Noble v. Kalanges, No. 878-03 Cncv (Katz, J., Aug. 31, 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. 878-03 CnCv 

NOBLE 

v. 

KALANGES 

 ENTRY 

 Some of the plaintiffs in this action bought homes in the 

Countryside subdivision of the Essex Housing Partnership around 1985 

and after. The plat setting out their homesites had been approved by the 

Essex Planning Commission in May 1984, and was presumably recorded 
soon thereafter. It depicted a parcel on the west side of the subdivision, 

consisting of about 13.8 acres, as “RESERVED ELEMENTARY 

SCHOOL SITE.” Individual homesite deeds all reference the plat. Some 

Countryside homeowners now seek to enjoin development of that 

“elementary school site” by defendant. 

 Immediately to the south of Countryside lies another residential 

development, Essex Park. Originally, the two were commonly owned by 

Essex Housing Partnership. Within the Essex Park development a 

“COMMON OPEN SPACE” parcel was designated, which is apparently 

20 acres. The two undeveloped parcels, together, exceeded the open 

space zoning requirements Essex Junction had for both subdivisions at the 

time they were created. In 1985, the common grantor Essex Housing 

Partnership deeded the elementary school site to the school district and 

included the following language in its conveyance: 

If, at any time, Grantee [the school district], its successors or 

assigns, shall exercise its option to purchase another parcel of 

land, said parcel being known and referenced as “Essex Park 

Common Open Space” in accordance with the terms and

conditions of a Purchase Option dated 2/7/85 . . . the lands and 

premises conveyed herein [the reserved school site] shall revert 

to the Grantor [Essex Housing Partnership], its successors and 

assigns, subject to the restriction, however, that said lands and 

premises shall be forever reserved as common open space for the 

benefit of the Essex Park Condominium Regimes.

 The purchase option referenced in this deed was executed and 

recorded the same day. It contained recitation of the parties’ intent for the 

20 acre common open space parcel which including the “school district 

wish[] to have the option of selecting one of two sites for future school 

construction.” It also contained the following condition: 
This grant shall revert back to the Owner [Essex Housing 

Partnership] and be forever null and void if either of the 

following two circumstances should occur: a)Within five years 

after the completion of the above-mentioned subdivision known 

as Country Side in the Village, the School District has not 

commenced construction of an elementary school building to be 

used for instructional purposes upon the Essex Park Common 

Open Space; or b) The School District commences construction 

of an elementary school building to be used for instructional 

purposes upon the school site [reserved school site] it obtained 

from Owner by the 2/7/85 Warranty Deed above referenced. In 

case of reversion under either a or b, said Common Open Space 

shall forever remain Common Open Space as is currently 

required.

Beyond this restriction, the option defined the term “completion” and how 

notice of it was to be given. It also dictated that the school district would 

show its intent to exercise the option by notice to Essex Housing 

Partnership and receipt of a warranty deed, which the school district and 

Essex Housing Partnership exchanged in 1992. 

 In the end, the school district chose neither site, deeded its rights in 

both properties back to the developers, who then conveyed the elementary 

school site to defendant. In 1995, Essex Housing Partnership completed 

the Countryside subdivision as defined in the deeds and purchase option. 

Defendant has now built a house on the school site and plans to construct 

several others. The Essex Park “common open space” remains 

undeveloped. At least this defendant, who does not own it, asserts that it 

is truly permanent open space. These appear to be the relevant facts. 

Both sides seek summary judgment. 
Implied Open Space Easement from 1985 Plat

 Plaintiffs’ first argument is that since their deeds reference the 

1985 plat that marked the 13.8 acre site as a “reserved elementary school 

site,” it created an implied easement. In Vermont, an easement or 

servitude can arise by a deed’s reference to a plat marking out certain 

roads, parks, or similar public uses, even when the deed makes no explicit 

reference to the right to such features. Clearwater Realty Co. v. 

Bouchard, 146 Vt. 359, 363–64 (1985); see also 4 J. Backman, Powell on 

Real Property § 34.06 (1999). Such easements are created because the 

plat’s physical descriptions are in essence incorporated into the deed and 

promised to the individual buyers, and the court presumes, without the 

need for actual proof, that the sellers intended and the buyers understood 

the subdivision property to have such features. Thus, when the purchasers 

in Clearwater bought their Lake Champlain property, they received a deed 

in their chain of title that referenced a 1945 plat showing a beach-access 

easement 25 feet wide. 146 Vt. at 363. Even though there was no proof 

that purchasers relied or even saw this plat when they bought the property 

in 1982, the right to the 25-foot easement had been acquired by the 

original purchaser and passed down through their predecessors in title. 

