NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal
revision before publication in the Vermont Reports. Readers are requested to notify the Reporter
of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109
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before this opinion goes to press.


                                            2020 VT 24

                                           No. 2019-197

Holly Bartlett                                                  Supreme Court

                                                                On Appeal from
   v.                                                           Superior Court, Chittenden Unit,
                                                                Civil Division

John Roberts and LaLauni Rawls                                  October Term, 2019


Helen M. Toor, J.

Brian P. Monaghan and Christian S. Chorba of Monaghan Safar Ducham PLLC, Burlington,
 for Plaintiff-Appellant.

Michael S. Gawne of Cahill, Gawne, Miller & Manahan, P.C., St. Albans, for
 Defendants-Appellees.


PRESENT: Reiber, C.J., Robinson and Eaton, JJ., and Dooley, J. (Ret.) and
         Pearson, Supr. J. (Ret.), Specially Assigned


        ¶ 1.     PEARSON, Supr. J. (Ret.), Specially Assigned. Plaintiff in this quiet-title action

seeks to prohibit defendants from using a road that passes through plaintiff’s property to access

defendants’ adjacent property. The civil division of the superior court granted summary judgment

to defendants because it determined that the route was a public highway established by the town

in 1800 that was never discontinued. We affirm.

        ¶ 2.     The following facts were undisputed for purposes of summary judgment. Plaintiff

Holly Bartlett owns real property consisting of 124.5 acres with a single-family home on Plains

Road in Westford, Vermont. She acquired her property in 2005. In 2017, defendants purchased a

vacant forty-two-acre parcel adjacent to plaintiff’s property. Defendants’ property does not abut
Plains Road. Defendants access their property using an unnamed gravel-and-dirt road that crosses

over plaintiff’s property to Plains Road. For the purposes of this opinion, we refer to the gravel-

and-dirt road as Plains Road Extension.

       ¶ 3.    Plains Road Extension was surveyed and laid out and a description of its breadth,

course, and distance was recorded in the town land records in 1800. However, the road does not

currently appear on the Westford highway map and did not appear on the map as of July 1, 2010.

The existing road crosses plaintiff’s property within the area that corresponds to the 1800

description and continues to a point approximately midway across defendants’ property, where a

trail diverges from the described route.

       ¶ 4.    In September 2009, the town’s Ancient Roads Committee inspected plaintiff’s and

defendants’ properties. The committee noted: “[E]vidence found (road, cars, foundation) from

Plains Road to top of ridge. Not worth retaining.” The town selectboard did not add Plains Road

Extension to the town highway map by July 1, 2015. Plains Road Extension was never designated

as a legal trail and was never formally discontinued by the town pursuant to 19 V.S.A. § 771.

       ¶ 5.    Defendants purchased their property from Robert Krosky, whose family purchased

the land in 1962 or 1963. At his deposition, Krosky testified that his family built a camp on the

property and used Plains Road Extension to access the property. He testified that in the 1960s and

1970s they could drive all the way up Plains Road Extension to their camp using a variety of

vehicles including jeeps, a motor scooter, and a motor home. Other people who were not part of

the family traveled up the road on horseback and on all-terrain vehicles. Krosky testified that there

was a barbed-wire gate across the road at his property line. The family would remove the wire to

access the property when they came up for weekends and replace it when they left. The camp

burned down in 1973 or 1974. After Krosky took ownership of the property from his mother in

1977, he used the property less and did not maintain the road. He testified that he had rarely visited

the property in recent years and the road had become overgrown and difficult to navigate with his


                                                  2
vehicle. Krosky periodically had the land logged to improve the forest. As part of their work on

the land, the loggers would repair the road. The last logging operation occurred in 2012.

       ¶ 6.    Plaintiff’s predecessor-in-interest, Francis Gravel, owned plaintiff’s parcel from

2001 to 2005. Gravel testified in a deposition that he never saw the owner of defendants’ parcel.

