Lodging North, Inc. v. Century Partners, LP, No. S0438-04 CnC (Norton, J., 

June 24, 2005)

[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.S0438-04 CnC 

LODGING NORTH, INC. 

v. 

CENTURY PARTNERS, LP 

ENTRY 

 

 Plaintiff Lodging North, Inc. filed a four-count complaint against 

Defendant Century Partners, LP seeking a judgment declaring that it has an 

easement across Century Partners’ property for the use of a storm drain. 

Century Partners’ amended nine-count counterclaim seeks judgment 

declaring that no storm water easement exists and requests damages under a 

variety of theories. Lodging North has moved for summary judgment on 

all counts. Century Partners has made a cross motion for partial summary 

judgment on all of Lodging North’s counts and counts one through five and 
eight of its counterclaim. For the reasons stated below, summary judgment 

is granted in favor of Century Partners on three counts. 

 Summary judgment is granted “if the pleadings, depositions, 

answers to interrogatories, and admissions on file, together with the 

affidavits, if any . . . show that there is no genuine issue as to any material 

fact and that any party is entitled to judgment as a matter of law.” V.R.C.P. 

56(c)(3). In determining whether a genuine issue of fact exists, the 

nonmoving party receives the benefit of all reasonable doubts and 

inferences. Robertson v. Mylan Labs., Inc., 2004 VT 15, ¶ 15. Allegations 

to the contrary must be supported by specific facts sufficient to create a 

genuine issue of material fact. Id. Where opposing parties both seek 

summary judgment, each is entitled to the benefit of all reasonable doubts 

and inferences in determining whether a genuine issue of material fact 

exists when the opposing party’s motion is being judged. Toys, Inc. v. 

F.M. Burlington Co., 155 Vt. 44, 48 (1990). 

 

FACTS

 The following facts are undisputed. In October 1987 Lodging North 

purchased an 8.7 acre parcel in South Burlington, Vermont, on which a 

hotel was located . In 1990, Lodging North subdivided the parcel into a 6.1 

acre parcel containing the hotel (“Hotel Parcel”) and a 2.6 acre 

undeveloped parcel. On August 29, 1990, Lodging North conveyed to 

Century Partners’ predecessor, TAP Development Corporation, the 2.6 acre 

parcel by warranty deed. TAP subsequently merged with parent company 

Judge Development Corporation. On March 23, 1994, Judge Development 

conveyed the 2.6 acre parcel to Century Partners. 

 The conveyance of the 2.6 acre parcel from Lodging North to 

Century Partners’ predecessor included reservations, restrictions, and 

rights-of-way of record, but did not reference the existence of a storm water 

system from the Hotel Parcel or a right to discharge storm water across 
Century Partners’ property. The conveyance included a 24-foot wide rightof-way to be used “for purposes of general ingress and egress (including 

but not limited to motor vehicle traffic)” to the Hotel Parcel. Neither party 

was aware of the existence of the storm water system on the 2.6 acre parcel 

until development of that parcel began in 1995 or 1996. 

 In 2003, Lodging North expanded its hotel by adding 33 units. This 

expansion increased its discharge into the storm water system. A 

representative of Century Partners appeared at a hearing before the District 

Environmental Commission on Lodging North’s Act 250 application for 

the expansion and objected on the grounds that no storm water easement 

existed. Century Partners appealed the Commission’s approval on the same 

basis. 

 

DISCUSSION 

 

 Lodging North seeks summary judgment on the basis of existence of 

an easement by implication or necessity. Century Partners’ cross motion 

seeks summary judgment on the same issues as well as the remaining 

counts of Lodging North’s complaint, easement by estoppel and a 

declaration that the express easement includes storm water. Century 

Partners also seeks summary judgment on several of its counterclaims 

involving the same issues, as well as a prescriptive easement and the 

burden on the servient estate of increased storm water discharge. 

I. Easement by Implication

 An easement by implication may exist where there is (1) unity and 

subsequent separation of title, (2) obvious benefit to the dominant estate 

and burden to the servient portion of the premises existing at the time of the 

conveyance, (3) use of the premises by the common owner in their altered 

condition long enough before the conveyance to show that the change was 
intended to be permanent, and (4) strict necessity for the easement. 

Chevalier v. Tyler, 118 Vt. 448, 450–51 (1955); Read v. Webster, 95 Vt. 

239, 244 (1921). All four elements must have existed at the time of 

conveyance, in this case August 29, 1990. Chevalier, 118 Vt. at 451. The 

first element is undisputed. The remaining three require discussion. 

 There is some disagreement between the parties regarding whether 

the storm water system was “obvious” at the time of conveyance. Vermont 

recognizes both actual and inquiry notice with respect to interests in land. 

Myers v. LaCasse, 176 Vt. 29, 40 (2003). In addition, the modern view is 

that underground utilities, including drainage pipes, are per se apparent. 

Restatement (Third) of Property (Servitudes) § 2.12 cmt. g (2000); cf. 

