Forestdale Heights, Inc. v. Essex Junction Sch. Dis t., No. S0215-08 CnC (Toor, J., May 5, 2010) [The text of this Vermont trial court opinion is un official. It has been reformatted from the origina l. The accuracy of the text and the accompanying data included in the Vermont trial cou rt opinion database is not guaranteed.] S TATE OF V ERMONT C HITTENDEN C OUNTY

│ FORESTDALE HEIGHTS, INC. │ Plaintiff │ │ S UPERIOR C OURT v. │ Docket No. S0215-08 CnC │ ESSEX JUNCTION SCHOOL DISTRICT │ Defendant │ │

FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER This is a dispute arising out of an error in the cr eation or filing of a deed to land in Essex Junction. A court trial was held on April 8; post-trial filings were complete April 29. Plaintiff was represented by Carl Lisman, Esq. and Adam Bergeron, Esq.; Defendants were represented by Christopher Roy, Esq. and Josep h Farnham, Esq. The witnesses at the hearing were Hector LeClair and Brooke Scatchar d. Findings of Fact In 1978, an entity by the name of Forestdale Height s, Inc., a land development company, sold to the Essex Junction School District a parcel of land the parties refer to as the Saxon Hill Forest. It is comprised of approxima tely 90 acres of mostly forested land. Hector LeClair was one of the principals in Forestd ale at the time. He and his three partners were all involved in the negotiations to s ome extent. The sale to the school district was in conjunction with Forestdale’s purch ase of 680 acres from the Village of Essex, with the 90 acres being a portion thereof. This case has made its way to the courthouse doors because, unfortunately, the

deed that was recorded with the Town Clerk was miss ing some language. The relevant

section reads as follows:2 Forestdale Heights, Inc., for itself, its successor s and assigns, also hereby grants to the Essex Junction S chool District, its successors and assigns, an easement 1 5 feet in width for use by the Essex Junction School District and its guests, over the extension of the Saxon Hill Road, so-called for the purpose of pedestrian and vehicular access to the lands hereby conveyed, to the intersection thereof with the road crossing Saxon Hill. lands conveyed herein shall be for public usage for conservation/recreation and educational purposes on ly. Exhibit 1, pp. 1-2. The missing language is, obviou sly, that preceding the word “lands.” That word starts the second page of the deed, sugge sting either that a portion of the page was missed in photocopying or that it was dropped i n the typing.

Forestdale has offered in evidence a different vers ion of the deed with an identical first page but an entirely different second page. T hat page also starts midsentence. It

reads as follows:

that Forestdale Heights, Inc., its successors and a ssigns, reserves the right to relocate, redesignate or elim inate any such road, roadway or path so long as such action d oes not unreasonably or unnecessarily impede the Essex Junc tion School District or its guests from obtaining access to or from the lands benefitted by this grant. It is an express condition of this conveyance that the lands conveyed herein shall be used for conservation/recr eation and educational purposes only, and any use not so conforming shall work a forfeiture to Forestdale He ights, Inc., or its successors or assigns. Exhibit 2, p. 2. Both versions of the deed are signed and dated in t he same fashion and on the same date, August 15, 1978. No explanation has been offered by the parties for the two different versions of the deed, but it is apparent that neither is complete. Mr. LeClair testified that although he is the current custodian of Forestdale’s business records, some of the old files were burned in a fire. Likewise, c ounsel who prepared the deed (Attorney3

Lisman’s office) have been unable to locate the law firm’s file from that time period, over thirty years ago. Exhibit 2 came from Forestdale’s files. LeClair testified that Exhibit 2, not Exhibit 1, de scribes the arrangement he recalls. However, he did not offer a great deal of detail or explanation. He has “no idea” how what he believes to be the wrong deed got recor ded. However, he assumes that it would have been the buyer – the School District – t hat would have recorded the deed. He also has no explanation for the missing language in Exhibit 2. In 2004, the School District leased the parcel to t he Town of Essex for a twentyfive year period. The lease specifies that the Town may use the land “for conservation, recreational and educational purposes only.” Exhibi t 4. LeClair believes that transferring management of the property to the Town constituted an event that triggers forfeiture of the property requiring that it be returned to Fores tdale. He states that the intent of the original sale to the School District was “for educa tion” and “for the kids to learn about forestry.” He does not believe management by the T own is the same as that by the School District. However, he agrees neither deed s ays that a sale or lease of the property requires forfeiture. In addition, although he testi fied to his intent that the School keep the property, he did not testify that such intent was e ver conveyed to the School District or agreed to by it.

The court also notes that in a 2004 letter from For estdale’s counsel to the Town, it is represented that the 90 acres was conveyed to th e School District because the Town required Forestdale to do so, not out of the goodne ss of the company’s heart. See Exhibit 5 (“as part of a condition imposed upon it by the V illage of Essex Junction, [Forestdale] transferred approximately 90 acres of the Park to t he Essex Junction School District”).4

