Macri et. al. v. Cooke’s Letters, Inc., No. 446-9-12 Wmcv (Wesley, J. Jan. 10, 2014). 

[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.] 

VERMONT SUPERIOR COURT 

SUPERIOR COURT CIVIL DIVISION 

Windham Unit Docket No. 446-9-12 Wmcv 

James N. Macri, Jane D. Macri, and 

Saxtons Rivers Partners, Inc. 

d/b/a The Dish on Main. 

Plaintiffs. 

v. 

Cooke’s Letters, Inc., 

Defendant. 

Opinion and Order 

 Denying Defendant’s Motion for Summary Judgment

Background 

 Plaintiffs seek injunctive relief and a declaratory judgment on a right to use a driveway. 

On adjacent improved parcels, Plaintiffs run a non-profit restaurant and Defendant leases 

property to the U.S. Post Office in Saxtons River, Vermont. Plaintiffs’ predecessors used part of 

the driveway and parking owned by Defendant. Recently, Defendant sought to place barriers at 

its property line restricting access, including by Plaintiffs.Plaintiffs assert they are entitled by 

prescriptive easement to full use of the driveway. 

 On May 2, 2013, the Court issued an order denying cross motions for summary 

judgment. The Court noted Defendant was not entitled to summary judgment because 12 V.S.A. 

§ 462 does not protect for-profit entities. The Court also found disputed material facts as to 

whether Defendant had given Plaintiffs’ predecessors permission to use the land. Similarly, the 

Court denied Plaintiffs’ motion for summary judgment because it could not determine if the prior 

use was hostile based on the undisputed facts. 

 

 On July 25, 2013, Defendant filed a second motion for summary judgment. Defendant 

renewed its summary judgment request claiming the undisputed facts show it gave permission to 

Plaintiffs’ predecessors to use the driveway. Defendant now relies on the affidavit of Urbina 

Shatney, the postmaster of the Saxtons River post office from approximately 1980 until 1999, 

who stated she allowed Plaintiffs’ predecessor to remove a fence dividing the properties. She 

states the purpose of removing the fence was to allow larger trucks to travel to Plaintiffs’ 

predecessor’s property. In addition to Ms. Shatney’s affidavit, Defendant has submitted the 

affidavit of Daniel Cooke, the lease between Defendant and the U.S. Post Office, and many 

deeds. Daniel Cooke has provided sworn information about the ownership of Defendant’s 

property and his family’s business records. 
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 On August 26, 2013, Plaintiffs opposed the motion for summary judgment. Plaintiffs 

dispute that the prior use was by permission. To support their argument, Plaintiffs attached a 

deposition from Urbina Shatney and affidavits from Roger Holmes and Michael Furgat. Roger 

Holmes was a driver for Plaintiffs’ predecessor who testified that no fence existed between 1980 

and 1990. Michael Furgat was a resident of Saxtons River who swears details about the 

historical use of Defendant’s property and the absence of any collisions along the driveway. The 

deposition testimony of Urbina Shatney is arguable at odds with statements in her affidavit on 

which Defendant now relies. 

On September 9, 2013, Defendant responded to Plaintiff’s opposition. In this response, 

Defendant raised a new legal argument. Defendant argued the use of the land was presumptively 

permissive because it was open to the public. On September 17, 2013, Plaintiffs filed a motion to 

file a surreply, and a surreply, in order to address Defendant’s new argument. Plaintiffs further 

emphasized their position that disputed facts preclude any conclusions as a matter of law as to 

whether the driveway has been used by permission during portions of the relevant period 

necessary to establish an easement by prescription.1

Standard of Review 

The Court grants summary judgment “if the movant shows that there is no genuine 

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” 

V.R.C.P. 56(a). The Court makes all reasonable inferences and resolves all doubts in favor of the 

non-moving party. Lamay v. State, 2012 VT 49, ¶ 6, 191 Vt. 635. Nevertheless, the non-moving 

party cannot rely solely on the pleadings to rebut credible evidence. Boulton v. CLD Consulting 

Eng’rs, Inc., 2003 VT 72, ¶ 5, 175 Vt. 413. 

Discussion 

1. Use of the Driveway through Actual Permission 

Defendant insists it is entitled to summary judgment claiming no dispute that Plaintiffs’ 

predecessors used the driveway by permission. “To successfully claim an easement through 

prescription, there must be open, notorious, continuous and hostile use of a right-of-way for 

fifteen years.” Wells v. Rouleau, 2008 VT 57, ¶ 8, 184 Vt. 536; see also 12 V.S.A. § 501 (setting 

fifteen years as the statutory period). Open and notorious use is presumed hostile. Wells, 2008 

VT 57, ¶ 8. As indicated in the Court’s May 2, 2013 order, permission can defeat the hostility 

requirement. Further, permission may be granted through implication. On the other hand, 

removal of a barrier “is not conclusive evidence” of permission. Id. ¶ 16. 