He stated that it was “pretty rare” to see anyone else use Plains Road Extension. Once, a hiker

asked his permission to use the road. Another time, he saw a group of women on horses heading

across his property toward Plains Road. Gravel stated that beyond his driveway, Plains Road

Extension was overgrown and not passable by a passenger car, but could be accessed using an all-

terrain vehicle. He was not aware that Plains Road Extension was potentially a town road.

       ¶ 7.    In July 2018, after defendants sought a zoning permit to spread gravel on the road,

plaintiff filed a petition seeking a declaratory judgment that defendants had no right to use Plains

Road Extension.1     After discovery, the parties filed cross motions for summary judgment.

Defendants argued that the above facts demonstrated that Plains Road Extension was a town

highway that was never discontinued and that they had a right to use it to access their property. In

the alternative, they claimed that they had a private right-of-way over the road pursuant to 19

V.S.A. § 717(c) and common law. Plaintiff argued that although the town laid out a road at the

location of Plains Road Extension in 1800, it was discontinued by operation of Vermont’s ancient-

roads law—also known as Act 178—because the town did not include it on the town highway map

by July 1, 2015. Plaintiff further contended that § 717(c) did not apply and defendants did not

have an easement by necessity or a prescriptive easement.

       ¶ 8.    The trial court held that Plains Road Extension was not discontinued by operation

of Act 178 because there was clearly observable physical evidence of its use as a highway and

therefore it was not an “unidentified corridor” to which the Act applied.          See 19 V.S.A.



       1
         Plaintiff did not name the town as a defendant. Neither party briefed the significance of
this omission below or on appeal, so we do not address it in this opinion.
                                                3
§ 302(a)(6)(A). Accordingly, it concluded the road was not automatically discontinued by the

town’s failure to include it on the town highway map by July 1, 2015. The court rejected plaintiff’s

argument that there had to be evidence of public use for the road to be a “highway.” It reasoned

that under 19 V.S.A. § 1(12), it was sufficient for the road to be laid out in the manner prescribed

by statute to qualify as a highway. The court concluded that Plains Road Extension was a town

highway that defendants had a right to use and granted summary judgment in their favor. This

appeal followed.

       ¶ 9.    We review a summary-judgment decision without deference, using the same

standard as the trial court. Tillson v. Lane, 2015 VT 121, ¶ 7, 200 Vt. 534, 133 A.3d 832.

Summary judgment is appropriate only when there are no genuine issues of material fact and the

moving party is entitled to judgment as a matter of law. Collins v. Thomas, 2007 VT 92, ¶ 6, 182

Vt. 250, 938 A.2d 1208; V.R.C.P. 56(a). “In applying this standard, we give the nonmoving party

the benefit of all reasonable doubts and inferences.” Doe v. Forrest, 2004 VT 37, ¶ 9, 176 Vt. 476,

853 A.2d 48.

       ¶ 10.   At issue is whether Plains Road Extension is an “unidentified corridor” that was

discontinued by operation of Act 178. Under Vermont common law, once a town properly laid

out a highway according to statute, it continued to legally exist indefinitely even if it was never

used. Capital Candy Co. v. Savard, 135 Vt. 14, 16-17, 369 A.2d 1363, 1365-66 (1976) (holding

mere abandonment insufficient to discontinue public highway because statutory procedure for

discontinuance must be followed); cf. Lague, Inc. v. Royea, 152 Vt. 499, 501, 568 A.2d 357, 358

(1989) (“We have been clear that an easement acquired by deed cannot be extinguished by nonuse

alone, no matter how long it continues.”). In 2006, following several high-profile disputes between

towns and landowners over title to ancient municipal rights-of-way, the Legislature passed Act

178 “to quell the uncertainty that the existence of ancient roads places on private property rights.”

Town of Bethel v. Wellford, 2009 VT 100, ¶ 7, 186 Vt. 612, 987 A.2d 956 (mem.); see E.


