Sweezey v. Neel

• Citation: 904 A.2d 1050,2006 VT 38
• Decision Date: 05 May 2006
• Docket Number: No. 2004-225.,2004-225.
• Parties: J. Kent SWEEZEY v. Hartley NEEL, Virginia Neel and Morristown Landowner's Association.
• Court: United States State Supreme Court of Vermont

Page 1050

904 A.2d 1050

2006 VT 38

J. Kent SWEEZEY v. Hartley NEEL, Virginia Neel and Morristown Landowner's Association.

No. 2004-225.

Supreme Court of Vermont.

May 5, 2006.

Alan W. Cheever, J.

Robert F. O'Neill and Heather Rider Hammond of Gravel and Shea, Burlington, for Plaintiff-Appellee/Cross-Appellant.

Christopher D. Roy of Downs Rachlin Martin PLLC, Burlington, for Defendants-Appellants/Cross-Appellees.

Present: REIBER, C.J., JOHNSON, SKOGLUND and BURGESS, JJ., and GIBSON, J. (Ret.), Specially Assigned.

REIBER, C.J.

¶ 1. This case concerns a longstanding dispute over plaintiff J. Kent Sweezey's encroachment upon a deeded easement traversing his property. Ultimately, the superior court allowed plaintiff to bend the easement around a new addition to his house and prohibited the easement's owner from using the right-of-way as an avenue for future development of the dominant estate. The easement's owner, a landowner's association comprised of two couples, appeals several aspects of the superior court's decision. Plaintiff cross-appeals, asking this Court to allow servient landowners to obtain court approval to unilaterally relocate easements in a manner that does not unduly burden the dominant estate. We conclude that the superior court acted prematurely in prohibiting use of the easement as an avenue for any future development on defendants' adjoining property, but the court did not err in allowing plaintiff to bend the easement around his addition. We decline, however, plaintiff's request that we abandon the general rule that easements cannot be relocated without the consent of both the servient and dominant landowners.

¶ 2. For the most part, the facts and procedural history of this case are undisputed. In 1965, William and Marian Bernhard transferred to themselves and another couple a portion of a large parcel of land that they had purchased in the 1950s. In consideration of the transfer, the other couple agreed to construct an eight-acre pond and boathouse on the property. Earthmoving and other equipment used to construct the pond and boathouse accessed the conveyed property by way of a shallow portion of a nearby stream. Out of concerns for potential liability, ownership of the property was placed in the couples' corporation, Kimibakw, Inc. As part of the conveyance, the Bernhards deeded to the corporation a fifty-foot-wide easement over their retained parcel to allow access to the conveyed property. The easement starts as a single path and then diverges into an upper and lower fork, forming a "Y" into the dominant estate.¹ The deed conveying the easement does not describe the right-of-way by metes and bounds.

¶ 3. In July 1978, Kimibakw sold the property to defendant Morristown Landowner's Association, which was comprised of Virginia and Hartley Neel and four other couples. Thereafter, the Association's members and guests used the deeded easement for vehicular and other access to and from the Association property. In 1988, the Bernhards built a home on their retained parcel, the servient estate. In doing so, the Bernhards upgraded as a driveway the first 1100 feet of an access road that was later ruled to be part of the disputed easement. The Neels initially challenged the location of utility poles placed near the Bernhards' home, but eventually dropped that challenge after conferring with Mrs. Bernhard.

¶ 4. In 1997, Mrs. Bernhard sold the servient estate to plaintiff J. Kent Sweezey. At this point, the Neels and another couple, the Redlichs, were the only remaining members of the Association. In advance of the closing, plaintiff had a survey of the property done. The survey, which was recorded in the town land records, was consistent with a 1977 unrecorded survey with respect to the location of the easement. In 1998 and 1999, plaintiff worked on the upper fork of the easement in the hopes of converting it into a ski trail. At the same time, he began constructing an alternative road that would replace the deeded easement. In August 1999, plaintiff met with Mr. Neel to discuss the possibility of the Association members using the alternative road for ingress and egress to the Association's property. Plaintiff explained that he was anticipating building an addition to his house and wanted to reduce the traffic on the access road running near the house. Mr. Neel indicated that he would consider using the proposed alternate route.

