Henselder v. Town of Castleton, No. 556-7-08 Rdcv (Cohen, J., Feb. 12, 2010)

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                                                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 alleging that the Town of

Castleton’s reassignment of their dock space at Lake Bomoseen violated their property

rights. The Town of Castleton moves for summary judgment, arguing that the Henselders

did not possess their original dock space by a deeded property right, but rather a

revocable license. The plaintiffs Robert and Cherie Henselder are represented by

Christopher H. Howe, Esq. The defendant Town of Castleton 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 of law. V.R.C.P. 56(c)(3). In response to

an appropriate motion, judgment must be rendered "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
material fact exists, the court accepts as true allegations made in opposition to the motion

for summary judgment, provided they are supported by 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 arising 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 evidence in the record to support the

nonmoving party's case. The burden then shifts to the 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 “Crystal Haven” development

in Castleton, Vermont, near Lake Bomoseen. They are successors in interest to the same

land and premises originally conveyed by the Castleton Development Commission to

Martin and Margaret Johnson in 1963. The property changed 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 goes to
               the new owner.” The dock space assigned number is 567-
               568. (The dock is not to exceed 4 ft. x 12 ft.)

               The right to dock space and any dock existing on the space
               at the date of this closing is conveyed to the grantee herein
               by this instrument.




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          These clauses did not appear in the original conveyance from the Castleton

Development Commission to the Johnsons in 1963. At no time after that original

conveyance did the Commission or the Town of Castleton (as successor in interest to the

Commission) convey to any of the Henselder’s predecessors in title any further property

interest in the premises or in the surrounding Crystal Haven Development, whether by

deed, easement or any instrument. The only instrument from the Town of Castleton

pertaining to dock space is a document entitled “Agreement 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 permission to erect a dock on the shore of

Lake Bomoseen within the Crystal Haven area. Dock Space # 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 Bomoseen
                 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 and from
                 such dock over such land, road or path, as is likewise
                 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 month’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. BY 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 letter to the Henselders

informing them that the Town would be reassigning existing dock spaces. The

Henselders were switched from old dock space number 567-568 to new space number 55.



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        The Henselders brought this action in July 2008. They 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) without 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 possession. They also request that the

dock space originally assigned to their house lot be merged be forever merged together

with that lot.

        In its Motion for Summary Judgment, Town of Castleton 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 Space.” 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 “Agreement for Dock Space” created an

irrevocable license.

                                      DISCUSSION

        “Conveyance of land or an estate or interest therein 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 at 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 the




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Henselder’s predecessors in title, whether by deed, easement or any instrument. The only

document which pertains to the dock space is the “Agreement for Dock Space,” a

previous version of which was signed by a predecessor in title to the Henselders, and

subsequently by the Henselders themselves in July 2006.

       “A license in real property is an authority or permission 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 other

grounds by Barreca v. Nickolas, 683 N.W.2d 111, 119 (Iowa 2004). It involves the

exclusive occupation of the property, but only so far 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 privilege to

use land in the possession of another; it is generally 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 interpreted from the language used and to the

extent the rules of evidence permit from the surrounding 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 forth 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 was license where under

terms of agreement railroad could revoke licensee’s privileged without consequences).

“Therefore, the licensee’s rights in the property do not rise to the level of a property right,

but instead constitute a revocable privilege to use the property for a specific purpose.” Id.




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Furthermore, the agreement specifically refers to the privilege as a license. See Rowan,

72 P.3d at 897 (stating “[i]n addition, the agreement 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 within 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 between two lots. Id. at

749. The Court stated “a privilege to do certain acts of a temporary character on the land

of another is and always remains a mere license which 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 coupled with an interest are incidental to an

interest in a chattel.” Id. The Court held that such a case was not before it. 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 Jurisprudence relies upon specifically held that

the grant in question was an easement, not a license. 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 consideration to the Town of Castleton for

the license to erect and maintain the dock.




                                                6
       Next, Plaintiffs argue that a license also may become irrevocable where the

licensee makes great expenditures and permanent improvements in justifiable reliance on

the licensor. Plaintiffs also argue that the licensor may be required to compensate the

licensee for his or her expenditures. However, Plaintiffs have presented no evidence as to

expenditures or improvements. Thus, both arguments fail.

       Finally, Plaintiffs argue that the revocation should 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 record to support Plaintiffs’ case. Ross v.

Times Mirror, Inc., 164 Vt. 13, 18 (1995). In light of the Court’s finding that the

“Agreement for Dock Space” constituted a license, Plaintiffs 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 judgment 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



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