Rowe v. Lavanway, No. 1159-02 CnC (Katz, J., Sep. 22, 2004) 

[The text of this Vermont trial court opinion is unofficial. It has been 

reformatted from the original. The accuracy of the text and the 

accompanying data included in the Vermont trial court opinion database is 

not guaranteed.] 

STATE OF VERMONT SUPERIOR COURT 

Chittenden County, ss.: Docket No. 1159-02 CnCv 

ROWE 

v. 

LAVANWAY 

 FINDINGS OF FACT, 

 CONCLUSIONS OF LAW AND 

 NOTICE OF DECISION 

 This matter was tried to the court September 1, 2004, after a view 
on site. On the basis of the evidence presented, and the view where 

indicated, the following decision is announced. 

 FINDINGS OF FACT 

 1. Plaintiffs Rowe and Banschbach own land and a home 

alongside Palmer Lane, Jericho. They seek a declaration that their land is 

not burdened with a right-of-way benefitting the lands of LaVanway to 

their north. 

 2. LaVanway owns a good deal of acreage to the north of Rowe. 

He claims a right-of-way extending northerly from Palmer Lane, across 

the easternmost lands of Rowe and Banschbach, terminating at and 

affording access to his meadow. 

 3. LaVanway’s chain of title includes a deed from 1881, Eastman 

and Nutting to Brown, containing the following language: 

Said Brown his heirs or assigns are forever to 

have the right to pass through other lands now 

owned by said Eastman and Nutting in the 

lane as it now is in passing to and from the 

land hereby conveyed to said Brown for all 

purposes whatever. 

* * * 

We also hereby mean to convey to the said 

Brown the lane about thirty-feet wide on 

the southeasterly side of the land now 

occupied by Levi Nutting as a pasture and 
leading to land now and heretofore owned 

by said Brown, and bounded on the 

southeasterly side by land now belonging to 

Harmon Sherman’s Estate. Said Brown 

agrees to put up all bars in the lane in 

passing to and from the land hereby 

conveyed. 

 TO HOLD SAID GRANTED PREMISES WITH THE 

APPURTENANCES THEREOF FOREVER. 

(We have used italics to denote what at trial was referred to as the “pink” 

language, boldface to denote what at trial was referred to as the “yellow,” 

and small caps to denote what at trial was referred to as the “purple.”) 

 4. We are persuaded that the boldface (yellow) language just 

quoted constitutes the description and grant of the lane at issue in this 

case. 

 Rowe’s chain of title includes a deed from 1883, Eastman to Nutting, 

which describes the parcel therein conveyed with the following language: 

. . . bounded north by land of Rugus Brown, 

east by the lane running north to said Brown’s 

land . . . . 

 Many years ago, crude stone walls were erected generally along either 

side of the lane. The interior width between those parallel walls is about 

22 feet, sometimes less. 
 5. LaVanway’s predecessor in title, one Higgins, maintained he 

enjoyed the right-of-way, and expressed that view to Bortz, a predecessor 

of Rowe. Bortz knew nothing of any such right of Higgins, apparently 

believing that if it was not mentioned in his own deed, it must not exist. 

 6. Bortz installed a driveway leading to his house site on what is 

now the Rowe land. This driveway proceeded northerly down the rightof-way at issue from Palmer Lane and then curved westward toward the 

house. To construct this driveway, and make it suitable and convenient 

for automobile passage, Bortz graded the lane in dispute. Where it had 

been marked by a gully running down its center, Bortz pushed the earth so 

as to flatten it. When he got to the point of curving, Bortz’s excavator, 

one Tinker Lamphere, broke through the westerly stone wall, probably 

using some of the stones as base material. Some additional quantity of 

those stones, from the now destroyed section of wall, were also placed 

along the outside of the driveway curve. These were depicted by Bortz in 

his “plan view” drawing made on the witness stand. Court’s Exhibit 1. 

As so depicted, they might have had the effect of tending to block use of 

the right-of-way or constitute an act hostile to passage along it. On a 

subjective level, however, there was no evidence that Bortz directed his 

excavator to so place the stones. Nor was there any evidence that the 

excavator knew anything of the potential dispute between Bortz and 

Higgins regarding the right-of-way. 

