Mahoney v. Tara, LLC, No. S1543-07 CnC (Crawford, J ., Oct. 5, 2012)

[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

SUPERIOR COURT CIVIL DIVISION

Chittenden Unit Docket No.: S1543-07 CnC

J. DANIEL MAHONEY, et al.,

Plaintiffs

v.

TARA, LLC,

Defendant

DECISION ON CROSS
MOTIONS FOR SUMMARY JUDGMENT

This case is before the court on remand from the Ve rmont Supreme Court. Mahoney v.
Tara, LLC , 2011 VT 3, 189 Vt. 557 (mem.). The parties to th is action dispute the location of a boundary separating two adjoining shore-front prope rties on Lake Champlain. By their Amended Complaint, Plaintiffs seek to establish the boundary though claims of (1) adverse possession; (2) acquiescence; and (3) prescriptive easement. Defendant Tara, LLC has moved for summary judgment on plaintiffs’ claims of adver se possession and acquiescence, asserting that the disputed property is shielded from these c laims because it was used for a public, pious, or charitable purpose. Plaintiffs have filed their own motion for summary judgment seeking to establish that claims of acquiescence can be made a gainst a property regardless of its use.

Summary judgment is appropriate where “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a ma tter of law.” V.R.C.P. 56(a). The party moving for summary judgment has the burden of proof , and the opposing party must be given

the benefit of all reasonable doubts and inferences in determining whether a genuine issue of

material fact exists. Price v. Leland , 149 Vt. 518, 521 (1988). However, a party may no t “rest on allegations in the pleadings to rebut credible docu mentary evidence or affidavits.” Gore v. Green Mountain Lakes, Inc. , 140 Vt. 262, 266 (1981). “Instead, the nonmoving party ‘must come forward with an opposing affidavit or other evidenc e that raises a dispute as to the fact or facts in

issue.’” Clayton v. Unsworth , 2010 VT 84, ¶ 16, 137 Vt. 508 (citing Alpstetten Ass’n v. Kelly

, 137 Vt. 508, 514 (1979)). ). Where both parties se ek summary judgment, “each must be given

the benefit of all reasonable doubts and inferences when the opposing party’s motion is being

evaluated.” Northern Sec. Ins. Co. v. Rosenthal , 2009 VT 83, ¶ 4, 186 Vt. 578 (mem.) (citation omitted).

FACTS

Plaintiffs and Defendant own adjacent parcels of la nd along Lake Champlain in Colchester, Vermont. Plaintiffs’ family began rent ing a property on the lake (the Mahoney Lot)2

in 1949 and eventually purchased it in 1976. 1 Throughout their lease and ownership of the Mahoney Lot, and by the terms of their deed, plaint iffs enjoyed the use of approximately seventy-five feet of lake frontage.

The adjacent lot to the northeast (the Tara Lot) wa s owned by Vermont Catholic Charities, Inc. (VCC) from 1958 until 2006. During this time period, the Tara Lot was leased to Camp Tara, Inc. which operated the property as a se cular summer camp. 2 In 2006, the property was sold to Defendant Tara, Inc. (Tara). The follo wing year Tara filed an application to subdivide the Tara Lot. This application included a survey showing the Tara Lot’s southerly boundary line cutting plaintiffs’ beach in half.

Tara has submitted several affidavits in support o f its motion for summary judgment.

The Vicar General and Chancellor of the Roman Catho lic Diocese of Burlington, Vermont, John McDermott, states by affidavit that “as demonstrate d by this documentation and my personal knowledge, the Camp Tara property was used and oper ated for charitable purposes from 1959 through 2003, always enrolling and serving children without regard to religion, race, or creed.” Aff. of John McDermott ¶ 4 (dated May 4, 2012). Th e attached documents were official records demonstrating that the summer camp served underpriv ileged children in the years 1959, 1968, 1978, 1988, and 1998.

The Controller and Director of Professional Service s of Vermont Catholic Charities, Denise Payea, also asserted by affidavit that “as d emonstrated by this documentation and my personal knowledge, the Camp Tara property was used and operated for charitable purposes from 1959 through 2003, always enrolling and serving chi ldren without regard to religion, race, or creed.” Aff. of Denise Payea ¶ 4 (dated May 4, 2012 ). Attached to her affidavit were several letters from 1957–1959, the articles of in corporat ion of Camp Tara, Inc., leases between VCC and Camp Tara, Inc. dated 1958 and 1982, a press re lease from 1967, and camp reports from 1970 and 1971. Ms. Peyea also explains that she sp ent two summers working at the camp during college. Id

.