Implied Easement in Respect of Drains, Pipes, or Sewers Upon Severance 

of Tract, 58 A.L.R. 832 (“the majority of cases which have considered the 

question have taken the view that appearance and visibility are not 

synonymous, and that the fact that the pipe, sewer, or drain may be hidden 

underground does not negative its character as an apparent condition; at 

least, where appliances connected with and leading to it are obvious.”). 

The existence of the storm water system was per se apparent. 

 

 Lodging North must show use of the storm water system long 

enough before the conveyance to show that the change was intended to be 

permanent. Lodging North asserted in it Statement of Undisputed Material 

Facts that the storm water system has been in continuous use since 1968 

and has been used by Lodging North since it purchased the property in 

1987. There is no support in the record for this assertion, however. Where 

Century Partners has disputed the fact, the court finds the issue of length of 

use to be a disputed material fact. See V.R.C.P. 56(c)(2) & (3) and 2003 

Reporter’s Notes (Supp. 2004). 

 

 Contrary to the majority of jurisdictions, Vermont requires that an 

implied easement in favor of the grantor be of “strict necessity.” See 
Restatement (Third) of Property (Servitudes) § 2.12 cmt. e and Reporter’s 

Note (collecting cases). The Court’s reasoning for a strict necessity 

requirement has been forcefully stated: 

To say that a grantor reserves to himself something out of the 

property granted, wholly by implication, not only offends the rule 

that one shall not derogate from his own grant, but conflicts with 

the grantor’s language in the conveyance, which, by the rule, is to 

be taken against him, and is wholly inconsistent with the theory on 

which our registry laws are based. If such an illogical result is to 

follow an absolute grant, it must be by virtue of some legal rule of 

compelling force. The correct rule is, we think, that where, as 

here, one grants a parcel of land by metes and bounds, by a deed 

containing full covenants of warranty and without any express 

reservation, there can be no reservation by implication, unless the 

easement claimed is one of strict necessity, within the meaning of 

that term as explained in Dee v. King, 73 Vt. 375 [(1901)].

Howley v. Chaffee, 88 Vt. 468, 474 (1915). The standard for strict 

necessity set forth in Dee v. King is, more than convenience or usefulness, 

whether there is any viable alternative. 73 Vt. at 377– 78. A strict 

necessity has also been described as the only “reasonable” option. 

Chevalier, 118 Vt. at 453-54. 

 There is a clear factual dispute concerning the strict necessity of an 

easement for the current storm water system. Both parties have submitted 

affidavits by expert engineers. The experts reach opposite conclusions 

concerning the feasibility of alternative storm water drainage systems. In 

determining strict necessity, the court must consider alternatives to 

discharge across Century Partners’ property. See Chevalier, 118 Vt. at 452 

(uncontradicted evidence that were no alternatives for sewage disposal 

required finding of necessity). There is a factual dispute concerning the 

availability of viable alternative storm water drain systems. 
 Both parties’ motions for summary judgment are denied with respect 

to the existence of an implied easement by continuous use due to factual 

disputes concerning several of the elements. 

II. Easement by Necessity

 Unlike an implied easement based on use, where the basis is the 

intent of the parties, an easement by necessity is based on the public policy 

interest of providing accessibility to all land so that it may be made useful. 

Traders, Inc. v. Bartholomew, 142 Vt. 486, 491 (1983). An easement by 

necessity has traditionally been understood in Vermont as being about 

access to a landlocked parcel. The Vermont Supreme Court recently stated: 

“A way of necessity is ‘a fiction of law,’ that arises when the division and 

transfer of commonly owned land results in a parcel left entirely without 

access to a public road.” Myers, 176 Vt. at 36 (internal citation omitted). 

However, Myers was a case specifically about overland access. 

Furthermore, the court went on to cite approvingly of the current 

Restatement’s assertion that an easement by necessity 

avoids the costs involved if the property is deprived of rights 

necessary to make it useable, whether the result is that it remains 

unused, or that the owner incurs the costs of acquiring rights from 

landowners who are in a position to demand an extortionate price 

because of their monopolistic position.

Id. (citing Restatement (Third) of Property (Servitudes) § 2.15 cmt. a 

(2000)). This understanding is in keeping with the modern trend to broaden 

the use of easements by necessity to include utilities and, perhaps, other 

services. 

[T]he increasing dependence in recent years on electricity and 

telephone service, delivered through overland cables, justify the 

conclusion that implied servitudes by necessity will be recognized 

for those purposes. Whether access for other utilities and services 
has also become necessary to reasonable enjoyment of property 

depends on the nature and location of the property and normal land 

uses in the community. 

Restatement (Third) of Property (Servitudes) § 2.15 cmt. d; see, e.g., 

Richards v. Land Start Group, Inc., 593 N.W.2d 103, 108-09 (applying 

principles of the Restatement (Third) of Property (Servitudes) to consider 

whether an easement for utilities was reasonably necessary for the needs of 

the dominant estate). Whether or not an easement by necessity exists 

depends largely of the necessity for running the storm water system across 

Century Partners’ land. That issue, as stated in the discussion on implied 

easements above, remains a disputed material fact. 

