Seaburg v. Purple, No. 88-4-04 Ancv (Reiss, J., Aug. 1, 2005)

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STATE OF VERMONT ADDISON COUNTY, SS.

) JANET SEABURG and ) Addison Superior Court BRUCE SEABURG ) ) Docket No. 88-4-04 Ancv v. ) ) LESLIE PURPLE )

OPINION AND ORDER REGARDING PLAINTIFF’S MOTION FOR
SUMMARY JUDGMENT AND DEFENDANT’S CROSS-MOTION FOR
SUMMARY JUDGMENT

This matter comes before the court on a motion for partial summary judgment by Plaintiffs Janet Seaburg and Bruce Seaburg. Defend ant Leslie Purple has filed a crossmotion for summary judgment. The underlying action concerns two disputed portions of land between Plaintiffs’ and Defendant’s neighborin g properties. Both motions address Defendant’s claims for adverse possession and a pre scriptive easement over these portions of land.

The following facts are undisputed. Plaintiffs ar e the record owners of approximately 10.2 acres of land in Ferrisburg, Ver mont. They purchased the land in 1990. Defendant Leslie Purple’s 5 acre parcel abut s Plaintiffs’ land to the East. Defendant, who was renting in 1981, purchased her p resent 5-acre lot in August 1982. Defendant maintains a fence around the portion of l and used for grazing horses. The pasturing occurs throughout the year, with a break each summer when the horses are

moved off the land for two-week rotations. Defenda nt did not use the portion of land for horse grazing for half of 1999. Following her purc hase in 1982, Defendant claims that she never received permission to use the disputed p roperty during the statutory 15-year period and that she used the property in an open, n otorious, hostile and continuous2

manner during the 15 year period sufficient to esta blish her title pursuant to 12 V.S.A. §

501.

In or around 2003, the parties began to dispute ow nership of the property in question. Plaintiffs filed suit, seeking trespass damages, an order to quiet title, and an ejectment order. Defendant has counterclaimed, arg uing she possesses the grazing land through adverse possession and a path through presc riptive easement.

Plaintiffs have filed a summary judgment motion on Defendant’s adverse possession and prescriptive easement claims, arguin g that the Defendant’s use was permissive and therefore not hostile to Plaintiffs’ interest. Plaintiffs also argue that

Defendant’s use was not continuous for the statutor y 15-year period, Defendant did not have the requisite intent to adversely possess the land, and Defendant’s use was not open, notorious, and hostile. Defendant has filed a cros s-motion for summary judgment. She denies that her use was permissive and argues that Plaintiffs’ evidence regarding permissive use is inadmissible and Plaintiffs’ othe r arguments regarding adverse possession are unavailing.

Summary judgment is appropriate where “there is no genuine issue as to any material fact and . . . any party is entitled to ju dgment as a matter of law.” V.R.C.P. 56(c)(3). “The party against whom summary judgment is sought is entitled to the benefit

of all reasonable doubts and inferences in determin ing whether a genuine issue of

material fact exists.” Toys, Inc. v. F.M. Burlington Co. , 155 Vt. 44, 48 (1990). “[W]here both parties are seeking summary judgment, both par ties are entitled to these benefits when the opposing party's motion is being judged.” Id

. Defendant ultimately bears the burden of proof at trial on her adverse possession and prescriptive easement claims. Jarvis v. Gillespie , 155 Vt. 633, 638 (1991). Accordingly, summary judgment in Plaintiffs’ favor on Defendant’s claim is appropriate

if Defendant fails to establish the essential eleme nts of her claims or if Plaintiffs establish a legal defense to those claims. Poplaski v. Lamphere , 152 Vt. 251 (1989).

Plaintiffs first claim that Defendant’s use of the disputed property was permissive. In order to successfully claim adverse possession, Defendant “‘must demonstrate that possession of the land was open, notorious, hostile and continuous throughout the statutory period of fifteen years.’” MacDonough-Webster Lodge No. 26 v. Wells , 175 Vt. 382, 393 (2003) (quoting N.A.S. Holdings, Inc. v. Pafundi , 169 Vt. 437, 438 (1999)). “The elements necessary to establish a prescriptive easement are essentially the same as those for adverse possession.” In re Town Highway No. 20 , 2003 VT 76, ¶ 22. Both the adverse possession and prescriptive easement claims may be defeated if Defendant’s use is shown to be permissive. See Id . (holding that use of “road by permission is not a dverse unless there has been a repudiation ‘either made kn own expressly or clearly indicated by unequivocal actions.’”) (quoting In re Estate of Smilie , 135 Vt. 217, 220 (1977)); Wells

,3

175 Vt. at 395 (“‘[I]f a claimant’s use of the prop erty is shown to be permissive, then he cannot acquire title by adverse possession.’”) (alt eration in original) (quoting Havendick v. Ruby , 10 P.3d 1119, 1122 (Wyo. 2000)).

Here, Plaintiffs claim that they and their predece ssors in title gave Defendant permission to use their land. First, they claim th at they sent Defendant a letter in 1999, stating that they were “[a]llowing grazing privileg es on [their] property.” Defendant admits to having received this letter, but argues t hat Plaintiffs sent it after the 15-year statutory period had run and thus the letter is of no effect in defeating Defendant’s claims. Even if the court accepts the fact that Plaintiffs stated to Defendant in 1999 that her use of the land was permissive, this fact provides no b asis for the court to find that Plaintiffs had granted permission to Defendant during the 15-y ear statutory period between 1982 and 1997. The court agrees that the 1999 letter, s ent and received after the claimed 15- year statutory period, does not provide a basis for deciding Defendant’s use was permissive. See Zuanich v. Quero , 135 Vt. 322, 325 (1977) (“Once the grant is established by adverse use, the subsequent granting of permission will not serve to divest or defeat the claim.”).

