Okemo Mountain, Inc. v. Town of Ludlow Zoning Bd. of Adjustment

• Citation: 671 A.2d 1263,164 Vt. 447
• Decision Date: 15 December 1995
• Docket Number: No. 94-331,94-331
• Parties: OKEMO MOUNTAIN, INC. and Vermont Department of Forests, Parks and Recreation v. TOWN OF LUDLOW ZONING BOARD OF ADJUSTMENT, John Lysobey, et al.
• Court: United States State Supreme Court of Vermont

Page 1263

671 A.2d 1263

164 Vt. 447

OKEMO MOUNTAIN, INC. and Vermont Department of Forests Parks and Recreation v. TOWN OF LUDLOW ZONING BOARD OF ADJUSTMENT, John Lysobey, et al.

No. 94-331.

Supreme Court of Vermont.

Dec. 15, 1995.

On Appeal from Windsor Superior Court; John P. Meaker, J.

Richard H. Coutant of Salmon & Nostrand, Bellows Falls, for plaintiff-appellee Okemo Mountain, Inc.

Jeffrey L. Amestoy, Attorney General, and Conrad W. Smith, Assistant Attorney General, Montpelier, for plaintiff-appellee Department of Forests, Parks & Recreation.

John Lysobey, pro se, Ludlow, intervenor-appellant.

Before ALLEN, C.J., GIBSON, MORSE and JOHNSON, ¹ JJ.

GIBSON, Justice.

Landowners John and Christine Lysobey and Wayne and Beverly Lysobey appeal from a superior court summary judgment, which held in favor of plaintiff Okemo Mountain, Inc. (Okemo) that the Lysobeys do not have public road frontage or access by easement to a public road, as required under zoning regulations of the Town of Ludlow in order to develop land. The Lysobeys maintain that the court erred in concluding that (1) any easement the Lysobeys or their predecessors-in-interest may have had over Okemo Mountain Road has been extinguished by adverse possession, and (2) Okemo Mountain Road is not a public road under the Town's zoning regulation § 610.3 and 24 V.S.A. § 4406(2). ² We reverse.

In 1986, the Lysobeys purchased thirty-four acres on Okemo Mountain in Ludlow, Vermont, adjacent to Okemo State Forest. Access to the property is via Okemo Mountain Road, which begins at Route 103 and proceeds up Okemo Mountain passing through land owned by Okemo and then through Okemo State Forest. The Lysobeys' land was once owned by Herbert E. Walker, who acquired the property by quitclaim deed dated August 1, 1922.

During the summer of 1935, the State of Vermont acquired rights-of-way across privately owned land to construct Okemo Mountain Road. Walker was one of the landowners who conveyed a right-of-way to the State. By quitclaim deed dated September 23, 1935, Walker conveyed to the State "exclusive use and control of a strip of land four (4) rods wide" across his land, conforming to the proposed Okemo Mountain Road surveyed and marked on the land. Walker reserved rights to all wood cut on the strip and "the right to pass and repass over said strip of land above described and any other like strips of land" lower down on the mountain and "the road to be constructed thereon." The State subsequently constructed Okemo Mountain Road.

In 1940, Walker quitclaimed to the State of Vermont a 1.75-acre parcel of land, which included almost all the land Walker owned over which the road passed. Two small sections of the road, less than one-quarter the width of the road, were not conveyed. The 1940 quitclaim deed states: "I, Herbert E. Walker ... have REMISED, RELEASED, AND FOREVER QUIT-CLAIMED unto the said State of Vermont, all right and title which I, the said Herbert E. Walker or my heirs have in, and to a certain piece of land in Ludlow...." It further states that "Herbert E. Walker will have anc [sic] claim no right in or to the said quit-claimed premises."

In 1956, Okemo began operating a ski area on Okemo Mountain. Access to the base lodge at the ski area is via Okemo Mountain Road. The road above the lodge has not been maintained for vehicular traffic during the winter, but has been used as a ski trail. This upper section of the road is on land owned by the State of Vermont, except for the small sections noted above that were not conveyed to the State in 1940. The road is regulated by the Department of Forests, Parks and Recreation (Department), which currently classifies the road as a State Forest Highway, "Class B," a paved or unpaved State Forest Highway that is generally open to the public, but may be closed at certain times of the year, restricting public access. The Department does not consider Okemo Mountain Road a public highway, although it is open for public use from mid-May through the end of October.

In 1963, the Department leased to Okemo part of Okemo State Forest to develop and operate a ski area. The lease purported to give Okemo authority to restrict adjoining landowners from use of the roads and other leased premises. The Department and Okemo entered into a new lease for ski area development on Okemo Mountain in 1975. The parties dispute whether the lease agreement has been continuous since 1963.