¶ 5. In November 1999, plaintiff began work on his planned addition. Shortly thereafter, Mr. Neel telephoned him to complain about the addition. After telephoning his contractor, plaintiff learned that no building permit had been obtained. Plaintiff halted the construction and applied for a permit. In December 1999, Mrs. Neel and the Association's attorney attended a hearing before the town development review board, arguing that the permit should not be issued because the proposed addition would encroach upon the Association's easement. The board responded that it lacked jurisdiction to establish the location of the easement, but encouraged the parties to work out a solution to the problem. In response, plaintiff, his attorney, Mrs. Neel, and the Association's attorney met in private before returning to the meeting to announce that they had reached an agreement. The details of the agreement are in dispute, but, at minimum, they agreed that the Neels would have an engineer inspect the alternative road in the spring to determine whether it was a suitable substitute for the deeded easement. The board eventually issued the building permit, and, in the ensuing months, plaintiff completed construction of his addition, which came within ten feet of the fifty-foot easement's centerline.

¶ 6. In late April 2000, plaintiff's attorney sent the Association's attorney a letter inquiring about a schedule for having an engineer inspect the alternative road. The following month, the Association's attorney responded by stating that the Neels were reluctant to hire an engineer unless the parties could agree that the proposed right-of-way was for "unlimited access" to the dominant estate. Plaintiff's attorney then accused defendants of trying to impose new conditions on their agreement to use the alternative road as long as it proved to be a suitable substitute for the deeded easement. Plaintiff threatened legal action if an agreement could not be reached within ten days.

¶ 7. In June 2000, plaintiff filed suit and obtained an ex parte temporary restraining order preventing the Association from using the deeded easement. Thereafter, the parties agreed to an interim order allowing the Association to use the alternative road and upper and lower forks of the easement but prohibiting vehicular traffic on the upper fork pending resolution of their cross-motions for a preliminary injunction. In June 2001, in response to cross-motions for summary judgment on certain issues, the superior court ruled that the scope of defendants' permissible use of the easement "includes pedestrians and vehicles of the kind ordinarily permitted on unpaved public roads in Vermont such as may be reasonably necessary to access the dominant estate." In its October 2001 ruling on the parties' cross-motions for a preliminary injunction, the court denied plaintiff's requests for injunctive relief and granted defendants' request for a preliminary injunction based on its conclusions that the location of the deeded easement was clearly marked and plaintiff had encroached upon the easement without obtaining defendants' consent.

¶ 8. In the fall of 2003, following a four-day bench trial before a different judge, the superior court issued a final decision upholding the court's earlier rulings with respect to the location of the easement and denying, for the most part, plaintiff's requests for injunctive relief. Nevertheless the court allowed plaintiff to keep his addition intact by constructing a bend in the easement away from his house up to a distance of fifty feet. The court also determined that the scope of the deeded easement did not include its use as an avenue for future development of the Association's property.

¶ 9. Defendants appeal the superior court's decision, arguing, among other things, that the trial court erred by relocating the course of the deeded easement and by restricting the scope of the use of the easement with respect to future development. Plaintiff cross-appeals, asking this Court to adopt the position that the owner of a servient estate can, with court approval, unilaterally relocate a deeded easement not set forth in metes and bounds, as long as the relocated easement does not frustrate the use and enjoyment of the dominant estate.

I.

¶ 10. We first consider defendants' argument that the superior court erred by allowing plaintiff to bend the easement up to fifty feet from his house rather than requiring him to remove his encroaching structure. In support of this argument, defendants rely upon two general principles of property law. The first "is that the owners of both the dominant and servient estates must consent to relocate an easement." In re Shantee Point, Inc., 174 Vt. 248, 261, 811 A.2d 1243, 1254 (2002); see Sargent v. Gagne, 121 Vt. 1, 12, 147 A.2d 892, 900 (1958) ("It is the general rule that a way, once located, cannot be changed thereafter without the mutual consent of the owners of the dominant and servient estates."). This rule is tempered, however, by the accepted notion that mutual consent to a relocation "may be implied from the acts and acquiescence of the parties." Sargent, 121 Vt. at 12, 147 A.2d at 900. If the actions of the dominant estate's owner indicate acquiescence to an easement's changed location, the dominant estate is equitably estopped from claiming an entitlement to the former location. Wagoner v. Jack's Creek Coal Corp., 199 Va. 741, 101 S.E.2d 627, 630 (1958); cf. Mann v. Levin, 2004 VT 100, ¶¶ 25-28, 177 Vt. 261, 861 A.2d 1138 (determining...