Tillotson v. Town of Bakersfield, 021517 VTSUP, 472-10-13 Frcv
| Opinion Judge | MICHAEL J. HARRIS, SUPERIOR COURT JUDGE |
| Party Name | Lee Tillotson, Susan Tillotson, Plaintiffs v. Town of Bakersfield, Samuel Ruggiano, Kimberly Ruggiano, Terri Gates, Lindsay Gates, Defendants |
| Case Date | February 15, 2017 |
| Court | Superior Court of Vermont |
OPINION AND ORDER ON PENDING MOTIONS FOR SUMMARY JUDGMENT (MOTIONS 5 &6)
MICHAEL J. HARRIS, SUPERIOR COURT JUDGE
This civil matter involves a dispute over the status of a road or private drive located in Bakersfield, Vermont.
The Plaintiffs, Lee and Susan Tillotson ("Plaintiffs" or the "Tillotsons"), own a residence, along Vermont Route 108 in Bakersfield, Vermont. A dispute has arisen between the Tillotsons, and their neighbors, Defendants Terri Gates and Lindsey Gates (collectively "the Gates Defendants") and the Town of Bakersfield, Vermont (the "Town"). The dispute involves whether the roadway that passes over the Tillotsons' property was formerly a town road, later converted to a public trail, or if it is a solely private road over which the Gates defendants may have prescriptive easement rights only. The Gates Defendants and the Town take the position that the roadway segment was a town road and later converted to a public trail. The Tillotsons contest that position.
The Tillotsons sued the Gates Defendants and the Town for a declaratory judgment action. The Tillotsons and the Gates Defendants filed competing motions for summary judgment pending before the court. The Town is one of the non-moving parties as to the motion for summary judgment filed by the Tillotsons, but has not filed any opposition memoranda in response.
The court has considered the motions and materials submitted in support of the motions and makes the following findings of fact (for summary judgment purposes) and conclusions of law: 1. The subject road, drive or trail, which the Gates Defendants identify as "Kimberly Hill Farm Road", starts on the west side of Vermont Route 108 in Bakersfield, near a Methodist Church. It runs approximately 0.2 miles through land presently owned by Plaintiffs, then through lands presently owned by Terri Gates, and then on to lands owned by Lindsey Gates.
2. The court refers to this road, drive or trail as the "Shared Roadway" below for purposes of identification. The Shared Roadway's physical composition (that is, the extent to which it is "improved" and its physical appearance) and/or the extent to which it has been used by persons owning land along its course, or by Town residents, are at issue. The court's choice of the "Shared Roadway" nomenclature in referring to the road, drive, or trail is made as a matter of convenience for this opinion.
3. Lee and Susan Tillotson purchased their home on September 25, 1969. It was previously owned from 1932-42 by Lee Tillotson's great-grandparents, Elmer and Ila Taylor. They transferred it to Lee Tillotson's grandparents, Sylvia and Harry Lee Tillotson, in 1942. Harry Lee Tillotson died, and Sylvia Tillotson owned the property until sometime in 1969, when she conveyed it to two married couples, namely Ira and Celona Elwood, and Chester Talcott and Evelynn Talcott. The Ellwoods and Talcotts conveyed the property to the Tillotsons on September 25, 1970.
4. The Gates Defendants' parcels were previously owned by Earl and Hyla Gates. They acquired the lot in 1942, when it had no residence on the lot. The parcel served as a wood lot. During their ownership of the lot., Earl and Hyla Gates let Edward Robtoy build a shack on a portion of their property.
5. The Shared Roadway crossed the Tillotson parcel and passes onto the Gates property.
6. According to affidavits submitted by various persons, the Tillotsons and the Gates, and Mr. Robtoy, passed over the Shared Roadway getting to and from their properties.
7. There was disputed testimony over whether, or to what extent, the Town maintained the Shared Roadway.
8. Samuel Gates, a relative of the Gates Defendants, lived near the Tillotson home/ Shared Roadway in 1942 to 1955, when he was 5 to 18 years old. He recalls the Town plowing the Subject Road after every significant snow storm in front of the Tillotson home. He recalls seeing a bulldozer with a snowplow on the front being used some times. He recalls the town plow truck plowing up to the Tillotson house, and then backing out, leaving a snowbank that he used to shovel out to help get to the Gates property (that then had no residence on it), to give access to the Gates woodlot.
9. Samuel Gates also recalls town workers working on the stone culvert on the Shared Roadway one time, near where it passes onto the Gates' land.