In October 1988, the Lysobeys applied for a permit to build a residential home on their land adjacent to Okemo State Forest and accessed via the section of Okemo Mountain Road above the base lodge. The zoning administrator approved the permit application, and Okemo filed a notice of appeal with the Ludlow Zoning Board of Adjustment, challenging the Lysobeys' right to pass over Okemo Mountain Road to their property. Under Ludlow's zoning regulations, "No land development may be permitted on lots which do not either have frontage on a public road or public waters or, with the approval of the Planning Commission, access to such a road or waters by a permanent easement or right-of-way (at least 20 feet in width)." Town of Ludlow, Vermont, Zoning and Flood Hazard Regulations § 610.3 (Mar. 6, 1990). Following hearings, the Board affirmed the decision of the zoning administrator, concluding that the Lysobeys have a right-of-way over Okemo Mountain Road above the base lodge and that it provides access to a public road.

Okemo and the Department appealed the decision of the zoning board to the superior court. Subsequently, the zoning administrator granted the Lysobeys a second permit to construct decks and a generator house on the land; this permit was also affirmed by the zoning board and appealed to superior court. The Lysobeys intervened in the two appeals and filed a cross-complaint for declaratory and injunctive relief, requesting (1) a declaration of the rights of the parties to use of Okemo Mountain Road, and (2) an injunction preventing Okemo and the Department from interfering with the Lysobeys' right to use the road.

Addressing cross-motions for summary judgment, the superior court reversed the decision of the zoning board of adjustment. The court concluded that any year-round right-of-way that may have existed appurtenant to the Lysobeys' land was extinguished by adverse possession in 1978, fifteen years after the Department first leased to Okemo the right to control access to upper Okemo Mountain Road. The court further concluded that Okemo Mountain Road was not a public road under the Town zoning regulation § 610.3. Accordingly, it held that the Lysobeys' land does not have frontage on a public road or access to a public road by a permanent easement. The Lysobeys appeal.

I.

In reviewing an appeal from a summary judgment, we apply the same standard as the superior court. "To prevail on a motion for summary judgment, the moving party must show that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law." Palmer v. Bennington Sch. Dist., 159 Vt. 31, 35, 615 A.2d 498, 500 (1992).

We begin by examining the nature of the right reserved by Walker in 1935, an issue the trial court did not reach. A reservation is a clause in a deed by which the grantor retains one or more rights in the estate granted. See Lincoln Sav. & Loan Ass'n v. State, 768 P.2d 733, 735 (Colo.Ct.App.1988). It lessens the grant from what it would be without the reservation. Miller v. Lapham, 44 Vt. 416, 434-35 (1872); see also Smith's Ex'r v. Jones, 86 Vt. 258, 260, 84 A. 866, 867 (1912) (to reserve is to retain, keep back, withhold from operation of grant). Thus, only rights held by the grantor at the time of the conveyance may be reserved in a deed. Boudreau v. Coleman, 29 Mass.App.Ct. 621, 564 N.E.2d 1, 6 (1990).

The 1935 deed granted the State exclusive use and control of a strip of Walker's land to construct Okemo Mountain Road and reserved to Walker a right-of-way over the section of the road on this strip of his land. ³ The deed also attempted to reserve a right-of-way over portions of Okemo Mountain Road below his land, where the State had obtained similar rights of use in order to construct Okemo Mountain Road. Walker could not reserve rights, however, that he did not already have, nor could the State create an easement across its land merely by accepting Walker's deed. Thus, the issue is whether Walker had an easement over lower parts of the mountain at the time he granted the deed to the State in 1935.

In support of its motion for summary judgment, Okemo presented the affidavit of its attorney, stating that none of the deeds in the chain of title to the Lysobey land contains any reference to an access easement or right-of-way over adjacent properties. The Lysobeys pointed out that the Walker deed did indeed reference such an easement, as did the deeds of other landowners who granted the State similar easement rights to build Okemo Mountain Road. To construe a deed, we look first at the language of the instrument because we presume it declares the intent of the parties. Withington v. Derrick, 153 Vt. 598, 603, 572 A.2d 912, 914 (1990). It is reasonable to infer from these deeds that the landowners intended these deeds to reserve a right-of-way to access their lands. Because the deeds are ineffective to grant such a right-of-way to the landowners, we presume that the landowners intended to retain a right that they believed that they already had. The use of the word "reserve" also supports this interpretation.

To ascertain the intention of the parties, it is also proper to consider the circumstances existing at the time the deed was made. Sheldon Slate Prods. v. Kurjiaka, 124 Vt. 261, 267, 204 A.2d 99, 103 (1964). The Lysobeys presented maps indicating that a roadway going up Okemo Mountain existed prior to the State constructing Okemo Mountain Road and newspaper articles indicating that...