The Executive Director of Camp Tara from approximat ely 1977–1981, Paul Rabidoux, asserts by affidavit that “Camp Tara was operated o n a not-for-profit basis.” Aff. of Paul Rabidoux ¶ 3 (dated April 20, 2012). He also state s that “during [his] tenure as executive director, Camp Tara operated a summer camp for unde rprivileged children, without regard to a child’s religion. . . . No tuition or other fees we re charged to campers; the entire budget for the Camp was funded by [VCC].” Id . ¶ 5. And that “[s]o far as I can determine, Camp Tara operated substantially the same way and used the same proper ty prior to my term as executive director as

it did while I was the executive director.” Id . ¶ 13.

The plaintiffs have summarily denied many facts as serted by plaintiff on the grounds that defendant failed to provide sufficient evidentiary support and that the evidence does not establish the use of the camp for the entire period between 1 958 and 2006. In a sur reply, plaintiffs claim

1 Plaintiffs’ Amended Complaint asserts that the pre decessors of the Mahoney family claimed ownership o f the disputed property since 1939 and that any period of acquiescence also started in 1939.

2 The camp was apparently known as Camp Iroquois pri or to Camp Tara.3

that the property was not used for charitable purpo ses during the 44 weeks per year the camp was not in session. Aff. of Patrick Mahoney ¶ 11 (dated July 30, 2012).

DISCUSSION

Defendant has moved for summary judgment on plainti ff’s claims of adverse possession and acquiescence, arguing that these causes of acti on are unavailable against property dedicated to a public, pious, or charitable use. Plaintiffs’ claim relating to a prescriptive easement is not addressed by the pending motion for summary judgmen t.

I. Adverse Possession

“[T]o prove adverse possession, one must demonstrat e fifteen years of open, notorious, hostile, and continuous possession.” In re Estates of Allen

, 2011 VT 95, ¶ 14. In other words, the adverse possessor “must unfurl his flag on the land, and keep it flying so that the owner may see, if he will, that an enemy has invaded his domi nions and planted his standard of conquest.”

Barrell v. Renehan , 114 Vt. 23, 29 (1944).

Vermont law exempts from claims of adverse possess ion “lands given, granted, sequestered, or appropriated to a public, pious or charitable use.” 12 V.S.A. § 462. In determining whether an entity qualifies for the § 4 62 exception, the court applies the three part

test articulated in American Museum of Fly Fishing v. Town of Mancheste r , 151 Vt. 103 (1989). MacDonough-Webster Lodge v. Wells , 2003 VT 70, ¶¶ 11–13, 175 Vt. 382. Under this tes t, to qualify for the charitable use exemption from claim s of adverse possession the property must meet three criteria: “(1) the property must be dedi cated unconditionally to public use; (2) the primary use must directly benefit an indefinite cla ss of persons who are part of the public, and must also confer a benefit on society as a result o f the benefit conferred on the persons directly served; and (3) the property must be owned and oper ated on a not-for-profit basis.” Am. Museum of Fly Fishing , 151 Vt. at 110.

Plaintiffs argue that property must be tax exempt t o qualify for the protection from adverse possession afforded by § 462, citing Wells , 2003 VT 70. Building on this, plaintiffs argue that the Tara Lot is not tax exempt under 32 V.S.A. § 3832, which limits tax exemption for properties owned by religious societies to certain uses such as church buildings and parsonages. Plaintiffs misinterpret the holding in Wells

.

In Wells , the Vermont Supreme Court explained that the lang uage, purpose, and date of passage of § 462 and § 3802(4) are nearly identical

. Wells , 2003 VT 70, ¶ 12. The Court then

reasoned that the same test—the Fly Fishing test—should be used to determine whether a property qualifies for the charitable use exception under both statutes. Id . ¶¶ 11–13. It is important to recognize that the Court neither appli ed other tax provisions nor indicated that the entire body of statutes governing tax exemption sho uld be considered in § 462 analysis. It simply adopted a test which had already been develo ped to determine whether a property was held for a public, pious, or charitable use. There is no basis to import other provisions of Title 324

into the § 462 analysis, and the exception to the t axation exemption found in § 3832 is not

relevant to this case.

