Nancy E. Fields Revocable Trust v. Rubinstein, No. 607-10-16 Wncv (Tomasi, J., July 14, 2020).

[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the original. The accuracy of the text and the 

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VERMONT SUPERIOR COURT

SUPERIOR COURT CIVIL DIVISION

Washington Unit Docket No. 607-10-16 Wncv

│

Nancy E. Fields Revocable Trust, │

 Plaintiff, │

│

 v. │

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Kenneth Rubinstein and │

Five Ways Farm, LLC, │

 Defendants. │

│

Opinion and Order on Cross-Motions for Summary Judgment, 

MPRs #3 and #22

In this case, Plaintiff Nancy E. Fields, Trustee of the Nancy E. Fields 

Revocable Trust (Ms. Fields) claims that Defendants Kenneth Rubinstein and Five 

Ways Farm, LLC, (collectively, Mr. Rubinstein) have obstructed Ms. Fields’ use of a 

right of way (ROW) crossing property of Mr. Rubinstein. The contested ROW 

extends from a parcel (frontage lot) that does not abut but has uncontested public

highway access to a separate “mountain lot” parcel, both owned by Ms. Fields. The 

Rubinstein parcel that the ROW crosses sits between and is contiguous with both 

Fields parcels.

I. Procedural Posture

In earlier proceedings in this case, Mr. Rubinstein simultaneously filed three 

separate motions for summary judgment. The Court (Teachout, J.) granted one to 

the effect that the only plaintiff who is a real party in interest is Ms. Fields in her 
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capacity as Trustee for the Plaintiff Trust. The Court denied the second addressing 

“prescriptive termination.” And the Court denied the third in which Mr. Rubinstein 

argued that there is no effective “deed basis” for any ROW providing access to Ms. 

Fields’ mountain lot. See generally Summary Judgment Decision (filed August 28, 

2019).

With regard to Mr. Rubinstein’s “deed basis” argument, the Court ruled as 

follows:

Defendants [Rubinstein] claim Plaintiff Trust [Fields] has no 

easement because no easement was ever originally created by either 

grant or reservation in a deed. However, land records show that the 

easement right has been granted to all holders in Plaintiff Trust’s 

chain of title since 1965 and was excepted from what Defendants 

acquired in their original acquisitions in 1997 and 1998 and was 

previously an exception in their chain of title. A survey of it was 

recorded in 1965. The land contract recorded in the land records in 

1961, with Goves as parties, demonstrates that a physical roadway 

existed on the land as of that time and there is no dispute as to its 

original location and that it led from the Trust’s frontage lot to the 

mountain lot. The Goves conveyed the intervening land in 1963, 

reserving and excepting the easement.

There may well be legal bases to support the Trust’s current 

ownership of the easement right. The court is not satisfied that all 

facts pertinent to possible claims (such as adverse possession with or 

without color of title, acquiescence, estoppel, marketable record title) 

have been presented such that the issue may be decided on 

Defendants’ motion for summary judgment. The court cannot conclude 

that there is no basis for Plaintiff Trust’s claim of an easement right to 

the mountain lot. The Defendants’ Motion for Summary Judgment on 

the basis of deeds is denied. Plaintiff Trust is not foreclosed from the 

opportunity to prove its claims.

Id. at 5 (footnote omitted). The Court denied Mr. Rubinstein’s efforts at 

reconsideration, denied Ms. Fields’ later filed summary judgment motion as 

untimely, and attempted to steer the case towards trial.
3

Following a rotation of judges and difficulties scheduling a bench trial 

convenient to the Court and the parties, the parties presented the Court with a 

stipulation contemplating that the Court would reconsider those cross-motions for 

summary judgment disposed of by Judge Teachout that addressed what Mr. 

Rubinstein characterizes as the “deed basis” for the existence of the easement 

claimed by Ms. Fields.1 At a status conference, both sides expressed their view that 

the summary judgment record before Judge Teachout was fully sufficient to support 

summary judgment, with, of course, each side believing that judgment should be 

entered in its favor. 

