Schonbek v. Chase

• Decision Date: 09 November 2010
• Docket Number: No. 09–292.,09–292.
• Citation: 2010 VT 91,14 A.3d 948
• Court: Vermont Supreme Court
• Parties: Andrew SCHONBEK, Trustee of the Isaiah 61 Foundationv.David CHASE and Brianne Chase.

14 A.3d 948
2010 VT 91

Andrew SCHONBEK, Trustee of the Isaiah 61 Foundation
v.
David CHASE and Brianne Chase.

No. 09–292.

Supreme Court of Vermont.

Oct. 8, 2010.Motion for Reargument Denied Nov. 9, 2010.

[14 A.3d 949]

Steven J. Kantor of Doremus, Roesler and Kantor, Burlington, for Plaintiff–Appellee.Gary L. Franklin of Primmer Piper Eggleston & Cramer PC, Burlington, for Defendants–Appellants.Present: REIBER, C.J., DOOLEY, JOHNSON, SKOGLUND and BURGESS, JJ.REIBER, C.J.

¶ 1. Defendants David and Brianne Chase appeal from a Chittenden Superior Court decision holding that: (1) plaintiff Andrew Schonbek, trustee of the Isaiah 61 Foundation, possessed a twelve-foot-wide prescriptive easement for vehicular and pedestrian ingress and egress across defendants' property; (2) defendants must immediately remove a fence from their property to allow plaintiff to make use of the easement; and (3) defendants must pay plaintiff over $80,000 in costs associated with plaintiff's construction and proposed destruction of an interior fire corridor—costs which, according to the trial court, would have been avoided if defendants had recognized the existence of plaintiff's easement.¹ We reverse.

¶ 2. The record reveals the following facts; additional facts will be set forth where they are relevant to our analysis. Plaintiff has been trustee of the lands and building at 150 Cherry Street in Burlington since 2003. Plaintiff uses the building as a restaurant and “public place of accommodation.” For many years before, it was owned by the Knights of Columbus and used in their activities. Defendants own two nearby properties. One to the east, two doors down, is located at 158 Cherry Street. The 158 Cherry Street property is currently a drug store with a paved parking lot. Another, the Eastman building, not directly the subject of this dispute, abuts plaintiff's and defendants' property to the north. The Eastman property fronts on Pearl Street. Both the Eastman and 158 Cherry Street buildings have been in defendants' family for over a century.

¶ 3. Plaintiff's property extends just beyond the rear of its building. The back door of plaintiff's building opens into the intersection of two alleys: one running

[14 A.3d 950]

parallel to the line of the back wall of plaintiff's building, heading west toward Church Street and east toward South Winooski Avenue, and another running perpendicular to that line, heading north to Pearl Street along the side of the Eastman building. This case is about the use of those alleys to and from plaintiff's back door.

¶ 4. Plaintiff's back door is on the northeast side of the Cherry Street building. Upon exiting this door, one enters the intersection of the two alleys. The layout appears as follows: along the alley to the southwest, on the left-hand side of the door, is a fenced-in parking area; north of that parking area lies the other Eastman Building; to the east, on the right-hand side of the door, is a fence, built by defendants in 1999, that runs along defendants' property line and blocks access to South Winooski Avenue; past the narrow corridor between defendants' fence and plaintiff's building to the north, another alley leads to Pearl Street. To reach Pearl Street from plaintiff's back door requires crossing over the Eastman property and defendants' property at 158 Cherry Street. As the situation currently stands, defendants' property-line fence restricts movement through this alley to Pearl Street by creating a corridor that is only twenty-nine inches wide in places.

¶ 5. To conform to fire safety codes, plaintiff's building must have two means of egress that meet a minimum width. When purchasing the building, plaintiff was told that one emergency access route was out the back door and straight ahead through the narrow corridor to Pearl Street. Plaintiff later learned that he could not use the back door as a fire escape because fire safety codes required that an escape corridor be at least fifty inches wide. When plaintiff learned that he was not in compliance with fire safety codes, he approached defendants to discuss moving the fence or adding a gate to it; the fence would need to move only around twenty-one inches to create the fifty-inch corridor that plaintiff would need to meet fire safety codes and provide access to Pearl Street. Defendants offered to move the fence in exchange for entry into a revocable license agreement which required a monthly monetary payment. Plaintiff refused defendants' offer and instead built an internal egress corridor that allowed the building to meet fire safety codes. Plaintiff then filed this lawsuit in 2005, alleging the existence of a prescriptive easement over defendants' property, as well as damages—later calculated to be over $80,000—for the cost of building the internal egress corridor and taking it down if the prescriptive easement were recognized.

¶ 6. The case went to trial in November 2007. After two days of trial, both parties rested. The court, however, was not satisfied that it had enough information to decide the case. As a result, the court, over defendants' objections, reopened the record to allow plaintiff to introduce additional evidence on the historical uses of the alleyway. Plaintiff introduced such evidence during the third day of trial on October 24, 2008. Based on the evidence introduced during the third day of trial, the court awarded plaintiff a twelve-foot-wide prescriptive easement for general ingress and egress (vehicular and pedestrian) across defendants' property, as well as all of the over $80,000 in costs requested by plaintiff. The court also ordered defendants to “take down and remove the wire mesh fence and associated fence posts on their land” wherever the fence interfered with plaintiff's prescriptive easement.

¶ 7. Defendants raise three issues on appeal: (1) whether the trial court had authority to grant a twelve-foot-wide easement heading east when plaintiff's complaint

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