                                                 4
Goldwarg, Note, Known Unknowns: Ancient Roads in Northern New England, 33 Vt. L. Rev.

355, 356-57 (2008) (describing history preceding passage of Act 178).

        ¶ 11.   Act 178 created a procedure for towns to locate “unidentified corridors” and either

discontinue or reclassify them. 2005, No. 178 (Adj. Sess.), § 1. As amended, the Act defined

unidentified corridors as follows:

                Unidentified corridors are town highways that:

                 (i) have been laid out as highways by proper authority through the
                process provided by law at the time they were created or by
                dedication and acceptance; and

                 (ii) do not, as of July 1, 2010, appear on the town highway map
                prepared pursuant to section 305 of this title; and

                 (iii) are not otherwise clearly observable by physical evidence of
                their use as a highway or trail; and

                 (iv) are not legal trails.

2007, No. 158 (Adj. Sess.), § 2 (codified at 19 V.S.A. § 302(a)(6)(A)).

        ¶ 12.   The Act provided that if subsections (i) and (ii) of § 302(a)(6)(A) were met—that

is, if a town had properly laid out a highway but it was not on the town highway map as of July 1,

2010—the town selectboard or its appointee could enter private land to determine whether clearly

observable physical evidence existed. 19 V.S.A. § 302(a)(6)(B). When the town located an

unidentified corridor, it could reclassify it as a class 1, 2, 3, or 4 highway or a legal trail using the

statutory reclassification procedure. Id. § 302(a)(7). If the town did not reclassify an unidentified

corridor by July 1, 2015, the unidentified corridor would be discontinued and the right-of-way

would belong to the owner of the adjoining land. Id. § 302(a)(6)(G). As amended, the Act also

created a procedure for towns to vote to immediately discontinue, on or before July 1, 2010, “all

town highways that are not otherwise clearly observable by physical evidence of their use as a

highway or trail and that are not included as such on the sworn certificate of the description and

measurement of town highways filed with the town clerk on February 10, [2010].” Id. § 305(h).


                                                   5
       ¶ 13.   In this case it was undisputed that Plains Road Extension met the first, second, and

fourth statutory elements for an unidentified corridor: the parties agreed that Plains Road Extension

was properly laid out by the town in 1800, did not appear on the town highway map as of July 1,

2010, and was not a legal trail. However, they disagreed about whether the road was clearly

observable by physical evidence of its use as a highway or trail.2

       ¶ 14.   Plaintiff does not dispute that there is physical evidence of a road of some kind that

runs within the corridor laid out by the town in 1800 from Plains Road to a point approximately

midway across defendants’ property.        However, she argues that defendants only presented

evidence of private use of Plains Road Extension by the former owners of defendants’ property,

and this was insufficient evidence of “use as a highway or trail” to disqualify the road from being

an unidentified corridor. 19 V.S.A. § 302(a)(6)(A)(iii). Plaintiff contends that “use as a highway

or trail” requires evidence of the road’s use by the general public and not just the adjoining

landowners. She further argues that there was no evidence that a town highway was ever

constructed in the location where it was laid out, and that the existing gravel and dirt road looks

more like a logging road than a town highway.

       ¶ 15.   “In cases of statutory interpretation, our review is nondeferential and plenary.”

Benson v. MVP Health Plan, Inc., 2009 VT 57, ¶ 4, 186 Vt. 97, 978 A.2d 33. Our primary goal

when interpreting a statute is to fulfill the intent of the Legislature. Dep’t of Corr. v. Human Rights

Comm’n, 2006 VT 134, ¶ 7, 181 Vt. 225, 917 A.2d 451. To do so, we begin by examining the

language of the statute. Weale v. Lund, 2006 VT 66, ¶ 6, 180 Vt. 551, 904 A.2d 1191 (mem.).

We presume the Legislature intended the plain, ordinary meaning of the language it used. Id.