This method of establishing such rights goes beyond mere right of ways or 

other easements that touch or directly affect a certain parcel. As 

enunciated by the Court, purchasers acquire a right to “all roads, streets, 

parks, and other designated ways shown on the plat map unless a contrary 

intent is affirmatively shown.” Id. at 364. This is known as the “broad” 

or “unity” rule of easements implied by reference. Lalonde v. Renaud, 

157 Vt. 281, 283–83 (1989). 

 The question raised by plaintiff’s assertion is whether a “reserved 
elementary school site” in a plat creates the same kind of third party 

easement rights that a right of way, a street, or a park would. In Lalonde, 

the Vermont Supreme Court reaffirmed the principle of Clearwater and 

expanded its holding, at least in part, to parks. Id. at 284. But, a school 

site is not a park, a road, or similar public use. If anything, it resembles 

more of a public dedication since it assigns land to a narrow use which 

will benefit the public but have varying effects on immediately adjacent 

property. Schools will tend to be magnets for traffic and youthful 

disportment. Further they inherently require a very large capital 

investment to construct. Hence they are uncertain in both outcome and 

effect. Parks, by contrast, will normally see far less concentrated use, do 

not depend on the large public investment, and are almost universally seen 

as an amenity by neighbors. Compare id. (“There is no doubt that the 

character of the neighborhood will be adversely affected should the park 

be no more.”), with 68 Am. Jur.2d Schools § 82 (“Land dedicated for 

school purposes may revert to the grantor or dedicator where the purposes 

of the dedication fail or the land is used for other purposes.”). The 

difference is important because while the two are not mutually exclusive 

or dependent, they embody different rights. 3 H. Tiffany, The Law of 

Real Property § 800, at 312–13 (3d ed. 1939 & 2003 Supp.). 

 An easement for benefits derived by reference to a plat is a private 

right that only requires plaintiffs to demonstrate, as in this case, that their 

property references the plat. Id. This right is essentially a legal construct 

in that it does not require actual proof that purchasers relied upon the plat 

and presumes the seller/developer intended to give them such rights. 

Clearwater, 146 Vt. at 364. Lalonde and Clearwater, however, suggest 

this construct has two limitations. The first is clear, affirmative evidence 

(such as a statement on the plat to the effect) of the seller’s intent not to 
give such rights to future purchasers. Id. The second, suggested in 

Lalonde, is that the right to an implied easement may waiver or be 

affected by its subject matter. Lalonde, 157 Vt. at 284 n.2 (citing Tesson 

v. Porter Co., 86 A. 278 (Pa. 1913) (“broad” view subject to exception 

where municipality vacates)). While easements by reference have been 

recognized for streets, right of ways, parks, open space, sewers, and 

bayous, see generally Restatement (Third) of Property § 2.13 (2000), 

courts have not been as uniform for more “extensive” rights. Compare 

Ute Park Summer Homes Ass'n v. Maxwell Land Grant Co., 427 P.2d 

249, 251–52 (N.M.1967) (granting easement by reference to plat to areas 

designated as park, club house, golf course, and tennis courts) , with 

Crystal Lakes Condo. Clubhouse Unit Ass’n v. Smith, 1997 WL 154104, 

at *3 (9th Cir.) (Rejecting plaintiffs’ claim for an easement by reference to 

a clubhouse and golf course). The rationale behind this appears to have 

two sources. With the rise of planned communities and subdivisions that 

sell homes as they are constructed, there seems to be a concern with 

sellers who promise more than they intend to deliver.?? This is apparent in 

the Ute Park case, where the court emphasized the developer’s extensive 

use of the plat in brochures to promote and sell lots. 427 P.2d at 251. 

Simultaneously, courts also tend to disfavor finding implied easements 

 

1

 This kind of bait-and-switch tactic to sell lots was employed in a 

slightly different manner at the Forest Lawn Cemetery in Glendale, California, 

satirized in Evelyn Waugh’s novella, The Loved One. As the cemetery 

expanded, salesmen would take prospective customers to the lots and promote 

the views, beautiful trees, and the reproduction of Michelangelo’s “Moses” that 

would watch lovingly over their dearly departed for eternity. Of course, once 

the lots in that section were sold, a forklift would come in and take Moses to the 

next expansion. The practice earned the reproduction the moniker “movable 

Moses.” 
because they burden estates and “retard building and progress.” 25 Am. 

