Rowe v. Lavanway

• Decision Date: 30 May 2006
• Docket Number: No. 05-043.,05-043.
• Citation: 2006 VT 47,904 A.2d 78
• Parties: James ROWE and Valerie Banschbach v. Michael LAVANWAY and Janet Lavanway.
• Court: Vermont Supreme Court

904 A.2d 78

2006 VT 47

James ROWE and Valerie Banschbach v. Michael LAVANWAY and Janet Lavanway.

No. 05-043.

Supreme Court of Vermont.

May 30, 2006.

COPYRIGHT MATERIAL OMITTED

Present: REIBER, C.J., JOHNSON, SKOGLUND and BURGESS, JJ., and McCAFFREY, District Judge, Specially Assigned.

ENTRY ORDER

¶ 1. Plaintiffs James Rowe and Valerie Banschbach appeal from the trial court's order, which found that defendants Michael and Janet Lavanway possessed a right-of-way across their property pursuant to the terms of an 1881 deed. They argue that the trial court erred in: (1) interpreting the 1881 deed; (2) rejecting their claim that their predecessor-in-interest had extinguished the right-of-way; and (3) concluding that automobile use was allowed on the easement. We affirm.

¶ 2. Plaintiffs and defendants are neighboring landowners in Jericho, Vermont. Defendants own a significant portion of acreage to the north of plaintiffs, and they claimed a right-of-way extending northerly from Palmer Lane across the easternmost lands of plaintiffs, terminating at and affording access to their meadow. In September 2002, plaintiffs filed a complaint against defendants, alleging that defendants had trespassed on their property by accessing the alleged right-of-way. Plaintiffs sought injunctive relief against any further trespass by defendants. A court trial was held, which included a site visit, and the court found in favor of defendants.

¶ 3. The court concluded that an appurtenant right-of-way had been created by an 1881 deed (from Eastman and Nutting to Brown) that was within defendants' chain-of-title. The deed provided in part:

Said Brown his heirs or assigns are forever to have the right to pass through other lands now owned by said Eastman and Nutting in the lane as it now is in passing to and from the land hereby conveyed to said Brown for all purposes whatever.

. . . .

We also hereby mean to convey to the said Brown the lane about thirty-feet wide on the southeasterly side of the land now occupied by Levi Nutting as a pasture and leading to land now and heretofore owned by said Brown, and bounded on the southeasterly side by land now belonging to Harmon Sherman's Estate. Said Brown agrees to put up all bars in the lane in passing to and from the land hereby conveyed.

TO HOLD SAID GRANTED PREMISES WITH THE APPURTENANCES THEREOF FOREVER.

¶ 4. The court found that the passage cited above in bold constituted the description and grant of the right-of-way at issue, and the passage in small capitals was the deed's habendum. See Kipp v. Chips Estate, 169 Vt. 102, 104 n.1, 732 A.2d 127, 129 n.1 (1999) ("The habendum clause in a deed typically sets forth the estate to be held by the grantee. While the granting clause actively transfers the land from the grantor to the grantee, the habendum clause seeks to describe the type of title that has been granted."). The court rejected plaintiffs' contention that the absence of words of inheritance rendered the grant a mere personal license to Brown. The court explained that, although the words of inheritance had not been included in the granting clause or the habendum, the word "appurtenances" was included in the habendum. The court found that there were only two possible appurtenant easements in the deed—those created by the language italicized and bolded above. It concluded that both provisions created easements and each satisfied the criteria for an easement appurtenant because they served a parcel of land. The court thus found that to give meaning to the word "appurtenances" in the habendum, the parties must have intended both easements to be appurtenant to their respective parcels.

¶ 5. The court found its interpretation bolstered by the rule of construction that an easement appurtenant is favored over a personal easement. It explained that the right-of-way must be considered an appurtenance of the parcel for which it provided ingress and egress. As additional support, the court pointed to an 1883 deed from Eastman to Nutting, which described a parcel being conveyed as "bounded north by land of Rufus Brown, east by the lane running north to said Brown's land." The court thus concluded that the right-of-way had been created by the deed, it attached to the dominant parcel, and it had been transferred through defendants' chain-of-title.