There still are disputed material facts about whether Defendant gave Plaintiffs’ 

predecessors permission to use the driveway. Ms. Shatney swears in her affidavit that she 

allowed Plaintiffs’ predecessor to remove a fence to gain broader access to the driveway. On the 

 

1

 While provision for a surreply is not explicit in V.R.C.P.56, the Court concludes that there is no serious doubt as 

to its discretion to allow it. The facts here well illustrate the need for such discretion, in order to allow a party to 

respond to new issues raised in the memorandum in opposition. See, e.g. New England Youth Theatre, Inc. v. Envt’l

Compliance Servs., 128-4-12 Wmcv, 2013 WL 1866895 (Vt. Super. Ct. Feb. 26, 2013) (Carroll, J.) 
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other hand, her deposition also indicated that she considered the fence to be a safety hazard. Ms. 

Shatney’s deposition testimony also indicates, at least when read in the light most favorable to 

Plaintiffs, some question as to her intent to give the broad permission claimed by Defendant. 

Plaintiffs also presented affidavits that indicated there was neither a fence nor a safety hazard. 

Additionally, removal of a barrier alone is not enough to show permission. See id. Review of the 

conflicting testimony indicates that there is a disputed material fact as to whether Defendant gave 

Plaintiffs’ predecessors permission. See Lamay, 2012 VT 49, ¶ 6.

2. Permission through Public Use 

Defendant’s argument that permission must be inferred because the driveway was open to 

the public as part of the U.S. Post Office is no better established than its claim of actual 

permission. To support its argument, Defendant cites Greenberg v. Hawden. 145 Vt. 112, 115 

(1984). 

wherever the owner of land throws it open to the public to pass and repass on in 

connection with the use to which he appropriates it, the mere use of the land by an 

adjoining proprietor for a way to his own premises, though that use is 

uninterrupted, open and notorious, will be presumed to be with the permission of 

the proprietor, and will not be presumed to be adverse to the owner.... 

Id. (quoting Plimpton v. Converse, 44 Vt. 158 (1871)). 

These cases stand for the proposition that facts from which public use might be found 

justify a jury instruction as to a presumption of permission, assuming the jury finds that such 

facts have been established. Greenberg a 114-15, Plimpton at 165-66. Conceivably there are 

facts here which also will implicate the presumption. Yet, as already explained, those facts are 

not undisputed on the current record. Indeed, Plaintiff has adduced evidence that the U.S. Post 

Office had attempted to stop customers of Plaintiffs’ predecessor from parking in the lot. 

The application of the presumption is therefore a factual question that does not resolve this 

motion for summary judgment. 

Community Feed Store, Inc. v. Northeastern Culver Corp. also shows the limits of 

Defendant’s argument. See 151 Vt. 152, 159–60 (1989). In Community Feed Store, the plaintiff 

operated an animal feed store. Id. at 153–54. The defendant owned a gravel area that the 

plaintiff’s customers used for decades. Id. at 154. Plaintiff claimed a prescriptive easement over 

the gravel area. See id. at 155–56. The defendant argued for permission based on public use. Id.

at 160. The Vermont Supreme Court found that the case did not involve the “generalized public 

use” required to invoke the presumption of permission. Id.; see also Begin v. Barone, 124 Vt. 

421, 423 (1965) (discussing the correct application of permission through public use). 

 In this case, there is a factual dispute about whether Defendant gave Plaintiff’s 

predecessors permission. At least for the purpose of a motion for summary judgment, it is 

unclear if use of the driveway was open to the general public. See Cmty. Feed Store, 151 Vt. at 

160. Defendant will have to show sufficient facts at trial for the presumption to operate. See 

Plimpton, 44 Vt. at 165–66. Therefore, the Court cannot grant Defendant’s motion for summary 
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judgment based on the claim of permission implied from public use. See Cmty. Feed Store, 151 

Vt. at 160.

Order

WHEREFORE it is hereby ORDERED: The Court DENIES Defendant’s motion for 

summary judgment. The case will be set for a one day trial as soon as the docket allows. 

Dated at Newfane, Vermont on January 10, 2014. 

 

 John P. Wesley 

 Superior Court Judge