The issue of the lawful existence of a deeded ROW is central to the case and 

awarding judgment on that issue pretrial would dramatically simplify (or 

potentially eliminate the need for) a trial. At the parties’ urging, and with 

additional briefing anticipated, the Court agreed to take a fresh look at their 

motions. See Scheduling Stipulation (filed Feb. 13, 2020). Having now done so, the 

Court makes the following determinations. 

II. Mr. Rubinstein’s “Deed Basis” Theory/the “Deed Issue”

Mr. Rubinstein asserts that, upon close reading, the relevant deeds do not 

support the existence of Ms. Fields’ claimed ROW. Specifically, his argument 

1 While Ms. Fields’ motion also raises the way of necessity issue, that matter 

appears to be outside the scope of the parties’ stipulation, and Ms. Fields admits 

that the “deed theory” is the “sole” issue upon which she is seeking summary 

judgment. In any event, to the extent discussed below, the Court is satisfied that 

there are material disputes of facts concerning that issue that would preclude entry 

of summary judgment on that basis.
4

proceeds essentially as follows.2 (1) By no later than 1961, the Robinsons had come 

to own all contiguous parcels relevant to this case that now are owned by Ms. Fields 

and Mr. Rubinstein.3 (2) If any deeded ROW from the frontage lot to the mountain 

lot pre-existed the Robinsons’ common ownership of these contiguous parcels, 

common ownership terminated it. (3) On October 25, 1961, the Robinsons conveyed 

property to the Ricketts that would have been burdened by the ROW if it still 

existed but the Robinsons did not retain any right of access to the mountain lot. 

The very next day, this property was conveyed to the Goves and eventually came to 

be owned by Mr. Rubinstein.4 

(4) On November 1, 1963, the Robinsons conveyed the frontage and mountain 

lots to the Ricketts, purporting to also convey a ROW between them. This property 

eventually came to be owned by Ms. Fields. (5) Because the historical ROW, if it 

ever existed, was terminated by the Robinsons’ common ownership of all relevant 

parcels, and the Robinsons then conveyed away the property that would have been 

2 Mr. Rubinstein’s numerous additional arguments largely follow from his “core” 

argument, as described here, and quickly descend into disputes of fact and rely on 

factual inferences inappropriate for summary judgment.

3 Mr. Rubinstein asserts this fact of common ownership, and his expert adopts it, 

but in a somewhat conclusory fashion. Ms. Fields agrees with that fact. The Court 

thus accepts it as undisputed for purposes of this decision. The Court is not able, 

however, to track the language of the deeds in the record and independently arrive 

at the same conclusion. That could be because the record is missing evidence that 

would fill in some gaps or because certain deed language requires further 

explanation to be better understood. 

4 A signed contract made in connection with the conveyances, however, indicates an 

intention to maintain the ROW through a process of conveyance and retention.
5

burdened by a ROW to Mr. Rubinstein’s predecessors in title without retaining any 

right to a ROW, the Robinsons had no ownership of any ROW to later convey to Ms. 

Fields’ predecessors in title. Subsequent deed references to the ROW in either 

chain of title cannot resurrect it, according to this theory. References in Ms. Fields’ 

chain of title all are flawed due to the Robinsons’ failed attempt at conveying 

something they no longer owned—one cannot convey what one does not own. 

References in Mr. Rubinstein’s chain of title directly conflict with the so called 

“stranger-to-the-deed rule.”5 On those bases, concludes Mr. Rubinstein, if one looks 

only to the deeds, there is no effective ROW connecting Ms. Fields’ frontage lot and 

mountain lot across Mr. Rubinstein’s lot.

Mr. Rubinstein’s argument finds strong initial support in the merger 

doctrine:

Under the common-law merger doctrine, an easement ceases to 

exist when the dominant and servient estates come into common 

ownership. “When the burdens and benefits [of an easement] are 

united in a single person . . . the servitude ceases to serve any function. 

Because no one else has an interest in enforcing the servitude,

the servitude terminates.” Merger occurs by operation of law.