 7. More significantly, those stones did not last very long in that 

position. Bortz’s snowplower, one Bobby Clark, found those stones to 

interfere with his dispersal of snow. So, with Bortz’s approval, Clark 

pushed the stones over the edge of the driveway, down into the gully that 
marked the continuation of the disputed lane. This is shown on the 

“section view” drawing, Court’s Exhibit 2, accepted by Bortz on the 

witness stand and annotated by him to indicate both the “break” in the 

stone wall where the driveway proceeds out of the lane and the “Bobby 

Clark” stones (agreed by Bortz as the irregularly edged circles). 

 8. The effect of this driveway has been to create something of a 

berm, impeding travel along the lane if one is coming from the LaVanway 

lands to the north, and requiring a drop of perhaps three feet if one comes 

from the south, Palmer Lane. This estimate of height comes both from the 

view by the court and from photos E2 and E3 which show the 

berm/driveway behind plaintiffs’ young daughter, who appears perhaps 

three years of age and less than four feet in height. Although the driveway 

and berm may constitute something of an impediment to ordinary auto 

travel, we are not persuaded that it would block a four-wheel drive 

vehicle; indeed LaVanway testified that he drove his Jeep up the driveway 

and onto the lane. 

 9. The driveway has remained in place well over fifteen years, 

perhaps more than 30. 

 10. The visual effect of the driveway and berm is precisely that—a 

level driveway and sloping base necessary to create it from material found 

on the site. That visual effect would not and should not be viewed by the 

objective observer as “Bortz is deliberately blocking access along the 

lane.” 

 11. Bortz noted that when he constructed his driveway, trees along 

the lane were perhaps 11⁄2 inch saplings, rendering the way impassable to 
vehicles. These trees appeared to be natural forest growth and not the 

result of any purposeful planting by people. Such a situation implies nonuse; it also implies fairly recent non-use, as the growth, at the time, was 

new. 

 12. The northern terminus of the disputed lane was long marked by 

barbed wire. But this was part of the enclosure of a significant portion of 

what is now the LaVanway meadow, perhaps as large as ten acres. 

Coupled with the fact that only a few large trees are located along the lane 

and that even 30 years ago Higgins claimed a right to pass along the lane, 

hence that the lane continued to be used, we are not persuaded this barbed 

wire ever actually prevented access nor would have been viewed as 

having that purpose. 

 CONCLUSIONS OF LAW 

A. Creation of the right-of-way by the 1881 deed is supported by a 

preponderance of the evidence. 

B. Mere failure of subsequent grantees in either respective chain to 

include mention of the right-of-way can have no effect on its 

continued validity. Barrett v. Kunz, 158 Vt. 15, 18 (1992). 

C. Mere non-use of the right-of-way does not initiate any loss of the 

right. County of Addison v. Blackmer, 101 Vt. 384, 391 (1928). 

When created by a grant, non-use must be coupled with evidence 

of an affirmative intent to abandon to extinguish the easement. 

Annot. Loss of Private Easement by Nonuse, 62 A.L.R.5th 219, at 

§ 3 (1998). Hence, no matter how large or numerous the trees may 
have become, that is an irrelevant fact. It only signals non-use. 

D. We reject plaintiffs’ contention that failure to include words of 

inheritance in the sentence creating the right-of-way renders it a 

mere personal license of Rufus Brown, which would not have 

survived him or which he could not have conveyed. In interpreting 

the 1881 deed, it is our duty to ascertain the intention of the parties 

to it, as best we can. Blackmer, 101 Vt. at 389; Blanchard v. 

Morey, 56 Vt. 170, 174 (1883). The absence of words of 

inheritance in the granting clause is overcome by words in the 

habendum showing that a fee was to be conveyed. Blair v. Blair, 

111 Vt. 53, 57 (1940); Deavitt v. Washington County, 75 Vt. 156, 

161 (1903). In this case, words of inheritance were not used in the 

habendum either, but the word “appurtenances” is. There are only 

two possible appurtenant easements in the deed, the italicized 

(pink) language and the bold (yellow). Both create easements and 

each satisfies the criteria for an easement appurtenant because they 

serve a parcel of land, providing access to it over the servient lands 

of the grantors, and this benefit only ran to Brown, personally, so 

long as he owned the dominant parcels. Barrett, 158 Vt. at 18. 

