Traders, Inc. v. Bartholomew

• Decision Date: 07 February 1983
• Docket Number: No. 507-81,507-81
• Citation: 459 A.2d 974,142 Vt. 486
• Court: Vermont Supreme Court
• Parties: TRADERS, INC. v. Hollis BARTHOLOMEW, Clyde Bartholomew and Town of Benson.

Page 974

459 A.2d 974

142 Vt. 486

TRADERS, INC. v. Hollis BARTHOLOMEW, Clyde Bartholomew and Town of Benson.

No. 507-81.

Supreme Court of Vermont.

Feb. 7, 1983.

Bloomer & Bloomer, Rutland, for plaintiff-appellant.

Langrock, Sperry, Parker & Wool, Middlebury, for defendants-appellees Bartholomew.

Kelley & Meub, Ltd., Middlebury, for defendant-appellee Town of benson.

Before BILLINGS, HILL, UNDERWOOD and PECK, JJ., and LARROW, J. (Ret.), Specially Assigned.

BILLINGS, Justice.

Plaintiff-appellant commenced a declaratory judgment action in Rutland Superior Court, seeking a determination whether a town highway located in the Town of Benson, and passing through to plaintiff's 121 acres of landlocked property, had been properly discontinued; and, in the alternative, whether a way of necessity existed across defendants-appellees Bartholomew's land affording plaintiff access to its 121 acre parcel. The trial court concluded that the town highway discontinuance proceedings in 1908 were in accordance with statutory requirements and thus valid. The court further found that plaintiff had a prescriptive easement along the former town highway, but that such easement was limited by past use to a strip of "sufficient width to accommodate a driveway for a single dwelling with appurtenant agricultural uses."

Plaintiff appeals, claiming first that the town highway extended into the Town of Hubbardton, that it therefore was not discontinued in accordance with statutory law, and so still exists as a public highway. Alternatively, plaintiff contends that the easement is properly one of necessity, not a prescriptive easement, and that it therefore exists without limitation as to prior use.

We turn first to the facts as found by the trial court. Prior to 1908, Town Highway 16 ran east and west, crossing the land now owned by the Bartholomews, and bordering the northern boundary of the 121 acre parcel now owned by plaintiff. On August 15, 1908, the selectmen of the Town of Benson discontinued the highway some distance west of the 121 acre parcel, and set the road to the owners on the north and south, one-half to each: the owners on the north took everything north of the centerline, and those on the south everything south of the centerline. P.S. § 3904 (1906) (current version at 19 V.S.A. § 535). Plaintiff, however, claims that in 1908 the highway extended all the way into the Town of Hubbardton, and since the Benson selectmen did not take their discontinuance proceedings into the county court, as required when a highway extends into two or more towns, the discontinuance was invalid. P.S. § 3873 (1906) (current version at 19 V.S.A. § 681).

In support of its claim, plaintiff introduced at trial an unofficial 1869 edition of the Beer's Atlas for Rutland County, showing the existence of an unnamed road extending into Hubbardton. The trial court found no other evidence tending to show that any portion of the road to Hubbardton was a town, state aid or public highway in 1908. On the other hand the Town of Benson introduced various highway maps and other records in support of its claim that Highway 16 did not extend to Hubbardton. Based on all the evidence, the trial court found that in 1908 Town Highway 16 did not extend into Hubbardton and that Benson's discontinuance proceedings were proper. See P.S. §§ 3873, 3900-3901 (1906) (current versions at 19 V.S.A. §§ 681, 531, 532).

On the record before us, we cannot say that the trial court erred in determining that the 1869 Beer's Atlas was of insufficient weight to establish that Highway 16 continued into the Town of Hubbardton in 1908. This is especially true, given the presumption that action taken by selectmen in the scope of their official duties is regular and in accordance with statutory requirements. Murray v. Webster, 123 Vt. 194, 200, 186 A.2d 89, 93 (1962). Moreover, defendants presented ample evidence that, in their discontinuance proceedings, the Benson selectmen complied with statutory requirements for notice, examination of premises, hearing and recording. P.S. §§ 3900-3901 (1906) (current versions at 19 V.S.A. §§ 531-532). We therefore affirm the trial court's finding that in 1908 Highway 16 did not extend into two or more towns, and thus that the road was properly discontinued. Given that the discontinuance was proper and valid, we proceed to evaluate plaintiff's second claim, whether an unlimited way of necessity exists over the discontinued road leading to its 121 acre parcel.