10. In contrast, Lee Tillotson's aunts, Frieda Perry and Marjorie Rich, lived in the Tillotsons' home along the Shared Roadway from 1938-58 and again from 1959 to 1961 (Ms. Perry) and from 1938- 1948 (Ms. Rich). Both of these women contest that the Town plowed or upkept the Subject Roadway. They both state that their father, Harry Lee (Chubb) Tillotson, who served as the Town Road commissioner from 1948 to 1952, used his personal plow truck to both plow town roads and to plow his own property, such as the Subject Roadway.
11. Lee Tillotson, who lived in Town from his birth in 1948 to 1969, spent considerable time at his then grandparents' house. During those years (starting with his early memories) the only persons he saw using the Subject Road were the Tillotson family (to access the Tillotson home), Edward Robtoy (to access his shack, by foot or bike) and Earl Gates (to access his wood lot).
12. After the Tillotsons purchased the Tillotson home, in 1970, Plaintiff Lee Tillotson saw the same usage pattern for the Shared Roadway. Once the Gates mobile home was placed on the site in 1985, there was usage of the Shared Roadway by the Gates or their guests to access the mobile home. For a time (1990's to 2012), Samuel and Kimberly Ruggiano made use of the road/ drive, as described below.
13. In addition another Tillotson relative, Norris Tillotson, who lived a little north of the Tillotson home, on Route 108, from 1935 to 1954, and who frequented the TIllotson home, states he never saw the Shared Roadway plowed or maintained by the Town.
14. No party has found any town records showing that the Shared Roadway was laid out by the Town as a town road.
15. The Town records (town reports) for the years 1890, 1906, 1922, 1934, 1945-48, 1950-53 and 1955 - years encompassing the childhood/teen years of the affiants concerning presence or absence of Town maintenance for the Shared Roadway - facially list no sums identified as being expended on the Shared Roadway during those years. It appears earlier records of town road expenditures are missing (assuming the Town in fact previously kept such records).
16. In 1970, the Town sought to discontinue certain roads in Town. On 10/6/70 the Town sent notices of a 10/23/70 hearing to property owners owning land near the affected roads.
17. The noticed hearing was generally about a hearing to discontinue certain town roads or highways and to designate them as town trails. The 10/6/70 Notice had two sections. The unnumbered first part provided notice of plans to discontinue as roads, and designate as trails, eighteen numbered Town Roads, identified by town road number and location.
18. Part II of the Notice extended to "[s]uch highways or supposed highways" to be discontinued, and included reference to the Shared Roadway as a "Unnumbered Supposed Road".
19. The Town held a hearing in October, 1970. The Town Select board issued a town report, on 10/29/70, concerning certain town roads.
20.The Town's 10/29/70 report in pertinent part stated "An Unnumbered Supposed Road, extending westerly from Route 108 at a point approximately opposite from the Methodist Church, by the Tillotson Place, so-called, to the end of the road, is hereby discontinued as a Town Highway and designated as a Trail".
21. The Town mailed copies of its 1970 order to certain landowners owning land near the roadways described in the order. Although the Tillotsons purchased their property shortly before (9/25/70) the Town proceedings were noticed (10/6/70), the hearing held (10/23/70), and the town report mailed (10/29/70) - the Town did not mail the Tillotsons a copy of the 1970 notice of hearing or order.
22. Following the 1970 town action, the Town depicted the subject road as a "LT 48" on its 1976 map. The town map designation "LT" refers to legal trails on the map legend.
23. Mr. Tillotson served as a selectman for the Town from in or around 1975 to 1979. Ms. Tillotson served on the Town Planning Commission. They each at some point learned of the Town's designation of the Shared Roadway as a public trail, but did not agree with such designation.
24. The Gates Defendants' physical occupancy of their lot began in 1983, when Lindsey Gates and Earl and Hyla Gates applied for a town permit to site a mobile home along the Shared Roadway, to the north of the roadway/drive.
25. In 1985 a Lindsey Gates renewed or obtain a permit to place a mobile home on the site, which was done soon thereafter. Around the time of this permit, Hyla and Earl Gates deeded the property to Lindsey Gates.
26. Both Gates permits had a sketch that depicted the Shared Roadway as a "Legal Trail" passing onto the Gates land where the mobile home was to be placed.
27. Prior to the Gates mobile home being placed on the Gates property in 1985, it does not appear that automobiles were used on the portions of the Subject Roadway that extended beyond the Tillotson home. Mr. Robtoy had a shack on the Gates property, that he accessed by foot or bike. There had been horse drawn wagon access to the Gates' wood lot. There were no structures beyond the Tillotson home, being regularly...
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