Henselder v. Town of Castleton, No. 556-7-08 Rdcv ( Cohen, J., Feb. 12, 2010) [The text of this Vermont trial court opinion is un official. It has been reformatted from the origina l. The accuracy of the text and the accompanying data included in the Vermont trial cou rt opinion database is not guaranteed.] STATE OF VERMONT RUTLAND COUNTY ) ROBERT C. HENSELDER and ) Rutland Superior Court CHERIE P. HENSELDER, ) Docket No. 556-7-08 Rdcv ) Plaintiffs, ) ) v. ) ) TOWN OF CASTLETON, ) ) Defendant )

DECISION ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT , FILED JUNE 29, 2009 Robert and Cherie Henselder brought this action al leging that the Town of Castleton’s reassignment of their dock space at Lak e Bomoseen violated their property rights. The Town of Castleton moves for summary jud gment, arguing that the Henselders did not possess their original dock space by a deed ed property right, but rather a revocable license. The plaintiffs Robert and Cherie Henselder are represented by Christopher H. Howe, Esq. The defendant Town of Cas tleton is represented by John S. Liccardi, Esq. 

### SUMMARY JUDGMENT STANDARD Summary judgment is appropriate where there is no genuine issue of material fact and the party is entitled to judgment as a matter o f law. V.R.C.P. 56(c)(3). In response to an appropriate motion, judgment must be rendered "i f the pleadings, depositions, answers to interrogatories, and admissions on file, togethe r with the affidavits, if any, ... show that there is no genuine issue as to any material fact a nd that any party is entitled to judgment as a matter of law." V.R.C.P. 56(c)(3). In determin ing whether a genuine issue of2

material fact exists, the court accepts as true all egations made in opposition to the motion for summary judgment, provided they are supported b y evidentiary material. Robertson v. Mylan Labs , Inc., 2004 VT 15, ¶ 15, 176 Vt. 356. The nonmoving party then receives the benefit of all reasonable doubts and inferences ari sing from those facts. Woolaver v.
State , 2003 VT 71, ¶ 2, 175 Vt. 397. Furthermore, where, as here, "the moving party does not bear the burden of persuasion at trial, it may satisfy its burden of production by showing the court that there is an absence of evide nce in the record to support the nonmoving party's case. The burden then shifts to t he nonmoving party to persuade the court that there is a triable issue of fact." Ross v. Times Mirror, Inc., 164 Vt. 13, 18 (1995) (internal citations omitted). 

### BACKGROUND Robert and Cherie Henselder own property in the “C rystal Haven” development in Castleton, Vermont, near Lake Bomoseen. They are successors in interest to the same land and premises originally conveyed by the Castle ton Development Commission to Martin and Margaret Johnson in 1963. The property c hanged owners multiple times, until the Henselders purchased the property from Kenneth and Carolann Hill in August 2005. The deed from the Hills to the Henselders contained the following clauses:

Reference is further made to a [sic] Agreement for Dock Space between the Town of Castleton and Rita Heald dated November 5, 1986, wherein said documents set forth, “When lot is resold, the dock space automatically g oes to the new owner.” The dock space assigned number is 5 67- 568. (The dock is not to exceed 4 ft. x 12 ft.) The right to dock space and any dock existing on th e space at the date of this closing is conveyed to the gran tee herein by this instrument.3

These clauses did not appear in the original conve yance from the Castleton Development Commission to the Johnsons in 1963. At no time after that original conveyance did the Commission or the Town of Castle ton (as successor in interest to the Commission) convey to any of the Henselder’s predec essors in title any further property interest in the premises or in the surrounding Crys tal Haven Development, whether by deed, easement or any instrument. The only instrume nt from the Town of Castleton pertaining to dock space is a document entitled “Ag reement for Dock Space.” The Henselders signed an “Agreement for Dock Space” with the Town of Castleton on July 7, 2006. The agreement sets forth that the Henselders are the owners of a certain lot and that lot owner “hereby wishes per mission to erect a dock on the shore of Lake Bomoseen within the Crystal Haven area. Dock S pace # 567-568.” The agreement

states: The Town hereby permits and licenses the Lot Owner to

erect and maintain a dock on the shore of Lake Bomo seen with in the Crystal Haven area at a location and of a size to be designated in writing by the Town and to go to a nd from such dock over such land, road or path, as is likew ise designated by the Town. The agreements further states: “This license is not transferable and the Town may by notice in writing cancel this license upon one m onth’s notice in which event this license shall expire and terminate on the first day of the following January.” The bottom of the document states, “Dock not to exceed 4 FT. B Y 12 FT.” And, “When lot is resold, the dock space automatically goes to the new owner. ” In November 2007, The Town of Castleton sent a lett er to the Henselders informing them that the Town would be reassigning e xisting dock spaces. The Henselders were switched from old dock space number 567-568 to new space number 55.4 The Henselders brought this action in July 2008. Th ey allege that the Town of Castleton deprived them of their ownership interest in the dock space (whether it was a deeded right, easement, assignment, or license) wit hout due process of law or just compensation. The Henselders request that the Court order the Town of Castleton to return the original dock space to their exclusive p ossession. They also request that the dock space originally assigned to their house lot b e merged be forever merged together with that lot. In its Motion for Summary Judgment, Town of Castlet on argues that the dock space is not deeded property. Rather, the Town gave the Henselders a license to use the dock space in the form of the “Agreement for Dock S pace.” By the terms of the agreement, the license was revocable. In response, the Henselders argue that if there was not an assignment of the property, then the “Agreem ent for Dock Space” created an irrevocable license. 