In reaching this conclusion, the court has consider ed the following points:

In remanding this case, the Vermont Supreme Court d irected the trial court that “the focus of the exemption [provided by section 462] is not on lands held by a public pious or charitable user . . . but rather on ‘lands given, g ranted, sequestered or appropriated to a public pious or charitable use .’” Mahoney , 2011 VT 3, ¶ 10 (quoting 12 V.S.A. § 462). The t rial court erred the first time in concluding its analysis wit h the determination that the land was owned by a religious organization. Ownership, however, is not the test for purposes of § 462—use is the

test.

In the current motions, it is the plaintiffs—the pr ivate camp owners—who now focus on the issue of ownership by a religious society. The y turn to 32 V.S.A. § 3832(2), which greatly limits tax exemption for properties owned by religi ous societies. Only a few uses qualify for tax exemption. These include church buildings, parsona ges and convents, hospitals and homes for the poor or disabled, and similar traditional insti tutions. For purposes of § 3832, the nature of the organization that holds title is critical to th e inquiry. See Our Lady of Ephesus House of Prayer, Inc. v. Town of Jamaica , 2005 VT 16, ¶ 29, 178 Vt. 35 (excluding property from exemption because it was owned by a “religious soci ety” and did not fall within the specific uses set out in 32 V.S.A. § 3832(2)).

In contrast, § 462 provides protection against adve rse possession to all property held for three broad types of uses: public, pious or charit able. There is no further limitation of the type imposed by § 3832(2) on “religious societies.” In giving meaning to the words “public, pious or charitable,” the Wells decision adopted the Fly Fishing test, but it did not adopt the entire structure of municipal tax exemption.

The difference between § 462 and § 3832(2) opens th e possibility of a mildly anomalous result: property owned by a “religious society” mi ght be protected from adverse possession but still subject to local property tax. The justifica tion for such a difference lies in the different reasons for the two provisions. Property put to a public, pious or charitable use may be less guarded by its communal owners against the threat o f adverse possession than private land. See

Wells , 2003 VT 70, ¶ 10 (“Land qualifying for the except ion lacks the protection of a discrete individual or group’s long term interest in guardin g the property against encroachments.”).

Section 3832(2), on the other hand, protects the ta x rolls, not the property owner. It is a pocket-book provision. Ownership of property by a religious society is not sufficient; the property must be used for specific purposes such as a house of worship or certain forms of charitable activity. The reasons for treating pious organizations less favorably than secular charities are historical and beyond the scope of th is decision. The issue for this ruling is that the membership of a religious society has the same need for protection against encroachment by its neighbors as any other charitable organization or p ublic body. The court will not limit the statutory protection for “pious use” in § 462 by th e additional—and very different—limitation for “religious societies” that appears in § 3832(2)

.5

The court now turns to the status of the Tara Lot while owned by VCC, and the application of the Fly Fishing test. Defendant has put forth evidence that the pr operty was owned and operated on a not-for-profit basis for th e purpose of benefitting under-privileged youth. It asserts that the property therefore meet s the Fly Fishing test, and is protected from claims of adverse possession by § 462.

Plaintiffs summarily deny many of the facts assert ed by Tara, and question whether the summary judgment record reflects the use of the pro perty for the entire period from 1958 until 2006. Plaintiffs also dispute whether the “primary use” of the property—factor two of the Fly Fishing test—was to benefit the public. Specifically, Plai ntiffs Patrick Mahoney asserts that “rentals by private groups for events such as weddi ngs and conferences were a normal occurrence when Camp Tara was not in session.” Aff. of Patrick Mahoney ¶ 11 (dated July 30, 2012). There is a dispute of fact relating to the primary use of the property which cannot be resolved on summary judgment. Defendant’s motion o n this issue is therefore DENIED

.

The court also notes that plaintiffs’ claim of adve rse possession runs from 1939 until 2006. The VCC did not obtain the property until 19 58. Therefore, plaintiffs may demonstrate that they satisfied the elements of adverse possess ion prior to the VCC’s ownership and avoid the application of § 462.

