Town of Newfane v. Walker

• Decision Date: 17 December 1993
• Docket Number: No. 92-236,92-236
• Parties: TOWN OF NEWFANE v. John H. and Linda A. WALKER and Joseph L. and Dorothy Druke.
• Court: Vermont Supreme Court

Page 1074

637 A.2d 1074

161 Vt. 222

TOWN OF NEWFANE v. John H. and Linda A. WALKER and Joseph L. and Dorothy Druke.

No. 92-236.

Supreme Court of Vermont.

Dec. 17, 1993.

J. Garvan Murtha and Richard C. Carroll of Kristensen, Cummings, Murtha & Stewart, P.C., Brattleboro, for plaintiff-appellee.

Joseph J. O'Dea, Manchester, for defendants-appellants.

Before ALLEN, C.J., and GIBSON, DOOLEY and MORSE, JJ., and PECK, J. (Ret.), Specially Assigned.

MORSE, Justice.

Defendant landowners appeal from a superior court order permanently enjoining them from interfering with the public's use of the so-called Williamsville dam and swimming hole area and declaring that plaintiff Town owns the property in fee. We affirm in part and reverse in part.

This is one in a series of cases, and the second to be decided by this Court, involving the public's right of access to and use of the Williamsville swimming hole. In Druke v. Town of Newfane, 137 Vt. 571, 409 A.2d 994 (1979), the Drukes sought to limit public access across their land to the swimming hole. We upheld the superior court's finding that the access road had been dedicated to the public. Id. at 577, 409 A.2d at 996.

In 1987, a storm breached the dam, and the swimming hole, which was basically a pond created by water backed up behind the dam, disappeared, leaving a bed of gravel. Believing that the dedication found in Druke was an easement that was extinguished when the pond ceased to exist, landowners renewed their efforts to limit public access to the area by posting no trespassing signs and opposing efforts to repair the dam. The superior court enjoined them from doing so, declaring that the entire length of the stream-bed forming the southern border of landowners' property, not just the right of access to the stream, had been dedicated to the public to the high water mark and that the Town of Newfane held the property in fee simple. Landowners appeal these determinations and additionally contest the court's interpretation of their deeds, setting the boundary of their property at the northern high water mark of the stream.

Since at least 1786, a gristmill has existed on the property now owned by defendants Walker. In 1839, the mill was rebuilt and operated by William H. Williams. By 1898, the entire gristmill property, including land both north of the stream, now owned by landowners, and south of the stream, now owned by the Town, was owned by John W. and Fanny C. Williams. During the Williams' ownership, the general public enjoyed full use of the dam area, including the right to swim, fish, picnic, draw water for farm animals, cut and remove ice, and gather gravel from the stream bed.

In 1943, John Williams sold the mill buildings and surrounding lands north of the stream to Michael Fitzmorris. The deed described the property conveyed as

Being the Williams Mill property, so-called, on Grist Mill Road consisting of the old gristmill and buildings pertaining thereto ... but reserving from this conveyance the dam and water power rights formerly pertaining to said mill and a right of access thereto across premises herein conveyed for the grantors, their heirs and assigns and the public generally.

By 1968, Fitzmorris had conveyed the gristmill property to Walter Zuk, the Walkers' predecessor-in-interest, and to defendants Druke. In 1975, Cheney Williams, John's son and heir, conveyed by quitclaim deed the land reserved to him, including the dam, water power rights, and a right of access, to the Town of Newfane. By the same deed, he also conveyed three parcels on the other side of the stream to the Town.

The trial court held, under a theory of dedication and by deed, that the Town owned title in fee simple to the dam area. We agree that the facts found by the court are sufficient to establish a dedication, but disagree about the nature and scope of what was dedicated. We hold that the Town received by dedication, and continues to hold, an easement over the dam property, which was not extinguished when the dam was breached.

The court's conclusion that the dam and swimming hole property had already been dedicated to the public by 1943 is supported by its findings and the record. Both the facts and the analysis here parallel those of Druke. "Dedication is the setting apart of land for public use, either expressly or by implication of law. It may be shown by the owner's writings, affirmative acts, acquiescence in public use, or some combination thereof, so long as the owner's intent to dedicate clearly appears." 137 Vt. at 574, 409 A.2d at 995. The court found that, at least since 1912, the public had actively and continuously made use of the waters both above and below the dam for a variety of activities, including fishing, swimming, skating, ice cutting, washing vehicles, sunbathing, and picnicking. John Williams, during the long period he owned the property, did nothing to discourage and much to encourage the public's enjoyment of it. He continued to repair the dam even after the mill ceased to function and the dam was no longer necessary to generate power. Here, as in Druke, the public's use of the land for more than forty years "for the purpose for which it was dedicated is in law equivalent to an acceptance" and completed the dedication. Id. at 576, 409 A.2d at 996.

Finally, here, as in Druke, the language in Williams's deed to Fitzmorris, reserving the "dam and water power rights" for "the public generally," is further evidence of his intention to dedicate the swimming hole property. Id. at 575, 409 A.2d at 995. The dedication predated the deed. The deed did not create an interest in the public; it recognized a pre-existing interest in the public created by dedication. Id. at 576, 409 A.2d at 996.

Questions remain about the nature of the dedication, that is, what interest it conveyed to the public. Although we agree with the trial court that the swimming hole property and dam area have been dedicated, we do not agree that the dedication was a fee. A common-law dedication, unlike a more formal statutory dedication, does not pass fee simple; rather, it passes an easement to use the property in a manner consistent with the dedication. See, e.g., Chester v. Gilchrist, 64 Md.App. 541, 497 A.2d 820, 821 (1985), rev'd on other grounds, 307 Md. 422, 514 A.2d 483 (1986); Town of Reydon v. Anderson, 649 P.2d 541, 543 (Okla.1982); Boyd v. Hyatt, 294 S.C. 360, 364 S.E.2d 478, 482 (1988); see also County of Bennington v. Town of Manchester, 87 Vt. 555, 557, 560, 90 A. 502, 503, 504 (1914) (affirming that town dedicated courthouse to county but defining dedication as an easement only and holding that town retained fee interest in courthouse property). The theory underlying dedication is that owner-permitted use of private property by the public creates an "estoppel in pais," see Druke, 137 Vt. at 576, 409 A.2d at 996, that is, an expectation of continued use that estops the owner from preventing it. Use, not ownership, is the crux of dedication.

The dedication here was an easement, but the scope of the dedication, not the nature of the property interest it conveys, determines how the public may use the property. Jacobs v. Lyon Township, 199 Mich.App. 667, 502 N.W.2d 382, 384 (1993). Although the chain of deeds from ...