Plaintiff Bruce Seaburg further states in an affid avit that “[p]ermission was granted . . . by us since 1990.” Defendant counter s that she never received permission

from Plaintiffs until the 1999 letter. Plaintiffs additional claim that their predecessors in title gave Defendant permission, although they offe r no direct testimony from the predecessors in title to establish this fact. See V.R.C.P. 56(e) (“Supporting and opposing affidavits shall be made on personal knowledge, sha ll set forth such facts as would be admissible in evidence, and shall show affirmativel y that the affiant is competent to testify to the matters stated therein.”). Defendan t denies this claim. The court finsd that there is a genuine issue of material fact as to whe n Plaintiffs granted permission to Defendant in 1990 and whether their predecessors in title did so prior to that date. Accordingly, summary judgment in Plaintiffs’ favor because Defendant’s use was allegedly permissive is not appropriate.

Plaintiffs next argue that Defendant’s use was not continuous because she rotated her horses off the land to graze elsewhere for a pe riod each summer and she did not even

use the land at all for half of 1999. A “continuou s” use is not necessarily a constant use. “It is well established that there may be lapses of time between acts of possession. Whether the amount of time between acts of occupanc y interrupts the running of the period depends on circumstances and intention of oc cupier.” N.A.S. Holdings, Inc. v. Pafundi , 169 Vt. 437, 443 (1999); see also Darling v. Ennis , 138 Vt. 311, 313–14 (1980) (“Continuity of use is merely such use as an averag e owner would make of the property, taking into account its nature and condition.”). D efendant cites fact which she claims4

support a finding that her use is continuous. The court finds that there is a genuine issue of material fact with regard to whether Defendant’s use was sufficiently continuous. 1

Plaintiffs further argue that Defendant’s use of t he land was not open, notorious,

and hostile to Plaintiffs’ interests because the me re pasturing of horses is not enough to amount to adverse possession, especially because De fendant never prohibited others from traversing the claimed portion of land until 2003 a nd even allowed Plaintiffs to enter the land and perform landscaping and tree-cutting activ ities in 1999. Plaintiffs cite no legal authority for the proposition that, as a matter of law, the pasturing of horses or any other animal is insufficient to claim title by adverse po ssession.

Defendant admits that 2003 was the last time she r emembers telling others to stay off the claimed portion of land. She also claims t hat the grazing area was surrounded by a fence, was brush-hogged, and was pockmarked with hoofprints even when the horses were not there. “Marking a claim to land with a fe nce is an indication of an intent to possess which, if combined with other acts of posse ssion, can establish the presumption that land is held adversely up to the fence.” Wells , 175 Vt. at 396. The court finds that there is a disputed issue of fact as to whether Def endant’s use was of a sufficient magnitude to notify the Plaintiffs of her claim and thus to establish one of the essential elements of an adverse possession claim.

Finally, Plaintiffs argue that Defendant did not h ave the requisite intent to claim the portion of land as her own because she never co nsidered claiming adverse possession until after the lawsuit began. “A person can gain t itle by adverse possession even without the intention of taking land not belonging to him ‘ so long as he does intend to exclude all

others.’” Id . at 393–94 (quoting Ganje v. Schuler , 659 N.W.2d 261, 266 (Minn. Ct. App. 2003)). A claim of adverse possession neither requ ires a lawsuit to render it viable, 3 Am. Jur. 2d §248, nor requires the person claiming it “to voice his claim if his use is such as to indicate that a prescriptive claim is being a sserted....” Zuanich , 135 Vt. at 325 (quoting Hilliker v. Husband , 132 Vt. 566, 568 (1974)). The timing of Defendan t’s intent to claim title by adverse possession may call into question the veracity of her other claims, but this issue is one of credibility for th e factfinder to resolve.

1 With regard to Defendant’s lack of use of the prop erty for half of 1999; this time period is beyond the statutory period claimed by De fendant in asserting title by adverse possession. “After title has been acquired by adve rse possession, it is not necessary to continue holding the land adversely; thus, the fail ure to continue to hold the land adversely will not defeat the title already acquire d, nor will it reinvest the title in another.” 3 Am.Jur. 2d §249 at 287.5

“[I]t is hornbook law that the benefit of all reas onable doubts and inferences is to be given to the nonmoving party in determining whet her a genuine issue exists.” Berlin Dev. Assocs. v. Dep’t of Soc. Welfare , 142 Vt. 107, 111 (1982). “[B]ecause of its sever e consequences, summary judgment should be granted ca utiously so that no one will be improperly deprived of a trial of disputed factual issues.” Margison v. Spriggs , 146 Vt. 116, 118 (1985) (citation omitted). Plaintiffs hav e created sufficient issues of material fact to defeat Defendant’s Motion for Summary Judgm ent. Defendant, in turn, has created genuine issues of material fact with regard to each of Plaintiff’s defenses to Defendant’s adverse possession claims sufficient to preclude summary judgment in Plaintiffs’ favor. Resolving all reasonable doubts in favor of the non-moving party, the court concludes that summary judgment for either pa rty is not warranted.

For the reasons stated above, Plaintiffs’ motion f or summary judgment is DENIED; Defendant’s cross-motion for summary judgme nt is also DENIED.

SO ORDERED.

Dated at Middlebury, Vermont, August 1, 2005.

__________/s/______________

Hon. Christina Reiss Presiding Judge Addison Superior Court