       2
           Defendants argued, and plaintiff conceded at oral argument, that unmapped town
highways that did have clearly observable physical evidence of use as a highway or trail were not
discontinued by operation of Act 178. In other words, they agreed that if Plains Road Extension
was not an unidentified corridor because it did not meet criterion (iii), it continued to legally exist
as a town highway after 2015 even though the town took no action to reclassify or map it. We
affirmed this interpretation of the law in Doncaster v. Hane, 2020 VT 22, ¶ 22, __ Vt. __, __ A.3d
__.
                                                 6
       ¶ 16.   We hold that the plain language of Act 178 is unambiguous and does not support

the construction urged by plaintiff. Section 302(a)(6)(A)(iii) provides that unidentified corridors

“are not otherwise clearly observable by physical evidence of their use as a highway or trail.” The

provision is clearly designed to exclude from the category of unidentified corridors those legally

existing town highways that show visible signs of use as rights-of-way by persons in vehicles, on

foot, or by other modes of conveyance. We reject plaintiff’s argument that there is an implied

requirement that the physical evidence demonstrate use by the general public, rather than merely

the adjoining landowners, to qualify as “use as a highway.” The identity of the users is irrelevant

because a town highway is a public right-of-way that anyone, including the adjoining landowner,

has a right to use. Okemo Mountain, Inc. v. Town of Ludlow, 171 Vt. 201, 207, 762 A.2d 1219,

1224 (2000).

       ¶ 17.   Our conclusion is supported by the statutory definition of “highway.” Section 1

states that for purposes of Title 19:

                 “Highways” are only such as are laid out in the manner prescribed
               by statute; or roads which have been constructed for public travel
               over land which has been conveyed to and accepted by a municipal
               corporation or to the State by deed of a fee or easement interest; or
               roads which have been dedicated to the public use and accepted by
               the city or town in which such roads are located; or such as may be
               from time to time laid out by the agency or town.

19 V.S.A. § 1(12). The first clause of the definition makes clear that laying out a road according

to statute is sufficient to create a “highway.” Actual construction is not necessary. Id. Once a

highway is laid out according to law, it becomes a public road, and those who use it are using it as

a public road. See Okemo Mountain, 171 Vt. at 208, 762 A.2d at 1225 (stating that “highway” is

synonymous with “public road”). This includes adjoining landowners, who have the same right

to use the road as other members of the public. See id. at 207, 762 A.2d at 1225 (explaining that

abutting landowner has right as member of public to use public road, and private right of access

over road if public access is discontinued).


                                                 7
       ¶ 18.   Contrary to plaintiff’s argument, a public road does not become private merely

because it is only used by a single abutting landowner. There are many town highways that go to

a single home and are used only by that homeowner and guests. Absent formal discontinuation by

the town, such highways remain town highways regardless of the number of people who use them.

Capital Candy Co., 135 Vt. at 16, 369 A.2d at 1365-66.

       ¶ 19.   To require physical evidence of public use of a highway would render Act 178

unworkable and lead to absurd results. It would mean that towns or other stakeholders seeking to

locate unidentified corridors would have to somehow determine whether existing objects or

markings on the ground were public or private in nature—a task that could be nearly impossible,

particularly if the use was infrequent. To the selectperson or surveyor examining a highway, an

old wheel rut or footprint is unlikely to give useful information about the identity of its creator.

The difficulty inherent in such a test is demonstrated by this case: the only evidence of public or

private use is in the form of recollections by various witnesses about who they saw using the road,

which is not “physical evidence.”

