Patch v. Baird, 130-80

• Decision Date: 14 August 1981
• Docket Number: No. 130-80,130-80
• Citation: 140 Vt. 60,435 A.2d 690
• Parties: Helen PATCH v. Thomas E. BAIRD and Baird Associates, Inc.
• Court: Vermont Supreme Court

Page 690

435 A.2d 690

140 Vt. 60

Helen PATCH v. Thomas E. BAIRD and Baird Associates, Inc.

No. 130-80.

Supreme Court of Vermont.

Aug. 14, 1981.

Black & Plante, Inc., White River Junction, and Garfield H. Miller, Norwich, on the brief, for plaintiff.

McCarty & Rifkin, P.C., Brattleboro, for defendants.

Before BARNEY, C. J., and LARROW, BILLINGS, HILL and UNDERWOOD, JJ.

BARNEY, Chief Justice.

This is a trespass suit, with the defendant justifying passage over plaintiff's land on the basis of a prescriptive easement and two deeded easements. The trial court recognized one of the deeded easements, confirmed the right of way by prescription denied the trespass claim, and awarded the defendants further rights that will be dealt with separately in the opinion. It dismissed all other claims with prejudice. Both sides have appealed.

The defendant Thomas Baird is a stockholder and president of the defendant corporation, Baird Associates, Inc., which operates a plumbing and heating business. Its premises adjoin and are in the rear of the plaintiff's lot, which fronts on a public way, Bridge Street. Access from the premises of the defendant to Bridge Street has, for many years, been accomplished by travel along the northeasterly boundary of the plaintiff's property across the width of Mrs. Patch's lot onto the street. This is the only access to the business property. Back in 1916, an undefined right of way servicing the property now owned by the defendants over the land now held by the plaintiff was established in a recorded deed. A deed in 1950 set out a right of way over the same servient premises that, in essence, defined the way as twenty feet wide as measured from the northeasterly boundary of the plaintiff's parcel, and running from the defendants' land along the plaintiff's boundary to Bridge Street.

The dispute arises from the fact that the access to defendants' premises as travelled diverges from the granted right of way further onto plaintiff's land, especially where it comes out onto Bridge Street. In places this intrusion is as much as six feet and is set off by the fact that it has been paved.

The paved driveway was put in by the Town of Springfield about 1950 at the time of the installation of water and sewer lines which run under the paved driveway. This paved way is about fourteen feet wide, and its course is directed by a curb-cut in the sidewalk edging Bridge Street. The cut is positioned so that in that area the driveway extends about six feet further onto the plaintiff's lot than the limits of the twenty-foot right of way. The use of the twenty-foot right of way is also obstructed, at the Bridge Street end, by a power pole with a guy wire which closes off a little over six feet of the outer edge of the right of way.

These obstacles and the course of the paved driveway have determined the location of use since at least 1950. The extent of that usage, as evidence, is the basis of the defendants' claim of prescriptive right, and the trial court concurred in that claim.

The elements of a claim of prescriptive right are very much like those for adverse possession, Abatiell v. Morse, 115 Vt. 254, 258, 56 A.2d 464, 466 (1948); that is, the use must be open, notorious, continuous for the requisite period (in this case 15 years under 12 V.S.A. § 501), and hostile. Russell v. Pare, 132 Vt. 397, 401, 321 A.2d 77, 81 (1974). The elements of adverse use are not always expressed in the cases in the same language, see, e. g., Spencer v. Lyman Falls Power Co., 109 Vt. 294, 302, 196 A. 276, 279 (1938), and confusion sometimes results. It is essential to test the claim according to its nature and purpose, as well as with the law's intent in mind.

In this case the only element relating to a prescriptive easement that is challenged on appeal by the plaintiff is the element of "hostility." One of the problems of language, seldom appreciated, is that it is almost crudely imprecise even though most of us view it as exact and definite. Unfortunately, every word used in a descriptive way carries with it some quality derived from other usage that may lend an unwanted modifying quality to the description. This is above and beyond the infinite variations in subjective views of the word's meaning. See Latchis v. State Highway Board, 120 Vt. 120, 123, 134 A.2d 191, 194 (1957).

Here we have words like "hostile," "adverse," "exclusive," and "nonpermissive." All of these terms contain the thread of a common idea that the use of the right of way is not based on a consensual privilege given by the owner and recognizing his right to forbid such use, but rather based on a claim of a right to use the way as a limitation on the ownership of the holder of the underlying fee and without regard to permission. Thus, the "adverse" or "exclusionary" aspect required of evidence supporting a claim for a right of way by prescription relates to a contesting or challenging of a right in the owner of the fee to prohibit the use of the crossing, and contesting the existence of any right to give permission to the use. "Exclusion," in the ordinary case of adverse possession, relates to challenging the owner's right to use the land at all, and is evidenced by enclosing or fencing the land, for example, or preventing the fee owner from going on or using the land.

The nature of a right of way is such that travel or usage as access is encouraged, and the notion of barring or fencing off, although sometimes a part of the meaning of "exclusion" for adverse possession, is not appropriate here. Therefore, travel upon the right of way by the fee owner does not necessarily negate the "adverse" or "hostile" nature of the claimant. That nature is evidenced, at least in part, by usage without permission or against...