Fletcher v. Ferry, 2007 VT 8, ¶ 5, 181 Vt. 294, 296–97 (citations omitted). This is so 

regardless whether the common owner intended merger or not. Id., 2007 VT 8, ¶ 7, 

181 Vt. at 297–98.

5 Mr. Rubinstein allows that a subsequent conveyance recreated one segment of a 

ROW, but he argues that the segment, viewed in isolation, cannot serve any 

legitimate purpose and therefore terminates as a matter of law.
6

Ms. Fields concedes common ownership of the relevant parcels in the 

Robinsons. See supra n.2. She then, however, largely disregards as mere oversight 

the Robinsons’ failure, having allowed the ROW to terminate, to re-establish it at 

the time of their subsequent conveyance of the would-be servient parcel to the 

Ricketts. “Oversight” is not a legal theory.6 As Fletcher demonstrates, even if the 

Robinsons intended common ownership to not terminate the ROW, it would have 

done so anyway. Ms. Fields has not come forward with any viable way in which 

common ownership would not have terminated the ROW. 

Nor is the parties’ “intent” sufficient to rewrite the plain language of the 

deeds. Ms. Fields argues that there is “no doubt” that there is ambiguity in the 

1961 recorded contract and the deed from the Robinsons to the Ricketts that fails to 

reserve the ROW. She argues that the extrinsic evidence is clear, however, as to 

what the parties really intended: the reservation of the ROW so that it would 

properly pass along Ms. Fields’ deed chain. 

The record certainly includes ample extrinsic evidence of the parties’ intent 

that is not consistent with the failure to reserve a ROW to the mountain parcel in 

the relevant conveyance to the Ricketts. Any “mistake,” however, in failing to 

6 “Reformation,” on the other hand, provides a remedy where, through mistake, 

inadvertence, or neglect, the words of a deed do not represent the actual conveyance 

as intended by the parties. LaRock v. Hill, 131 Vt. 528, 530–31 (1973). A party 

seeking reformation must make an exacting showing, however. She must prove 

beyond a reasonable doubt that there was a valid pre-existing agreement that 

represents “a standard to which the erroneous writing could be reformed so as to 

express the true transaction between the original parties to the deed.” Kilcullen v. 

Dery, 133 Vt. 140, 142, (1975). Ms. Fields has not sought reformation in the current 

motions.
7

expressly reserve or convey such an easement is not properly framed as an 

“ambiguity” in the language of the relevant deed. An ambiguity in a deed must be 

located in the “particular language” of the deed. Kipp v. Chips Estate, 169 Vt. 102, 

107 (1999); see also Isbrandtsen v. N. Branch Corp., 150 Vt. 575, 579 (1988) 

(“Ambiguity will be found where a writing in and of itself supports a different 

interpretation from that which appears when it is read in light of the surrounding 

circumstances, and both interpretations are reasonable.”). In this instance, there is 

no issue of interpretation as to the language of the deed. The deed contains no 

confusing wording that extrinsic evidence demonstrates is legally ambiguous. It 

simply omits—unambiguously—any reservation of the ROW altogether.

Mr. Rubinstein’s deed basis argument finds further support in the strangerto-the-deed rule. Following merger and absent express creation of a new ROW, 

subsequent deed references to the ROW in the Rubinstein chain of title are, at most, 

exceptions in respect of rights in third parties who are strangers to the conveyances 

memorialized in the deeds. Vermont continues to adhere to the stranger-to-thedeed rule: “The prevailing rule is that the grantee of a deed that contains an 

exception in favor of a stranger is not estopped to deny the efficacy of the exception. 

Such an exception is effective only to confirm a pre-existing right and will not itself 

vest any title or interest in the third person.” Tallarico v. Brett, 137 Vt. 52, 59 (1979) 

(citation omitted, emphasis added); see also Guilbault v. Bowley, 146 Vt. 39, 41 

(1985) (“The reference to the defendants’ water line contained in the plaintiffs’ deed 

did not create any interest not previously existing in the defendants nor does it 
8

estop the plaintiffs from challenging the defendants’ interest, since the defendants 

were not parties to that deed. Thus, it must be determined whether the defendants 

acquired an enforceable interest in the water line by some other means.” (citation 

omitted)). 

The above rule has been criticized, and it has been abandoned in the most 

recent Restatement. It is still the law of Vermont, however, and remains the 

majority rule. See Jon W. Bruce and James W. Ely, Jr., The Law of Easements & 

Licenses in Land § 3:9; Restatement (Third) of Property (Servitudes) § 2.6(2).