E. Therefore, to give meaning to the word “appurtenances,” the 

parties must have intended both easements to be appurtenant to 

their respective parcels. This is further supported by the rule of 

construction that an easement appurtenant is favored over one that 

construes the easement in gross. Scott v. Leonard, 119 Vt. 86, 98 

(1956). We conclude that the small caps (purple) language of 

Plaintiff’s Exhibit H16 is that instrument’s habendum clause and 

that the right-of-way or lane must be considered an appurtenance of 
the parcel for which it provides ingress and egress. 

F. As an easement appurtenant without any specific restrictions, the 

right-of-way attached to the dominant land, in this case fee simple 

parcel from Eastman and Nutting, and transferred along with it 

through the chain of title. Restatement of Property § 487 cmt. d 

(1944) (“When once an easement becomes appurtenant to a 

dominant tenement, the easement follows, unless prevented by the 

manner or terms of its creation, the possession of the dominant 

tenement.”); id. at cmt. c (“It can rarely happen that anything in the 

manner of the creation by prescription of an easement appurtenant 

will prevent it from passing with the possession of the dominant 

tenement as an appurtenance thereof.”); see also 4 R. Powell & P. 

Rohan, Powell on Real Property §34.15 (1999) (“. . . it 

accompanies the dominant tenement as an appurtenance thereof, if 

not specifically excluded.”). 

G. When LaVanway’s predecessors, by whose 1881 conveyance this 

lane was created, two years later convey the parcel which 

eventually becomes Rowe and Banschbach’s (plaintiffs’), with 

language referring to right-of-way here disputed as “the lane 

running north to said Brown’s land,” the above conclusions of 

appurtenance and permanence (interest in fee) are bolstered. 

H. To divest the interest of an easement, the holder of the servient 

estate must make clear an intention to work an ouster—in the 

words of the cases must unfurl the flag in a manner which is 

notorious as well as hostile. Darling v. Ennis, 138 Vt. 311, 313–14 

(1980). It must consist of a clear and affirmative blocking of the 
right-of-way. This is measured by an objective view of the conduct 

asserted to constitute a hostile act; the subjective intent or belief of 

the actor (here Bortz) is irrelevant. Pecor Auto Sales, Inc. v. Nesti, 

No. 2000-320, slip op. at 2 (Vt. June 29, 2001) (unpublished 

mem.), citing Russell v. Pare, 132 Vt. 397, 404 (1974); Hilliker v. 

Husband, 132 Vt. 566 (1974); Cardenas v. Kurpjuweit, 779 P.2d 

414, 417 (Idaho 1989); Porter v. Schaffer, 728 A.2d 755, 774 (Md. 

1999); Otto v. Cornell, 349 N.W. 2d 703, 705 (Wis. Ct. App. 

1984). Here, the driveway construction, with its resulting berm, 

must objectively be considered as just that—a driveway with the 

berm of earth necessary to support it. Although it may somewhat 

impede travel along the disputed lane, it is nothing that a few yards 

of fill could not remedy. Its purpose, viewed merely from the site, 

rather than from the witness stand, is simply to create a driveway, 

not to block the dominant estate. Having in mind that that the 

fifteen year period is a statute of limitation, construction of the 

driveway would not have put Higgins (predecessor of LaVanway) 

on notice that Bortz was attempting to oust him from his easement. 

The fact that the stones from the long-standing wall were placed 

first by excavator Lamphere and next by snowplower Clark at their 

own behest, rather than by instruction of Bortz, is interesting, but 

actually irrelevant. It must be the objective manifestation of ouster 

which controls. Here that is insufficient. 

I. There was no limitation on the grantee’s use in the 1881 instrument 

creating the right-of-way. None should be imported because the 

passage of time has seen the replacement of horses by automobiles 

and, sadly, cows by ATVs. Skow v. Goforth, 618 N.W.2d 275, 

278 (Iowa 2000); Hodgkins v. Bianchini, 80 N.E.2d 464, 467 
(Mass. 1948); Swensen v. Marino, 29 N.E.2d 15, 18 (Mass 1940) 

(“We should be very slow to hold that even ancient rights of way, 

not expressly restricted as to the type of vehicle . . . could not be 

employed at all for the means of transportation in common use by a 

succeeding generation.”). 

 NOTICE OF DECISION 

 We therefore expect to enter a judgment, suitable for recording, 

declaring that the lane in question, 30 feet in width, remains an easement 

appurtenant to the lands of LaVanway. 

 

 Dated at Burlington, Vermont, _________________, 2004. 

__________________________ 

Judge