### DISCUSSION “Conveyance of land or an estate or interest there in may be made by deed executed by a person having authority to convey the same . . . and acknowledged and recorded as provided in this chapter.” 27 V.S.A. § 301. Deeds or other conveyances of lands, or of an estate or interest therein, must be signed by the party granting the same and acknowledged by the grantor before a town clerk , notary public, master, county clerk, judge, or register of probate and recorded a t length in the clerk’s office of the town in which such lands lie. 27 V.S.A. § 341. Here, it is undisputed that neither the Castleton Development Commission nor the Town of Castleton ever conveyed a property interest in the dock space to any of the5

Henselder’s predecessors in title, whether by deed, easement or any instrument. The only document which pertains to the dock space is the “A greement for Dock Space,” a previous version of which was signed by a predecess or in title to the Henselders, and subsequently by the Henselders themselves in July 2 006. “A license in real property is an authority or per mission to do a particular act or series of acts upon the land of another.” Robert’s River Rides, Inc. v. Steamboat Development Corporation , 520 N.W.2d 294, 300 (Iowa 1994), abrogated on oth er grounds by Barreca v. Nickolas , 683 N.W.2d 111, 119 (Iowa 2004). It involves the exclusive occupation of the property, but only so f ar as is necessary to do the act, and no further. Robert’s River Rides , 520 N.W.2d at 300. Thus, a license is merely a priv ilege to use land in the possession of another; it is genera lly personal, revocable, and unassignable. Id . at 301. “In determining whether an agreement constitutes a license or an easement, the title of the instrument is not controlling. Rather, the character of the interest created depends upon the intent of the parties as interpret ed from the language used and to the extent the rules of evidence permit from the surrou nding circumstances, viewed in light of the applicable law.” Rowan v. Riley , 72 P.3d 889, 896-97 (Idaho 2003). Here, the “Agreement for Dock Space” clearly set f orth that the license to erect and maintain a dock was not assignable and that the Town could revoke it at any time.
See Rowan , 72 P.3d at 897 (holding agreement with railroad w as license where under terms of agreement railroad could revoke licensee’s privileged without consequences). “Therefore, the licensee’s rights in the property d o not rise to the level of a property right, but instead constitute a revocable privilege to use the property for a specific purpose.” Id

.6

Furthermore, the agreement specifically refers to t he privilege as a license . See Rowan , 72 P.3d at 897 (stating “[i]n addition, the agreeme nt itself recites that it is a license.”). While the right to revoke a license may be denied where the license is coupled with a grant or interest, this case does not fall w ithin that category. Plaintiffs’ argument relies on the reasoning of Coumas v. Transcontinental Garage, Inc. , 230 P.2d 748 (Wyo. 1951). Coumas was a case involving rights in a wall standing bet ween two lots. Id . at 749. The Court stated “a privilege to do certain ac ts of a temporary character on the land of another is and always remains a mere license whi ch is revocable at the will of a licensor unless a definite time has been specified, or unless it is coupled with an interest.” Id . at 758. The Court further stated “licenses couple d with an interest are incidental to an interest in a chattel.” Id . The Court held that such a case was not before i t. Id . Likewise, such a case is not before this Court. Plaintiffs also argue that the payment of valuable consideration for the license may prevent its revocation, citing 25 Am.Jur.2d Easements and Licenses § 122. The Court notes that the case which American Jurisprude nce relies upon specifically held that the grant in question was an easement, not a licens e. See Paul v. Blakely , 51 N.W.2d 405, 408 (Iowa 1952) (stating “[s]ince we have indicated our holding that the grant in question here is an easement rather than a license, we shall consider questions of the assignability or revocation of licenses no farther, except to say that the trend of modern judicial thought is definitely toward the holding that there is often little if any difference in effect between an easement and a written license given for a consideration.”). Notwithstanding, it is undisputed that Plaintiffs never paid any con sideration to the Town of Castleton for the license to erect and maintain the dock.7

Next, Plaintiffs argue that a license also may bec ome irrevocable where the licensee makes great expenditures and permanent imp rovements in justifiable reliance on the licensor. Plaintiffs also argue that the licens or may be required to compensate the licensee for his or her expenditures. However, Plai ntiffs have presented no evidence as to expenditures or improvements. Thus, both arguments fail. Finally, Plaintiffs argue that the revocation shou ld fail because “in equity a license which has been acted on by the licensee may not be revoked, when the revocation would operate as a fraud on the licensee.” See Wheaton v. Cutler , 84 Vt. 476, 484 (1911). Plaintiffs have not made any allegations, nor have they presented any evidence, to support a claim for fraud. Accordingly, Defendant has satisfied its burden of production by showing the Court that there is an absence of evidence in the r ecord to support Plaintiffs’ case. Ross v. Times Mirror, Inc., 164 Vt. 13, 18 (1995). In light of the Court’s fin ding that the “Agreement for Dock Space” constituted a license, P laintiffs have not persuaded the Court that there is a triable issue of fact. See Id . Defendant could revoke the license at anytime and did so by assigning Plaintiffs another dock space. There is no genuine issue of material fact and Defendant is entitled to judgm ent as a matter of law. V.R.C.P. 56(c)(3). 

### ORDER Defendant’s Motion for Summary Judgment, filed June 29, 2009, is GRANTED. Dated at Rutland, Vermont this _____ day of ______ __________, 2010.

____________________ Hon. William Cohen Superior Court Judge