At the time of the discontinuance the disputed 121 acre southern parcel, now owned by plaintiff, as well as two other parcels north of the highway, now owned by the Bartholomews, were all commonly owned. At that time, given the single ownership, there was full access to the southern 121 acres through the parcel lying north of the old highway's centerline. In 1931, after having mortgaged the two northern parcels, the common owner lost them by a decree of foreclosure. By such action, the 121 southern acres were severed from the two northern parcels, thus landlocking the southern property. Ownership of the two northern properties devolved to defendants Bartholomew in 1944. In 1971, the Bartholomews purchased a lot south of the discontinued highway, adjacent to and just west of the 121 acre parcel. This lot came out of an entirely separate line of title, and was never part of the commonly owned lands. In 1976, after several transfers of title, plaintiff obtained ownership of the 121 acre landlocked parcel, with no right-of-way reserved in the deed.

The court below found that evidence was totally absent regarding the use made of the discontinued road up until 1943. However, in 1943 the Bartholomews purchased timber on the 121 acre parcel from its then owners, and used the road to remove the timber. In that same year, the then owners of the 121 acre parcel erected a small dwelling house on their land, and used the road until 1976 for ingress and egress, and for light agricultural purposes. In 1973, the Bartholomews built a gate at the westernmost point of the discontinued highway thus blocking the way leading to plaintiff's 121 acre parcel. They did this with the apparent consent of the then owners, who continued to have access through the gate. Plaintiff, since acquiring ownership of the 121 acre parcel in 1976, has neither occupied the land for dwelling purposes, nor driven motor vehicles over the discontinued road.

The trial court found that by their use of the discontinued road during the period from 1943 to 1976, the prior owners of the 121 acre parcel had established a prescriptive easement to the portion of the roadway leading to their land. The court further found that the scope of the easement was limited by the use which created it: ingress and egress to and from a single dwelling house, with appurtenant agricultural uses. This easement passed to plaintiff through its predecessors in title. Plaintiff takes exception to this conclusion, contending that, for the purposes of determining the nature and scope of the easement, the relevant date was not 1943, when its predecessors commenced to use the roadway, but rather 1931, when the 121 acre parcel was severed by the foreclosure action and effectively landlocked. This severance, plaintiff argues, created a way of necessity twelve years prior to the actions giving rise to a prescriptive easement. Further, plaintiff urges the scope of a way of necessity is not limited by its prior use, but rather is coextensive with the full and reasonable present and future enjoyment of the dominant estate. The Bartholomews take the contrary position, contending first that plaintiff has not met the requirements of a way of necessity, and further that such a way is limited to the use at the time of the severance.

This Court has long since ruled that when, as a result of the division and sale of commonly owned land, one parcel is left entirely without access to a public road, the grantee of the landlocked parcel is entitled to a way of necessity over the remaining lands of the common grantor or his successors in title. Clark v. Aqua Terra Corp., 133 Vt. 54, 329 A.2d 666 (1974); Pennock v. Goodrich, 104 Vt. 134, 157 A. 922 (1932); Willey v. Thwing, 68 Vt. 128, 34 A. 428 (1896); Tracy v. Atherton, 35 Vt. 52 (1862); Smith v. Higbee, 12 Vt. 113 (1840).

A way of necessity rests on public policy often thwarting the intent of the original grantor or grantee, and arises "to meet a special emergency ... in order that no land be left inaccessible for the purposes of cultivation." Howley v. Chaffee, 88 Vt. 468, 473, 93 A. 120, 122 (1915). "Its philosophy is that the demands of our society prevent any man-made efforts to hold land in perpetual idleness as would result if it were cut off from all access by being completely surrounded by lands privately owned." 2 Thompson on Real Property § 362, at 382 (1980).

It is apparent from the cases cited and arguments propounded by defendants Bartholomew that they have confused the law regarding a way of necessity with the wholly distinct doctrine of easements by implication. As we have had occasion to point out, see Howley v. Chaffee, supra, 88 Vt. at 473, 93 A. at 122, the two are distinguishable by the circumstances which give rise to them, the policy bases which support them and the legal consequences which flow from them. See Tallarico v. Brett, 137 Vt. 52, 57, 400 A.2d 959, 962 (1979); Chevalier v. Tyler, 118 Vt. 448, 111 A.2d 722 (1955); Wheeler v. Taylor, 114 Vt. 33, 39 A.2d 190 (1944); Read v. Webster, 95 Vt. 239, 113 A. 814 (1921); Howley v. Chaffee, supra; Goodall v. Godfrey, 53 Vt. 219 (1980). See generally, 2 Thompson, supra, §§ 355-362.

The Bartholomews correctly argue that there was a complete failure to prove the use made of the land by the common owner prior to and at the time of the severance. However, while such failure would be fatal to a finding of an easement by implication, Tallarico v....