This creates some question as to the true intent of Forestdale at the time of the

conveyance. Undercutting LeClair’s claim that Forestdale did no t intend to allow the School District to lease or sell the property is the deed language (in both versions of the deed) referring to the School District’s “successors and assigns.” Exhibit 1, p. 1; Exhibit 2, p.1. This clearly indicates that it was anticipated that the District might lease or sell its rights in the property at some future date. LeClair has been on the 90 acre parcel in recent ye ars. He noted that it did not appear that it was being managed under a forest man agement plan “as it was supposed to be.” Again, however, there is nothing in the deed r equiring a forest management plan. Since 2004 LeClair has noted new trails on the prop erty, which were built by a group called The Fellowship of the Wheel. The trails are used for bicycling and for walking. The Fellowship of the Wheel is a non-profit organiz ation that is in the business of creating and maintaining mountain biking trails. It works with the Town’s Director of Parks and Recreation, which has given the group aut horization to build and maintain trails. They are in frequent communication. The Fel lowship cleans up the trials and post signs asking people to stay off the trails when the y are too muddy. The trails are quite popular with mountain bikers. Only members of the o rganization are entitled to obtain trial maps, but the trails are open to the general public. The trails are compacted dirt, with some wooden bridges up to two feet wide over wet ar eas. Last year the Fellowship did a four-day project wit h the Essex Middles School, in which the students assisted in building a new trail . They also did projects with twelve to eighteen Center for Technology students four mornin gs a week for three to four hours. They do invite donations from users of the trails.5 LeClair agrees that use by bicycles is “recreationa l” and does not object to bicyclists’ use of the property. His objection is t hat parties other than the School District or the Town are using the property. He agrees the p roperty is still open for conservation,

recreational and educational uses. Forestdale is currently trying to develop the remai ning lands adjoining the 90-acre parcel. Although LeClair hopes that the plans can p roceed without regaining ownership of the 90 acres, the current development plan submi tted to the Town for approval anticipates that Forestdale will regain the 90 acre s.

Conclusions of Law Forestdale argues that Exhibit 2 is the operative d eed, that it is ambiguous as to who was intended to use the parcel, that parol evid ence establishes that it was to be limited to the school district, and that both the l ease to the Town and the use of the land by the fellowship of the Wheel operate as a forfeit ure of the District’s rights under the

deed. The court concludes that both deeds are missing lan guage and therefore both are ambiguous to some extent. If one were missing langu age and the other were not, the complete document would seem more likely to be corr ect. Here, neither on its face is obviously more likely to be the correct deed. Fore stdale argues that there was no

evidence as to how Exhibit 1 came into existence or was delivered to the School District. However, the deed is fully executed by the parties to the transaction and was recorded on August 15, 1978, the date of its execution. The fac t that it was recorded is prima facie evidence of its delivery. Rich v. Wry , 110 Vt. 307, 311 (1939). “The recording of a regularly executed and acknowledged deed by either the grantor or the grantee raises a rebuttable presumption of delivery, which is entitl ed to great and controlling weight.” 236

Am. Jur. 2d Deeds § 141 (West, Westlaw through Marc h 2010). “When a presumption of delivery arises, nothing except the most satisfacto ry evidence of nondelivery can prevail against it; a mere preponderance of the evidence is not sufficient.” Id .§ 148. Given that no one has offered any explanation for why an incor rect deed would have been recorded,

the recorded deed is the more reliable of the two d ocuments. The court finds no credible

evidence that it was not delivered. Although LeClair testified that he found the other deed in Forestdale’s files, that does not rebut the presumption of delivery from rec ordation. Even if it might otherwise rebut the presumption, the fact that it is incomple te undercuts its effectiveness in doing so. Nor does the court find any other credible evid ence that the unrecorded deed is the correct one. Although LeClair testified that the la nguage regarding forfeiture was what he intended, given that the events occurred over thirt y years ago, that the transfer of the lands appears to have been at the behest of the Tow n rather than because of some particular desire by Forestdale to insure recreatio nal and educational use of the property, that LeClair’s other testimony that he intended non -transferability of the property is contradicted by the clear language of both deeds, a nd that LeClair apparently has a financial motive for obtaining the return of the la nd, the court did not find persuasive his explanation of the original intent of the transfer. The recorded deed states that the lands conveyed “s hall be for public usage for conservation/recreation and educational purposes on ly.” It contains no language referring to any forfeiture of the property. It is undisputed that the land is being used for recreational and educational purposes only. It is a lso open to the public. Thus, the uses to7

which it is being put are entirely consistent with the deed. Nor is there anything in the deed barring the lease of the land to the Town. 1 Although Forestdale argues that page two of Exhibit 2 flows more directly from page 1 because it refers to a road as does page 1, there is nothing about page 2 of Exhibit 1 that is inconsistent with page1. Both page twos s tart in the middle of a sentence and thus both are lacking continuity with page 1. Forestdale also argues that the deeds are ambiguous as to who may use the land. The court finds no ambiguity. Instead, on its face the deed limits the types of uses that can be made, but not the types of users who may be allowed. There is nothing ambiguous

about that. Finally, Forestdale argues that by allowing the Fel lowship of the Wheel to alter the natural landscape by building bicycle trails, a nd to collect donations from users of the trails, the Town has gone beyond “recreational” use of the land. The court disagrees. While trail building and the collection of donation s may not themselves be recreation, they are incidental to recreational use of the prop erty. They do not constitute a violation

of the terms of the deed.

Order

The court concludes that Exhibit 1 constitutes the controlling deed, and that page

two of the deed should read “The use of such lands herein conveyed shall be for public usage for conservation/recreation and educational p urposes only.” The court concludes that the deed does not prohibit the lease of the property so long as the uses continue as described in the deed. The parties are hereby ordered to

1 Even if Exhibit 2 were the controlling deed, the court would conclude that no forfeiture has occurr ed. That deed allows use of the land for “conservation/ recreation and educational purposes only.” The cour t finds that all the current uses of the land meet th is description. Nothing in either deed requires the land to stay in the control of the School District as oppos ed to the Town.8

submit a stipulated proposed judgment within ten da ys. If they cannot agree on the language, each party should submit their proposed l anguage for the court to consider.

Dated at Burlington this 5th day of May, 2010.

_____________________________ Helen M. Toor Superior Court Judge