II. Acquiescence

Defendant argues that § 462 bars claims of acquiesc ence against property used for a public, pious, or charitable purpose in the same wa y that it bars claims of adverse possession. The court previously determined that “the acquiesce nce claim cannot survive because it also depends on completion of the 15-year period in § 50 1, made inapplicable by § 462.” Entry (dated June 5, 2008) (Katz, J.). On appeal, the Vermont S upreme Court specifically declined to

consider this issue. Mahoney , 2011 VT 3, ¶ 13. Plaintiffs maintain that § 462 does not apply to claims of acquiescence.

“A boundary is established by acquiescence when the re is mutual recognition of a given line by adjoining landowners, and continuous posses sion by one to the line for a fifteen-year period, which is the same as the period required to establish ownership by adverse possession.” Okemo Mountain, Inc. v. Lysobey , 2005 VT 55, ¶ 14, 178 Vt. 608 (mem.) (citations o mitted). “[A]cquiescence in a wrong line will not establish it as the true boundary unless the demands of the statute of frauds or adverse possession are met .” Haklits v. Oldenburg , 124 Vt. 199, 204 (1964). “[A] boundary line established by acquiesc ence . . . will give a perfected title by adverse possession.” Beresford v. C.W. Gray and Sons, Inc. , 138 Vt. 308, 309 (1980).

In Vermont there is little, if any, distinction bet ween acquisition through adverse possession and acquiescence. As explained by Powel l on Real Property, “those states acknowledging that adverse possession’s ‘hostility’ requirement may be fulfilled innocently

sometimes admit no real distinction between the two doctrines.” 9 R. Powell, Powell on Real6

Property § 68.05[3][c] (1999) (citing Beresford , 138 Vt. 308; Haklits , 124 Vt. 199). 3 Indeed, the Vermont Supreme Court specifically stated that a bo undary cannot be set by acquiescence unless the elements of adverse possession are met. Haklits , 124 Vt. at 204.

Plaintiffs assert that the Vermont Supreme Court ha s determined a boundary by acquiescence despite finding that the elements of a dverse possession did not exist, citing Brown v. Derway , 109 Vt. 37, 43 (1937). The Court in Brown was called on to determine the boundary between two parcels of land. 4 The disputed boundary was described by deed as te rminating at an

oak tree. Id . at 40. The tree was no longer in existence at th e time of the action, and the Court

held that the former location of the oak tree was a question of fact to be proved at trial. Id . at 44. With regard to acquiescence, the Court stated that “acquiescence in a wrong line will not establish it as the true line, such acquiescence fo r a long period of time is evidence that such line

is the true line.” Id. at 43. The ruling referred only to proper evidenc e at trial, and did not purport to determine a boundary by acquiescence.

This court can find no Vermont case which holds tha t a party may acquire property by acquiescence without meeting the elements of advers e possession. It appears that acquiescence is merely a special form of adverse possession. Be cause of this, the court is convinced that claims of acquiescence are controlled by § 462 in t he same way as claims of adverse possession.

Finally, like the claim of adverse possession, plai ntiffs may establish that the disputed boundary was established by acquiescence prior to V CC’s ownership of the Tara Lot.

CONCLUSION

Pursuant to 12 V.S.A. § 462, property is protected from claims of adverse possession and acquiescence if it is dedicated to a public, pious, or charitable use.

To determine whether the Tara Lot was dedicated to a public, pious, or charitable use, the court will apply the Fly Fishing test and disregard other tax provisions.

Because there are material disputes of fact regardi ng the primary use of the Tara Lot between 1958 and 2006, the court cannot determine whether t he Fly Fishing test is met, and defendant’s motion for summary judgment on plaintiffs’ claims o f acquiescence and adverse possession is

DENIED

.

3 As explained in Jarvis : “Hostility, when used in the context of adverse p ossession, does not require the presence of

ill will toward the actual owner nor destructivenes s toward the land. Rather, what is required is tha t the adverse possessor intends to claim the land and treat it as his own.” 155 Vt. at 641.

4 Coincidentally, one parcel was owned by a church a nd housed a summer camp. Brown 109 Vt. at 39.7

Plaintiff’s cross-motion for summary judgment which raises the same issues is also DENIED.

DATED at Burlington, Vermont,

______________________ Geoffrey Crawford Presiding Judge