Russell v. Pare

• Decision Date: 08 May 1974
• Docket Number: No. 47-72,47-72
• Citation: 321 A.2d 77,132 Vt. 397
• Parties: , 72 A.L.R.3d 637 Frances H. RUSSELL and James I. Russell v. Claude PARE and Peter Rodin.
• Court: Vermont Supreme Court

Page 77

321 A.2d 77

132 Vt. 397, 72 A.L.R.3d 637

Frances H. RUSSELL and James I. Russell v. Claude PARE and Peter Rodin.

No. 47-72.

Supreme Court of Vermont.

May 8, 1974.

Motion for Reargument Denied June 12, 1974.

Rexford, Kilmartin & Chimileski, Newport, for plaintiffs.

Raymond A. Peterson, Newport, and Lee E. Emerson, Barton, for defendants.

Before SHANGRAW, C. J., and BARNEY, SMITH, KEYSER and DALEY, JJ.

DALEY, Justice.

The plaintiffs are the owners of Seymour Lodge located on the northerly side of Route 111 in the Town of Morgan. The defendants are in the process of erecting a building upon a triangular strip of land on the sougherly side of Route 111 be tween the highway and the waters of Lake Seymour. The building is directly across the road and in front of the Lodge.

By a bill of complaint brought to the then Orleans County Court in Chancery, the plaintiffs claimed to have acquired a right of user over the land upon which the building is being erected, and that the actions of the defendants constitute an interference with their rights of user. They prayed for the issuance of a temporary and permanent injunction to restrain the defendants from further interference with their claimed rights and for the restitution of the land to the condition it was in prior to the acts of the defendants. The defendants claim title by deed of conveyance.

The disputed parcel is described in the plaintiffs' bill of complaint as follows:

Bounded southerly by the northerly shore of Seymour Lake, bounded westerly by the public beach evidenced by a line extending from the low water mark of Lake Seymour, northerly to a culvert in the public highway, bounded easterly by the defendants' premises evidenced by a line which follows the course of the plaintiffs' easterly boundary line extended and elongated southerly to the water's edge and bounded northerly by said public highway.

After lengthy hearings before the chancellor, he concluded that, although legal title to the above-described parcel was in the defendants,

the plaintiffs and their predecessors in title to Seymour Lodge have used the disputed parcel openly, notoriously, continuously, and adversely to the rights of the defendants and their predecessors in title for the purposes of fishing, docking and launching boats, swimming, and picnicking, and have thereby acquired a prescriptive easement over and on the disputed parcel for these purposes.

The chancellor also concluded that the building of the defendants had been erected in such a way as to effectively destroy the prescriptive easement acquired. The judgment order required the removal of that part of the building located on the disputed parcel which prevents the plaintiffs from the exercise of the stated prescriptive rights.

The defendants appeal, contending that certain findings of fact are not supported by the evidence, that the judgment is not supported by the facts found, that the chancellor erred in the exclusion and reception of certain evidence, that the chancellor erred in his conclusions of law, and that the judgment order is so vague, indefinite, and uncertain as to be incapable of compliance.

The term 'prescription' is usually applied to acquisition of easements or other non-fee interests. The term 'adverse possession' is usually applied to acquisition of fee interests. This distinction is not always clear, but it is settled that the rules of law applicable to the two are in harmony. Abatiell v. Morse, 115 Vt. 254, 258, 56 A.2d 464 (1947); D'Orazio v. Pashby, 102 Vt. 480, 485, 150 A. 70 (1930); Barber v. Bailey, 86 Vt. 219, 223, 84 A. 608 (1912).

The basic requirement for either is that the adverse use or possession must be open, notorious, continuous for 15 years, and hostile. The person against whom the claim is asserted must acquiesce in the use or possession by the claimant. Laird Properties v. Mad River Corp., 131 Vt. 268, 277, 305 A.2d 562 (1973); Higgins v. Ringwig, 128 Vt. 534, 538, 267 A.2d 654 (1970); 12 V.S.A. § 501.

The doctrine derives from two separate but related theories. The first theory is the old doctrine of presumptions. It in perfinent part provides that use, accompanied by claim of right for the 15-year period, creates a presumption that a grant of the right was made. Mitchell v. Walker, 2 Aik. 266, 269 (Vt.1827); Shumway v. Simons, 1 Vt. 53, 57 (1827); Tracy v. Atherton, 36 Vt. 503, 514-515 (1864). The second theory is analogous to the statute of limitations. We view the applicable statute of limitations as a part of the doctrine. See 12 V.S.A. § 501, referred to in Higgins v. Ringwig, supra, 128 Vt. at 538, 267 A.2d 654. Long and uninterrupted possessions should be supported. Tracy v. Atherton, supra, 36 Vt. at 514-515. The passage of time should foreclose litigation. Shumway v. Simons, supra, 1 Vt. at 57.

