found this status consistent with the State's original intent when it acquired the rights-of-way to build the road.
Based on these conclusions, the court: (1) granted Lysobey the zoning and building permits, including a subsequent application to construct a generator house and deck; (2) ruled that the Department had delegated its authority over Okemo Mountain Road to Okemo Mountain, Inc. pursuant to lease agreements; and (3) held that Okemo Mountain, Inc. has the legal right to maintain the upper portion of Okemo Mountain Road as a ski trail, and Lysobey has no right to interfere with such use. Lysobey appeals to this Court again.
I. Easement
Lysobey first claims that the 1935 Walker deed alone proves the existence of an easement to access his property. As we held in our previous decision, Walker could reserve by deed only rights that he held at the time. See id. at 452, 671 A.2d at 1268. On remand, Lysobey had the burden of proving that Walker had an easement to access his land when he executed the reservation of such an easement in the 1935 deed. He failed to do so. The State presented evidence indicating that the old trail did not provide access to the Walker lands, and the court found this evidence credible. Accordingly, the court concluded that Walker did not have an easement over Okemo Mountain Road when he attempted to reserve one in the 1935 deed. Because the trial court is in a unique position to assess the credibility of the witnesses and weigh the evidence, we will uphold its findings unless clearly erroneous. See Kanaan v. Kanaan, 163 Vt. 402, 405, 659 A.2d 128, 131 (1995). Here,
Lysobey also claims that the court erred in ruling that he does not have a right-of-way by necessity over Okemo Mountain Road. To obtain a way of necessity, one must show that (1) there was a division of commonly owned land, and (2) the division resulted in creating a landlocked parcel. See Traders, Inc. v. Bartholomew, 142 Vt. 486, 492, 459 A.2d 974, 978 (1983). In such circumstances, the owner of the landlocked property is entitled to a way of necessity across the land formerly held in common....
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