¶ 6. The court turned next to plaintiffs' claim that their predecessor-in-title, an individual named Bortz, had extinguished the right-of-way. The court explained that to divest the holder of a dominant estate of his interest in an easement, the holder of the servient estate needed to make clear its intention to work an ouster; it must be hostile, and it must consist of a clear and affirmative blocking of the right-of-way. In conducting its analysis, the court viewed the conduct objectively.

¶ 7. The court found that defendants' predecessor-in-title, an individual named Higgins, had asserted his right to use the right-of-way, and he had expressed this view to Bortz. Bortz did not believe that the right-of-way existed. At some point, Bortz installed a driveway that proceeded northerly down the right-of-way at issue and then curved westward toward Bortz's house. In the process, Bortz graded the land in dispute. The court explained that many years before Bortz's construction of the driveway, crude stone walls had been erected along either side of the lane. During construction, Bortz's excavator broke through the westerly stone wall at the curve of the path of the driveway. Some of the stones were placed along the outside of the driveway curve. The court found that the stones might have had the effect of tending to block use of the right-of-way or constitute an act hostile to passage along it. On a subjective level, however, the court found no evidence that Bortz directed his excavator to so place the stones, nor any evidence that the excavator knew of the potential dispute between Bortz and Higgins regarding the right-of-way. The court found that, more significantly, the stones did not remain in that position for very long. They interfered with snow removal, and with Bortz's permission the stones were pushed over the edge of the driveway, and down into the gully that marked the continuation of the disputed lane.

¶ 8. The court explained that Bortz's creation of a driveway had resulted in a berm that impeded travel along the lane if one were coming from defendants' land to the north. The berm created a drop of perhaps three feet if one were coming from Palmer Lane. The court stated that, although the driveway and berm might constitute something of an impediment to ordinary auto travel, a vehicle with four-wheel drive could still access the route. The court noted that defendant Rowe had driven his Jeep up the driveway and onto the lane. The driveway had remained in place for well over fifteen years, perhaps more than thirty. The court found that the visual effect of the driveway and berm was precisely that—a level driveway and sloping base necessary to create the driveway from material found on the site. An objective observer would not view it as Bortz deliberately blocking access along the lane. The court concluded that the driveway construction should be considered for what it was—a driveway with a berm of earth necessary to support it. It explained that, although the berm might somewhat impede travel along the disputed lane, it was "nothing that a few yards of fill could not remedy." Its purpose was simply to create a driveway rather than to block the dominant estate. The court found that construction of the driveway would not have put Higgins on notice that Bortz was trying to oust him from his easement. The court therefore found that plaintiffs had not established ouster.

¶ 9. Finally, the court rejected plaintiffs' assertion that the lane could not be used for automobile travel. It concluded that because there had been no limitation on the grantee's use of the right-of-way in the 1881 deed, none should be imported. In reaching its conclusion, the court recognized that over time the possible use of the right-of-way had evolved from animal traffic to automobile use. Plaintiffs filed a motion for reconsideration, which was denied, and this appeal followed.

¶ 10. Plaintiffs first argue that the court erred in interpreting the terms of the 1881 deed. They assert that the deed did not create an appurtenant right-of-way because the grant did not include words of inheritance. Plaintiffs maintain that the court erred in looking at the habendum clause when the granting language was clear. Plaintiffs further assert that the word "appurtenances" does not mean what the court found it to mean, and that the court erred in giving the word independent legal significance and effect. Even assuming that the term could be so interpreted, plaintiffs argue, the habendum would be inconsistent with the terms of the grant and therefore invalid. According to plaintiffs, the context of the full deed evinces the parties' intent to convey an easement for the exclusive benefit of grantee Brown. Plaintiffs find support for their position in the deed's imposition of a personal obligation on Brown to "put up all bars in the lane passing to and from the land hereby conveyed."

¶ 11. We reject these arguments. Our goal in interpreting a deed is to implement the intent of the parties. Kipp, 169 Vt. at 105, 732 A.2d at 129; see also Barrett v. Kunz, 158 Vt. 15, 18, 604 A.2d 1278, 1280 (1992) ("The character of an easement depends on the intent of the parties, as drawn from the language of the deed, the circumstances existing at the time of execution, and the object and purpose to be accomplished by the easement."). We look first to the language of the written instrument because we presume that it declares the parties' intent. Kipp, 169 Vt. at 105, 732 A.2d at 129. The parties' intent, "when ascertainable from the entire instrument, prevails over technical terms or their...