       ¶ 20.   Plaintiff claimed at oral argument that Krosky’s testimony that there was a barbed-

wire gate across the road in the 1960s and 1970s at his property line was proof that the road was

not used as a public highway. Neither party presented any evidence that the gate still existed or

that it had existed in the recent past. Even if there was physical evidence of the gate, however, it

would not alter our conclusion because there was evidence that the highway was used as a right-

of-way beyond the gate. Further, Vermont law expressly precludes the acquisition of a legally

existing public highway through adverse possession. See Benson v. Hodgdon, 2010 VT 11, ¶ 14,

187 Vt. 607, 992 A.2d 1053 (mem.) (rejecting argument that public highway may be discontinued

through adverse possession); 19 V.S.A. § 1102 (“A right or interest within the limits of a highway

shall not be acquired by anyone by possession or occupation.”). Under plaintiff’s interpretation of

the law, a savvy adjoining landowner could simply create an unidentified corridor by erecting a


                                                 8
barrier to public access over a clearly observable town highway. The landowner would then be

rewarded with ownership of the right-of-way if the town did not act to reclassify the road by July

2015. See § 302(a)(6)(G) (providing that unidentified corridors are discontinued and belong to

adjoining landowners after July 1, 2015). We doubt that the Legislature intended Act 178 to be

used to avoid the law regarding adverse possession in this manner. Gallipo v. City of Rutland, 173

Vt. 223, 235, 789 A.2d 942, 951 (2001) (explaining that Court’s goal is “to harmonize statutes and

not find conflict if possible”).

        ¶ 21.   Plaintiff claims that her interpretation that public use is required is supported by a

separate provision in Act 178 stating that “[u]nidentified corridors shall be open to use by the

public, but only in the same manner as they were used during the 10 years prior to January 1,

2006.” 19 V.S.A. § 302(a)(6)(C). Plaintiff argues that § 302(a)(6)(C) implicitly recognizes that

some unidentified corridors might be used by the public in some capacity and therefore evidence

of who used the land is important to determining whether it was an unidentified corridor. We

believe plaintiff reads too much into this provision, which directs the interim public use available

on unidentified corridors between the enactment of the statute and the 2015 deadline. The

Legislature was plainly attempting to protect existing public uses of unidentified corridors while

at the same time protecting landowners from unwanted public use of previously unused ancient

roads until the status of those roads was finally determined, whether by discontinuance or

reclassification. The phrase “use by the public” in § 302(a)(6)(C) does not necessarily mean use

“as a highway or trail” and we will not insert those words into § 302(a)(6)(A)(iii).3 See Northfield

Sch. Bd. v. Washington S. Educ. Ass’n, 2019 VT 26, ¶ 15, __ Vt. __, 210 A.3d 460 (“[W]e decline

to take words of one subsection and insert them into another.”).


        3
          Plaintiff also claims, for the first time on appeal, that under § 302(a)(6)(C) there had to
be physical evidence of use within the ten years prior to 2006 to disqualify a road from being an
unidentified corridor. Plaintiff did not raise this argument below and therefore failed to preserve
it for our review. Fletcher Hill, Inc. v. Crosbie, 2005 VT 1, ¶ 20, 178 Vt. 77, 872 A.2d 292
(“[I]ssues raised for the first time on appeal will not be considered by this Court.”).
                                                    9
        ¶ 22.   Plaintiff also argues that the “clearly observable by physical evidence of its use”

standard is drawn from Vermont’s Marketable Title Act, and that by adding the requirement of use

“as a highway or trail” in Act 178, the Legislature must have intended that the use be public in

nature. We find plaintiff’s argument unpersuasive. The Marketable Title Act provision cited by

plaintiff states that failure to record notice of an interest, lien, or claim against real property shall

not extinguish “any easement or interest in the nature of an easement, the easement, the existence

of which is clearly observable by physical evidences of its use.” 27 V.S.A. § 604(a)(6). This

provision applies to any easement that is clearly observable by physical evidence of its use,

whether it is a power line, a septic pipe, or something else. The likely explanation for the

Legislature’s decision to add the term “as a highway or trail” to the similar phrase in Act 178 was

that it wished to clarify that only use of a highway as a right-of-way would disqualify that highway

from being an unidentified corridor. Evidence of other uses—for example, if the adjoining

landowner used the land as a garden—would not remove the highway from that category.

