Town of Bethel v. Wellford

• Citation: 987 A.2d 956,2009 VT 100
• Decision Date: 30 September 2009
• Docket Number: No. 08-399.,08-399.
• Parties: TOWN OF BETHEL v. Daniel WELLFORD and Paula Wellford.
• Court: Vermont Supreme Court

987 A.2d 956

2009 VT 100

TOWN OF BETHEL v. Daniel WELLFORD and Paula Wellford.

No. 08-399.

Supreme Court of Vermont.

September 30, 2009.

Present: REIBER, C.J., JOHNSON, SKOGLUND, BURGESS, JJ., and PEARSON, Superior Judge, Specially Assigned.

ENTRY ORDER

¶ 1. Landowner appeals from a decision by the Windsor Superior Court holding that a portion of Town Highway # 34/Dunham Road traverses landowner's property, creating a right-of-way held by the Town of Bethel. Landowner contends that the trial court erred in concluding that the Town had met its burden of proving the course of Town Highway # 34/Dunham Road. We affirm.

¶ 2. Landowner owns multiple parcels of land in the Town of Bethel at the northern end of Town Highway # 34/Dunham Road. The present controversy over the course of Town Highway # 34/Dunham Road arose when the Town began examining the sufficiency of "turn around" locations for town plow trucks on the stretch of this road that the Town contends runs through the northeast portion of landowner's property. In its complaint, the Town alleged that landowner had interfered with the Town's right to maintain this segment of Town Highway # 34/Dunham Road as a town highway open to the public. There is presently little physical evidence of this "ancient road" as it traverses through landowner's property; however, the Town asserted that a town road known as the "old town road from Camp Brook to Gilead" has been in existence from 1806 to the present, is approximately 1.89 miles long, and originates south of landowner's property and travels in a north/south direction over landowner's property terminating at a point north of landowner's property. The Town sought a declaratory judgment regarding the existence of the road as a public highway. Landowner counterclaimed, alleging that the public highway was not properly created; that even if such a road was created, it was abandoned and the Town is estopped from claiming rights to the road; and that because it is impossible to determine the exact location of the road, any attempt to reactivate the road should be treated as an alteration of a town highway.

¶ 3. In granting the Town's motion for declaratory judgment, the trial court made the following findings of fact: (1) the Town's introduction of surveyor Swanson's testimony that the beginning of Town Highway # 34/Dunham Road was situated on land formerly owned by Roswell Mills and located south of landowner's property was "credible" and "established as fact"; (2) the credible evidence established that based on an 1806 land survey Town Highway # 34/Dunham Road ended at the home formerly owned by Daniel Peak and presently owned by Yankee Forest, LLC; (3) there was no genuine issue as to whether a portion of Town Highway # 34/Dunham Road passes onto landowner's property, and this undisputed portion of the road establishes "at the least a part of the course and distance of the original town highway"; (4) based on surveyor Swanson's credible testimony, a "Woods Road" running north from landowner's residence serves as a monument for the course of Town Highway # 34/Dunham Road; (5) credible evidence established that the absence of stone walls that may have served as monuments to the location of the course of the road "is fully consistent with the character of the soils, topography and historic use of the lands"; and (6) credible evidence did not sustain the assertion that the town highway "migrated" to a location east of landowner's residence. Based on these findings of fact, the trial court concluded that Town Highway # 34/Dunham Road was not a "phantom road." Instead, the court found that the road "was lawfully established and laid out as a town highway and . . . [the road's] course and distance over the lands of landowner are fairly and reasonably determinable at this time."

¶ 4. On appeal, landowner does not dispute the creation of Town Highway # 34/Dunham Road; however, he contends that the Town failed to meet its burden of proving the course of the public highway with any reasonable degree of certainty.

¶ 5. We begin by setting forth the appropriate standard of review. We will uphold the trial court's findings of fact unless they are clearly erroneous, viewing the supporting evidence in a light most favorable to the prevailing party. Highgate Assocs., Ltd. v. Merryfield, 157 Vt. 313, 315, 597 A.2d 1280, 1281 (1991). A trial court's finding will not be overturned "merely because it is contradicted by substantial evidence; rather, an appellant must show there is no credible evidence to support the finding." Id. Further, "[w]here the trial court has applied the proper legal standard, we will uphold its conclusions of law if reasonably supported by its findings." Id. at 315-16, 597 A.2d at 1281-82.

¶ 6. At issue in this case is the existence of an "ancient road." Vermont law defines ancient roads or "unidentified corridors" as town highways that:

(i) have been laid out as highways by proper authority through the process provided by law at the time they were created or by dedication and acceptance; and

(ii) do not, as of July 1, 2010, appear on the town highway map prepared pursuant to section 305 of this title; and

(iii) are not otherwise clearly observable by physical evidence of their use as a highway or trail; and

(iv) are not legal trails.

19 V.S.A. § 302(a)(6)(A).

¶ 7. In an effort to quell the uncertainty that the existence of ancient roads places on private property rights, in 2006, the Vermont Legislature passed Act 178, giving towns the option of researching the existence of ancient roads, holding public hearings on these roads, and adding the roads to town highway maps by 2010. 2005, No. 178 (Adj.Sess.), § 1 (codified at 19 V.S.A. § 302(a)(6)(A)); see also E. Goldwarg, Note, Known Unknowns: Ancient Roads in Northern New England, 33 Vt. L.Rev. 355 (2008). All ancient roads not added to a town highway map by 2010 will revert to "unidentified corridors," and on July 1, 2015, all unidentified corridors will be discontinued and the right of way in these corridors will vest to the adjoining property owner. 19 V.S.A. § 302(a)(6)(A), (G).

¶ 8. The two sides do not dispute that a public highway, if found, gives the Town the right to maintain the road even if it runs through landowner's property. Rather, the two parties dispute whether the Town satisfied its burden of proving the course of a public highway through landowner's property. In McAdams v. Town of Barnard we addressed landowners' action to quiet title where a town claimed a right-of-way in an "ancient road" traversing landowners' property. 2007 VT 61, ¶ 13, 182 Vt. 259, 936 A.2d 1310. We noted that "[t]he difficulty in determining whether abandoned roads still legally exist stems from inconsistent, and sometimes incomprehensible, town records dating back two centuries or more." Id. We then placed the burden of proving title to the road on the town. Id.

¶ 9. In its argument that the Town has failed to meet its burden, landowner articulates five major objections to the trial court's findings: (1) the Town's evidence showing the beginning of Town Highway # 34/Dunham Road is "speculative"; (2) the Town's evidence showing the end of Town Highway # 34/Dunham Road is "speculative"; (3) the surveying techniques relied on by...