Jur.2d Easements and Licenses § 23 (1996). Together, these rationales 

have caused courts to look cautiously at more complex claims for 

easements by reference when the asserted right looks less like a private 

right to a road or open space and more like a public right to a dedicated 

purpose, such as a school site, cemetery, or recreational facility. See 

Lalonde, 157 Vt. at 284 (indicating that a private right to parks or other 

open space might be subject to the “beneficial enjoyment” rule); see also 

Annot., Conveyance of Lot with Reference to Map or Plat as Giving 

Purchaser Rights in Indicated Streets, Alleys, or Areas Not Abutting His 

Lot, 7 A.L.R.2d 604, at §§ 11–15 (1949 & 2004 Supp.) (“. . . in some 

cases . . . a grantee to whom a conveyance is made by reference to a map 

or plat upon which parks or other open areas are delineated acquires a 

private right of user in such parks, etc. . . . where such area is ‘necessary’ 

to the enjoyment of his premises.”). In such cases, the facts become 

controlling and evidence, such as the vacating of the “dedicated” 

municipal purpose, the fact that purchasers are still able to enjoy the use 

of their lots, and the lack of evidence that seller used the plat as a tool to 

sell the lots, will determine if an easement by reference exists. Bacon v. 

Onset Bay Grove Ass’n, 136 NE 813 (Mass. 1922). 

 In this respect, our analysis of plaintiff’s claim resembles more of 

an equitable evaluation. See Crabbe v. Veve, 150 Vt. 53, 55–56 (1988). 

Given that implied easements are disfavored, that enforcing the right 

would create a particularly heavy burden to run with the land, and for a 

purpose that has been disavowed by the very party intended, it is difficult 

to see how plaintiffs would have a right to the reserved school site parcel 

merely because it was part of the plat referenced in their deeds. Plaintiff’s 

attempt to sidestep this analysis is to argue that they do not want the 
parcel to remain a school site but rather that the right they seek is open 

space. Essentially their argument is that 13.8 acres was far too big a site 

for a school building, so it inherently implies that there would be open 

space in the form of parks, playgrounds, and undeveloped land. It is this 

land that plaintiffs argue they have a right to through an easement by 

reference. Beguiling as this argument may be to those of us who 

remember elementary schools surrounded by acres of open fields of corn, 

baseball diamonds, soccer fields, and tennis courts, the plaintiffs’ are 

essentially urging an implied description to support an implied easement. 

Such double implication is too far afield. An implied easement has to 

have some definite description, whether it be “clubhouse” or “open 

space.” We cannot presume that such descriptions would necessarily 

include “chilled water fountain” or “maple tree,” simply because most 

clubhouses have a chilled water fountain and most open fields have at 

least one maple tree. We decline to read implied features into a legal 

construct that is already based upon generalities and policy and a plat 

feature that necessarily presupposes municipal support. 

Open Space Equitable Servitude from 1985 Deed

 

 Unlike plaintiffs’ first argument, their second is premised on the 

words of the 1985 deed and their alleged intent and effect. As a matter of 

contract interpretation, absent ambiguity, we will interpret the contract as 

a matter of law. Luneau v. Peerless Ins. Co., 170 Vt. 442, 445 (2000). 

Plaintiffs argue that the 1985 deed contained a reversion clause, which 

would cause the school site to return to Essex Housing Partnership—to be 

held forever as open space—if the School District exercised its purchase 

option over the 20 acre open space parcel. By receiving a warranty deed 

in 1992 for the 20 acres, plaintiffs argue the School District exercised its 

purchase option and thereby caused the school site to revert to Essex 

Housing Partnership under an open space equitable servitude. Setting 

aside defendant’s arguments concerning the chain of title for this deed, we 

disagree with plaintiffs’ conclusion. An option contract is not an 

agreement but rather a “continuing offer by one to sell and convey within 
the time and upon the conditions stated.” 77 Am. Jur. 2d Vendor and 

Purchaser § 35 (1997). 

 In this case, one of the conditions of the purchase option was that 

the School District build a school building on the property within five 

years of Countryside’s completion. The fact that the parties exchanged 

deeds acknowledged that the School District intended to exercise its 

option, but the building term remained unfulfilled. Thus, the School 

District took possession of the property, but it did not take in accordance 

with the option’s original terms. Moreover, the School District returned 

the parcel in 1995 before it could exercise the terms of the purchase 

option. The importance of this building term is made clear on the first 

page of the option contract, where the parties note that their intention in 

making the option is to give the School District a choice in where to build 

the school, between the 13.8 acre and the 20 acre parcels. Thus, the whole 

point of the purchase option in conjunction with the 1985 deed for the 

school site was to provide the School District with one school site while 

reserving one open space. The fact that the School District walked away 

from both parcels does not change this effect and intent. Therefore, we 

conclude that the reversion clause in the school site deed was not triggered 

by the 1992 transfer of title for the 20-acre parcel and that plaintiffs’ 

equitable servitude, if it would arise from the deed, was not kindled. 

 Based on the foregoing, defendant’s motion for summary judgment 

is granted. Plaintiffs’ motion is denied. Defendant should submit a 

proposed declaratory judgment, suitable for recording. 

 Dated at Burlington, Vermont, _________________, 2004. 
__________________________ 

Judge