 Summary judgment is therefore denied on the issue of easement by 

necessity. 

III. Easement by Estoppel

 A claim of easement by estoppel is analyzed using the ordinary 

elements of equitable estoppel. See Tallarico v. Brett, 137 Vt. 52, 60 

(1979). “The party who invokes equitable estoppel has the burden of 

establishing all four of the following elements: (1) the party to be estopped 

must know the facts; (2) the party being estopped must intend that his 

conduct shall be acted upon or the acts must be such that the party asserting 

the estoppel has a right to believe it is so intended; (3) the party asserting 

estoppel must be ignorant of the true facts; and (4) the party asserting 

estoppel must rely on the conduct of the party to be estopped to his 

detriment.” Westco, Inc. v. City of Montpelier, 169 Vt. 520, 524 (1999). 

 Lodging North’s claim of easement by estoppel is twofold: (1) 
Century Partners sought Lodging North’s permission to re-route the storm 

drain when Century North developed the 2.6 acre parcel in the mid 1990s 

and (2) Lodging North reasonably relied upon Century Partners’ failure to 

object to the storm drain when it expanded its hotel in 2003. In support of 

its motion for summary judgment, Century Partners’ Statement of Material 

Facts states only that objection to the hotel expansion was raised at the time 

of the Act 250 application hearing. 

 The evidence currently in the record concerning the 1996 re-routing 

of the storm water system is enough to support an inference that Century 

Partners undertook a course of conduct upon which Lodging North 

reasonably relied, but it is not dispositive without additional facts 

concerning the actions and understandings of the parties. Furthermore, 

there is a dispute as to whether the objection made by Century Partners at 

the time of the Act 250 hearing was sufficient to prevent Lodging North 

from acting to its detriment in investing in hotel expansion. There are 

currently insufficient undisputed facts to support judgment as a matter of 

law on the issue of easement by estoppel. 

IV. Scope of the Express Easement

 The scope of an express easement, like all contract terms, is to 

determined first by the words used in the agreement. Tilley v. Green 

Mountain Power Corp., 156 Vt. 91, 93–94 (1991). Only if there is an 

ambiguity, will the court consider surrounding circumstances to discern the 

intent of the parties. Id. Lodging North contends that the express easement

contained in the deed for the 2.6 acre parcel “for purposes of general 

ingress and egress (including but not limited to motor vehicle traffic)” to 

the Hotel Parcel can be construed to include a storm water system. 
Lodging North specifically points to the language “including but not 

limited to motor vehicle traffic” and suggests that the easement is general. 

 The express easement, unambiguous on its face, allows only for 

“general ingress and egress.” This provides for a right of entry and 

departure from the Hotel parcel. See Black’s Law Dictionary (8th ed.) 798 

& 555 (defining “ingress” and “egress” as the acts of entering and leaving). 

Cases cited by Lodging North for its proposition that a right-of-way should 

be construed broadly are distinguishable on this point because they involve 

terms written much more general than the deed here. See, e.g., Birdsey v. 

Kosienski, 101 A.2d 274, 275 (Conn. 1953) (easement was for “the right of 

passway from the north end to the south end of said piece of land”). The 

express easement for ingress and egress, as a matter of law, does not 

include a right to install a storm water system within the right-of-way. 

Thompson v. Pendleton, 697 A.2d 56, 59 (Me. 1997) (easement for ingress 

and egress did not include right to install utilities); U.S. Cablevision Corp. 

v. Theodoreu, 596 N.Y.S.2d 485, 487 (N.Y. App. Div. 1993) (“The grant of 

a mere right-of-way for ingress and egress does not, however, include the 

right to install underground pipes or utility lines.”). 

 Summary judgment is granted in favor of Century Partners on the 

issue of scope of the express easement. 

V. Prescriptive Easement

 

 Century Partners has moved for a summary judgment ruling that 

Lodging North does not have a prescriptive easement for the storm water 

system. To obtain an easement by prescription, Lodging North’s adverse 

use must have been continuous for fifteen years. Cmty. Feed Store, Inc. v. 
Northeastern Culvert Corp., 151 Vt. 152, 155 (1989). Lodging North sold 

the 2.6 acre parcel in August 1990, development did not begin until 1995, 

and Century Partner’s counterclaim was filed May 5, 2004. Thus, Lodging 

North cannot establish hostile use for the full fifteen-year statute of 

limitations. See 12 V.S.A. § 501. Summary judgment on this issue is 

uncontested by Lodging North and is granted. 

VI. Burden of Increased Storm Water Discharge

 

 Century Partners has moved for summary judgment on the issue of 

whether the additional storm water discharge across its property as a result 

of hotel expansion has placed an undue burden on the servient estate. 

Because the court has not, at this stage, found an easement to exist, this 

issue is not ripe for review. 

 Based on the foregoing, Century Partners’ motion for summary 

judgment is granted in part and denied in part. Lodging North’s motion for 

summary judgment is denied. 

 Dated at Burlington, Vermont this ____ day of June, 2005. 

____________________________ 

 Hon. Richard W. Norton 

 Presiding Judge