Accordingly, Mr. Rubinstein is entitled to summary judgment on this issue. 

The common ownership of the parcels eliminated the “deed basis” for the ROW.

III. Other Bases for the Claimed ROW

Mr. Rubinstein would have the Court enter judgment in his favor on Ms. 

Fields’ claims based solely on the above legal conclusion. He maintains that 

Plaintiff should be barred from raising any additional or equitable theories in 

support of the claimed ROW. The present record before the Court does not support 

that determination. 

The pleadings do not limit Ms. Fields’ bases for relief. The Amended 

Complaint (filed Nov. 3, 2016) asserts that Ms. Fields accesses the otherwise 

landlocked mountain parcel over a ROW referred to and described (however 

vaguely) in numerous deeds, as well as a recorded contract, in both Ms. Fields’ and 

Mr. Rubinstein’s chains of title that crosses contiguous Rubinstein property. The 

Amended Complaint goes on to assert numerous claims based on Mr. Rubinstein’s 
9

alleged interference with Ms. Fields’ claimed ROW. Other than reciting some of the 

relevant deed histories, the recorded contract, general circumstances, and that the 

mountain parcel otherwise would have no public highway access, the Amended 

Complaint does not include any exploration of the possible legal theories that might 

support the existence of Ms. Fields’ claimed ROW. 

The only count in the complaint directly addressing the existence of the ROW 

(as opposed to interference with the ROW) says only this:

Plaintiffs seek a declaratory judgment from this Court that Plaintiffs, 

their heirs, and assigns, are the lawful owners of, and have full right 

and authority to use and occupy in perpetuity, the Fields Right of Way 

for access to and from Fields 2 [the mountain lot], subject only to the 

restrictions and limitations imposed on a portion of the Fields Right of 

Way in the deed to Plaintiffs from Peter and Dorothy Damone dated 

March 5, 1997, and recorded in Book 116 Page 359 of the Warren land 

records.

Amended Complaint ¶ 62 (filed Nov. 3, 2016). 

“[P]leading rules call for ‘a short and plain statement of the claim showing 

that the pleader is entitled to relief’; they do not countenance dismissal of a 

complaint for imperfect statement of the legal theory supporting the claim 

asserted.” Johnson v. City of Shelby, Miss., 574 U.S. 10, 11 (2014) (citations 

omitted); see also 5 Arthur R. Miller et al., Fed. Prac. & Proc. Civ. § 1250 (3d ed.) (“If 

the plaintiff’s . . . claim is based upon the ownership of property, it usually is 

sufficient simply to allege the plaintiff’s ownership in the complaint without 

showing how title was acquired.”); see also First Nat. Bank of Boston v. Silberdick, 

146 Vt. 209, 211–12 (1985) (the modern procedural rules “are designed to avoid the 
10

old ‘sporting theory of justice’ and to facilitate decisions on the merits” (citation 

omitted)).

The Amended Complaint is not reasonably read to describe the specific legal 

theory supporting the claimed ROW, to include all legal theories on which Ms. 

Fields may be relying, or to exclude any legal theory in particular. See Vt. R. Civ. P. 

8(f) (“All pleadings shall be so construed as to do substantial justice.”). Rather, Ms. 

Fields clearly asserts ownership of the ROW and leaves precisely how she came to 

have ownership unclear, again, other than citing certain recorded references to the 

ROW and the general circumstances of the properties and conveyances.

In support of his narrow view of the case, Mr. Rubinstein describes the 

“issue” in controversy as follows: “Plaintiff and defendant own abutting land in 

Warren. Six of plaintiff’s seven claims against defendant are based on plaintiff’s 

assertion that it has a deeded right to travel defendant’s land. Plaintiff advances no 

alternative theories, and it is far too late to add [new] ones now. So, the question at 

the heart of this motion is simple: Do deeds substantiate plaintiff’s claimed right-ofway?” Mr. Rubinstein’s Motion for Summary Judgment 2 (filed May 3, 2018, 

footnotes omitted). In a footnote, he adds, “The parties have completed depositions 

and other significant discovery and are scheduled to mediate, all on that premise 