The plaintiffs must come forward with evidence to show the elements of adverse or prescriptive use. Higgins v. Ringwig, supra, 128 Vt. at 538. Their claim is not defeated simply because the defendants produce evidence which could support a contrary inference. It is for the court below, as fact finder, to weigh the evidence. We must affirm the facts found if they are fairly and reasonably supported by credible evidence, Laird Properties v. Mad River Corp., supra, 131 Vt. at 278, 305 A.2d 562, and are not 'clearly erroneous', V.R.C.P. 52; Wells v. Village of Orleans, 132 Vt. 111, 315 A.2d 463, 466 (1974); Seaway Shopping Center Corp. v. Grand Union Stores Inc., 132 Vt. 111, 315 A.2d 483, 486-487 (1974).

The record before us presents the following facts. Seymour Lodge is a building consisting of eleven rooms, eight of which are rented to summer guests, the other three rooms being the home of the owners. The front of the Lodge faces Lake Seymour to the south and is separated from the lakeshore by Route 111. The disputed parcel lies directly opposite the Lodge between Route 111 and the lackeshore.

From 1921 to 1931, Edna and the late George Hopkins owned the Seymour Lodge. Mrs. Hopkins testified at the hearing before the chancellor that she and her husband began a 'fisherman's lodge' business in 1921. She testified that in their business they used the whole of the disputed parcel for beaching up to 25 boats and that the guests of their Lodge went picnicking on and cast their lines out to fish from the disputed parcel. This testimony was corroborated by Oliver Charland and George Heslin, long time residents of the Lake Seymour area.

In 1925, Alex Lafoe purchased land on the southerly side of Route 111. Until 1960, he operated a filling station, small store, boat rental business, and several small cabins which he rented during the fishing and tourist season. His business operation was located on land east of the disputed parcel. His living quarters were in the rear of the store.

Edna Hopkins testified, and the chancellor so found, that at one time Mr. Lafoe claimed the disputed parcel was under his deed. He attempted to prevent Mr. and Mrs. Hopkins from using the disputed parcel as they had since 1921 for the benefit of themselves and their guests. They at all times resisted any attempt by Lafoe to prevent them from using the disputed parcel. At one time Mr. Lafoe erected a small fence across the disputed parcel, which was promptly torn down by Mr. Hopkins. Subsequently, Mr. Lafoe sought legal advice relative to his claim of ownership of the disputed parcel. However, he made no further attempt to prevent the Hopkins or their guests from using the disputed parcel.

In 1931, Mr. and Mrs. Hopkins sold the Seymour Lodge to persons named Shaw, who continued in ownership of the Lodge until 1939. Both witnesses Heslin and Charland testified that the Shaws continued the Lodge business as it had been run by the Hopkins, maintaining the 'fishing lodge', taking in boarders, and most importantly, for purposes of this opinion, continuing the same uses of the disputed parcel as those of the Hopkins.

During the hearing, testimony was given by Kenneth Green, a patron of Alex Lafoe's fishing operation from 1929 to the late 1950's. He testified that the Seymour Lodge boats were always launched on the disputed parcel and that Mr. Lafoe told his guests to keep their boats over on his land and not to park on the other place because that was all the Seymout Lodge place. Mr. Green also testified that the help from Seymour Lodge mowed the lawn on the disputed parcel, and to the existence of a no trespassing sign with the Seymour Lodge name on the disputed parcel.

This fact situation is similar to that in Montgomery v. Branon, 127 Vt. 83, 238 A.2d 650 (1968), in that the use by the owners of Seymour Lodge can be inferred from the location of the Lodge and the purpose for which it was maintained. Id. 127 Vt. at 88, 238 A.2d 650.

The record, by the testimony of the witnesses, clearly supports the determination of the chancellor that the use of the disputed parcel by the owners of Seymour Lodge was open and notorious. Chief Justice Redfield observed in Arbuckle v. Ward, 29 Vt. 43, 53 (1856), that:

(T)he mere use, if so open and notorious as obviously to attract the notice of the owner of the soil, or if expressly shown to have come to his knowledge. will prima facie establish the right, and it will be incumbent upon the owner to show in some mode that it was not used under a claim of right . . ., or that he did not understand it, and was not bound to so regard it from the nature and extent of the use.

Open and notorious use, without countervailing evidence of permission, gives rise to a presumption of claim of right. Higgins v. Rigwig, supra, 128 Vt. at 538-539, 267 A.2d 654. It is not necessary for a prescriptive claimant to voice his claim if his use is such as to indicate that a prescriptive claim is being asserted. Waterman v. Moody, 92 Vt. 218, 238-239, 103 A. 325 (1918); Barber v. Bailey, supra, 86 Vt. at 223, 84 A. 608.

In this case the open and notorious use of the...