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

[The text of this Vermont trial court opinion is un official. It has been reformatted from the original. The accuracy of the text and the accompanying data included in the Vermont trial cou rt 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, 20 04, after a viewon site. On the basis of the evidence presented, a nd 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 declar ation that their land is not burdened with a right-of-way benefitting the la nds of LaVanway to

their north.

2. LaVanway owns a good deal of acreage to the no rth of Rowe. He claims a right-of-way extending northerly from P almer Lane, across the easternmost lands of Rowe and Banschbach, termi nating 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 lang uage:

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 andleading 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.

T O HOLD SAID GRANTED PREMISES WITH THE

APPURTENANCES THEREOF FOREVER

.

(We have used italics to denote what at trial was r eferred to as the “pink” language, boldface to denote what at trial was refe rred 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) la nguage 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 th e 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 ge nerally 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 t o Bortz, a predecessor of Rowe. Bortz knew nothing of any such right of H iggins, apparently believing that if it was not mentioned in his own d eed, it must not exist.

6. Bortz installed a driveway leading to his hous e site on what is now the Rowe land. This driveway proceeded norther ly down the rightof-way at issue from Palmer Lane and then curved we stward toward the house. To construct this driveway, and make it sui table and convenient for automobile passage, Bortz graded the lane in di spute. Where it had been marked by a gully running down its center, Bor tz pushed the earth so as to flatten it. When he got to the point of curv ing, Bortz’s excavator, one Tinker Lamphere, broke through the westerly sto ne wall, probably using some of the stones as base material. Some ad ditional quantity of those stones, from the now destroyed section of wal l, were also placed along the outside of the driveway curve. These wer e 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 t ending to block use of the right-of-way or constitute an act hostile to pa ssage along it. On a subjective level, however, there was no evidence th at Bortz directed his excavator to so place the stones. Nor was there an y evidence that the excavator knew anything of the potential dispute be tween 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, fou nd those stones to interfere with his dispersal of snow. So, with Bor tz’s approval, Clark pushed the stones over the edge of the driveway, do wn into the gully thatmarked 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 l ane and the “Bobby Clark” stones (agreed by Bortz as the irregularly e dged circles).

8. The effect of this driveway has been to create something of a berm, impeding travel along the lane if one is comi ng 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 heig ht comes both from the view by the court and from photos E2 and E3 which s how the berm/driveway behind plaintiffs’ young daughter, wh o appears perhaps three years of age and less than four feet in heigh t. 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 hi s Jeep up the driveway

and onto the lane.

9. The driveway has remained in place well over f ifteen 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 shou ld not be viewed by the objective observer as “Bortz is deliberately blocki ng access along the

lane.”

11. Bortz noted that when he constructed his driv eway, trees along the lane were perhaps 11⁄2 inch saplings, rendering t he way impassable tovehicles. These trees appeared to be natural fores t 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 wa s 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 a s ten acres. Coupled with the fact that only a few large trees a re 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 no t 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 re spective chain to include mention of the right-of-way can have no eff ect on its continued validity. Barrett v. Kunz , 158 Vt. 15, 18 (1992).

C. Mere non-use of the right-of-way does not initia te 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 wi th evidence of an affirmative intent to abandon to extinguish t he 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 mayhave become, that is an irrelevant fact. It only s ignals non-use.

D. We reject plaintiffs’ contention that failure to include words of inheritance in the sentence creating the right-of-w ay renders it a mere personal license of Rufus Brown, which would n ot have survived him or which he could not have conveyed. In interpreting the 1881 deed, it is our duty to ascertain the inte ntion 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 w ords in the habendum showing that a fee was to be conveyed. Bl air v. Blair

, 111 Vt. 53, 57 (1940); Deavitt v. Washington County , 75 Vt. 156, 161 (1903). In this case, words of inheritance wer e 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 appurte nant 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 “appurten ances,” the parties must have intended both easements to be app urtenant to their respective parcels. This is further supporte d by the rule of construction that an easement appurtenant is favore d over one that construes the easement in gross. Scott v. Leonard , 119 Vt. 86, 98 (1956). We conclude that the small caps (purple) l anguage of

Plaintiff’s Exhibit H16 is that instrument’s habend um clause and that the right-of-way or lane must be considered an appurtenance ofthe 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 al ong with it through the chain of title. Restatement of Propert y § 487 cmt. d (1944) (“When once an easement becomes appurtenant to a dominant tenement, the easement follows, unless pre vented 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 easeme nt 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 appurtenanc e thereof, if not specifically excluded.”).

G. When LaVanway’s predecessors, by whose 1881 conv eyance this lane was created, two years later convey the parcel which eventually becomes Rowe and Banschbach’s (plaintiff s’), with language referring to right-of-way here disputed as “the lane running north to said Brown’s land,” the above conc lusions of appurtenance and permanence (interest in fee) are b olstered.

H. To divest the interest of an easement, the holde r of the servient

estate must make clear an intention to work an oust er—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 theright-of-way. This is measured by an objective vie w of the conduct asserted to constitute a hostile act; the subjectiv e intent or belief of the actor (here Bortz) is irrelevant. Pecor Auto S ales, Inc. v. Nesti

, No. 2000-320, slip op. at 2 (Vt. June 29, 2001) (un published 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 r esulting berm, must objectively be considered as just that—a drive way with the berm of earth necessary to support it. Although it may somewhat impede travel along the disputed lane, it is nothin g that a few yards of fill could not remedy. Its purpose, viewed mere ly from the site, rather than from the witness stand, is simply to cr eate a driveway, not to block the dominant estate. Having in mind t hat that the fifteen year period is a statute of limitation, con struction of the driveway would not have put Higgins (predecessor of LaVanway) on notice that Bortz was attempting to oust him fro m his easement. The fact that the stones from the long-standing wal l 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 mani festation 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 wid th, remains an easement appurtenant to the lands of LaVanway.

Dated at Burlington, Vermont, _________________, 2 004.

__________________________ Judge