[that Ms. Fields ‘advance[s] no alternative theories’]. Defendants have expended 

considerable time and money conducting discovery and moving for summary 

judgment.” Id. at 2 n.4. Ms. Fields, however, at least on this record, has not 

conceded that point. 
11

Instead, the record is clear that, throughout the litigation, Ms. Fields has 

advanced the position that the history of conveyances is sufficient to support 

judgment as a matter of law in her favor, but she has never done so based purely on 

the language of the deeds. Rather, all such arguments have been contextualized to 

the factual settings of the relevant conveyances, the evident purpose of the 1961 

recorded contract reserving the ROW for the benefit of the mountain parcel, the 

intent of the transacting parties, the history of the relevant parcels, and the 

otherwise landlocked nature of the mountain parcel. While much of that argument 

was not raised in connection with the “deed issue,” she has consistently relied on 

facts outside the scope of deed language, and in her most recent supplementary 

filing she, again, clearly seeks a way of necessity as an alternative basis for the 

ROW. An earlier motion did likewise.

No doubt, in her summary judgment decision, Judge Teachout stated in a 

footnote that “Defendants’ counsel is correct that Plaintiffs have not pleaded a claim 

for an easement by necessity or claimed that the mountain lot is landlocked.” 

Summary Judgment Decision at 5 n.2 (filed August 28, 2019). But, in fact, Ms. 

Fields clearly alleged at paragraphs 31–32 of the Amended Complaint that the 

mountain lot would be landlocked without the claimed ROW. While she did not 

expressly assert necessity (or any other equitable doctrines) as the claimed legal 

basis for the ROW, she did not clearly describe any specific legal theory in support 

of the ROW. And, the facts pleaded are supportive of such alternative bases for 

relief. 
12

In any event, Judge Teachout’s summary judgment decision plainly rejected 

Mr. Rubinstein’s premise that Ms. Fields is limited to locating a legal basis for the 

ROW on the face of the relevant deeds. In denying summary judgment to Mr. 

Rubinstein, she specifically referred to historical and situational facts apart from 

deed language and to legal theories, such as adverse possession, that would not 

appear on the face of a deed. In reference to such non-textual facts and theories, 

she said, “There may well be legal bases to support the Trust’s current ownership of 

the easement right.” Despite Judge Teachout’s ruling, and despite the parties’ 

desire to have the Court reconsider their summary judgment arguments, Mr. 

Rubinstein has never sought or received a ruling from the Court confining Ms. 

Fields’ ownership claim to the express text of the deeds.

The Court has never limited Ms. Fields only to arguing the language of the 

deeds, the pleadings and filings do not suggest that Ms. Fields intended to so limit 

herself, and there has been no clear showing that she waived any nontextual/equitable theories or otherwise should be estopped from relying on any 

suggested by the alleged facts. In keeping with that view, her memoranda 

currently before the Court expressly raise the concept of easement by necessity. 

As a result, on the present record, the Court concludes that Ms. Fields is not 

limited solely to the “deed basis” to support her claim for a ROW.

IV. Propriety of Summary Judgment as to Other Bases for the ROW

As the focus of the parties’ current motions and the stipulation was the “deed 

theory,” little effort was expended with regard to assertions of easement by 
13

necessity or other equitable bases for an easement. Ms. Fields devotes a passing 

argument to the issue of necessity. Other than asserting that Ms. Fields may not 

rely on such theories, Mr. Rubinstein does not engage fully on those topics either. 

The Court has reviewed the record, however, and notes numerous disputed facts in 

connection with such equitable claims. Vt. R. Civ. P. 56(c)(3).

While common ownership may terminate an easement, severance may then 

give rise to one, as in the case of ways of necessity and implied easements. See 

Okemo Mountain, Inc. v. Town of Ludlow, 171 Vt. 201, 206 (2000) (“To obtain a way 

of necessity, one must show that (1) there was a division of commonly owned land, 

and (2) the division resulted in creating a landlocked parcel.”); 3 Tiffany Real Prop. 

§ 790 (3d ed.) (“In order that an easement by implication may thus be created as 

based on a preexisting quasi easement, there must have originally been unity of 

ownership of the dominant and servient estates.”); Jon W. Bruce and James W. Ely, 

Jr., The Law of Easements & Licenses in Land § 4:2 (distinguishing easements of 

necessity from implied easements); contrast Restatement (Third) Property: 

Servitudes § 2.11 (servitudes created by implication) with § 2.15 (servitudes created 

by necessity); see also Restatement (Third) of Property (Servitudes) § 2.11 cmt. e 

(“In most cases, servitudes are implied on the basis of the inferred intent of the 

parties to the conveyance.”); see also Traders, Inc. v. Bartholomew, 142 Vt. 486, 491 

(1983) (distinguishing implication and necessity); Tallarico v. Brett, 137 Vt. 52, 58 
14

(1979) (noting that implication applies where “the conveyance is silent regarding 

the easement”).7

The record of this case includes substantial evidence bearing on a possible 

easement beyond mere deed language in the pivotal conveyance to the Ricketts, 

including evidence of the existence of the ROW on the ground prior to the relevant 

conveyances, deed references to the ROW before and after the relevant conveyances 

following common ownership, that the mountain lot is landlocked without the ROW, 

a lack of evidence of abandonment, the intent of the parties as expressed in the 

recorded 1959 and 1961 contracts, the reassertion of the ROW in the November 1, 

1963 conveyance from the Groves to Northern Vermont Corporation, as well as 

historical usage of the ROW. 

The facts material to theories depending on such extrinsic evidence are not 

undisputed, however. Mr. Rubinstein claims that there is insufficient evidence to 

demonstrate that the mountain parcel would be landlocked without the disputed 

ROW, that the ROW is not or never was identifiable on the ground, that the various 

deed references do not sensibly refer to the same ROW, and he challenges Ms. 

Fields’ portrayal of the intent of various predecessors in interest. Mr. Rubinstein’s 

expert has largely adopted Mr. Rubinstein’s description of the facts on many of 

these issues. Ms. Fields does not challenge Mr. Rubinstein’s expert’s qualifications 

to render professional opinions. Instead, she attempts to undermine those opinions 

7 The Court notes that while the complaint is suggestive of necessity, and Ms. Fields 

has expressly advocated in favor of necessity as an alternative theory, she has not

explicitly asserted other easement theories, such as easement by implication.
15

with the testimony of her own expert, which she believes is far more compelling.8

Such factual disputes are not the stuff of summary judgment. 

In short, both parties are relying on competing expert opinions and 

competing evidentiary inferences in the context of a complex and extremely 

confusing conveyance history, all of which suggests a factual record that is not both 

undisputed and sufficient to support judgment as a matter of law. See Lopez v. 

Concord Gen. Mut. Ins. Grp., 155 Vt. 320, 324 (1990) (even where the facts are 

undisputed, summary judgment must be denied where the record is “inadequate to 

demonstrate whether any party is correct as a matter of law”).

Neither side can be granted judgment as a matter of law under such 

circumstances.

Conclusion

For the foregoing reasons, Mr. Rubinstein’s motion for summary judgment is 

granted, in part, as to the lack of a deeded ROW and is otherwise denied. Ms. 

Fields’ motion for summary judgment is denied.

Counsel and parties are directed to confer with regard to possible next steps. 

The Court continues to encourage attempts to resolve this matter by agreement and 

believes that such an approach holds the best chance to arrive at a firm and lasting 

8 As Ms. Fields portrays it, if Mr. Rubinstein manages to prevail in this case, he will 

have successfully landlocked a parcel that has had functional public highway access 

via the ROW to the frontage lot at least since the 1940s, an outcome obviously at 

odds with the strong policy and “‘social considerations encouraging land use.’” 

Berge v. State, 2006 VT 116, ¶ 11, 181 Vt. 1, 5 (quoting Traders, Inc. v. 

Bartholomew, 142 Vt. 486, 494 (1983)).
16

resolution in as cost-effective a manner as possible. A renewed mediation, in light 

of the Court’s instant ruling, would likely be a worthwhile proposition to consider. 

 

Dated this __ day of July 2020 at Montpelier, Vermont.

_____________________________

Timothy B. Tomasi

Superior Court Judge