        ¶ 23.   Plaintiff contends that Plains Road Extension could not have been used as a

highway because there is no physical evidence that the town ever constructed a highway within

the route it laid out in 1800. However, Act 178 does not require a road to have actually been

constructed by the town at some point for it to be “use[d] as a highway or trail.” As discussed

above, it is sufficient for the route to have been used as a right-of-way by the public. Further, the

statutory definition of “highway” lists several different ways to create a highway. 19 V.S.A.

§ 1(12). Constructing a road is one way, but it is not the only way: it is sufficient for a highway

to have been laid out according to law for it to legally exist. Id. If the Legislature intended to limit

the applicability of Act 178 to ancient roads that had actually been constructed by towns, it could

have said so. In the absence of a clear instruction to the contrary, we presume the Legislature

intended the usual meaning of “highway” set forth in Title 19. See Northfield Sch. Bd., 2019 VT

26, ¶ 15 (stating this Court presumes Legislature chooses words advisedly).


                                                   10
       ¶ 24.   We also reject plaintiff’s argument that Plains Road Extension could not have been

used as a highway because it resembles a logging trail rather than a town highway. A right-of-

way does not lose its legal status as a highway merely because the town has failed to maintain it

or because it is impassable by a standard passenger car. See Benson, 2010 VT 11, ¶ 15 (explaining

“discontinuance of a road requires an affirmative act on the part of the town, more than passive

abandonment or acquiescence to another use”). Under Vermont law, a town highway can be

anything from a paved multilane roadway to an unmaintained dirt track.             See 19 V.S.A.

§ 302(a)(1)-(5) (providing for class 1, 2, 3, and 4 highways and legal trails, with differing

maintenance requirements). While towns must maintain class 1, 2, and 3 highways to a certain

standard, towns have discretion whether to maintain and repair class 4 highways and are not

obligated to maintain trails at all. Town of Calais v. Cty. Rd. Comm’rs, 173 Vt. 620, 621, 795

A.2d 1267, 1268 (2002) (mem.) (holding town has discretion whether to maintain and repair class

4 highways); 19 V.S.A. § 310(b)-(c) (providing town “may” maintain class 4 roads and is not

obligated to maintain legal trails). How a road appears, and whether it is maintained, therefore are

not determinative of whether it was used as a highway.

       ¶ 25.   Finally, plaintiff argues that the court lacked authority to overturn the decision of

Westford’s Ancient Roads Committee to not include Plains Road Extension on the town highway

map, “particularly without any input from that committee or Westford’s Selectboard.” As noted

above, plaintiff did not name the town as a defendant. Having failed to do so, she cannot now

claim error based on the court’s failure to hear from the town. See State v. Longe, 170 Vt. 35, 39

n.*, 743 A.2d 569, 572 n.* (1999) (explaining that party may not “induc[e] erroneous ruling and

later seek[] to profit from the legal consequences of having the ruling set aside” (quotation

omitted)). Moreover, as the court found, the road was not an unidentified corridor to which Act

178 applied. The town’s failure to include it on the town highway map by 2015 therefore had no




                                                11
effect on its status as a town highway. If the town wished to discontinue it, it had to follow the

normal statutory procedure.

       ¶ 26.   It was undisputed that Plains Road Extension was a highway laid out by the town

in 1800 that was never discontinued and that there was clearly observable physical evidence of its

use to a point midway onto defendants’ property. The trial court therefore properly concluded as

a matter of law that the highway was not an unidentified corridor that was discontinued by

operation of Act 178, and correctly granted summary judgment to defendants.4

       Affirmed.

                                               FOR THE COURT:



                                               Superior Judge (Ret.), Specially Assigned




       4
          Defendants moved to strike from plaintiff’s brief two law review articles, the text of Act
178, and the text of a subsequent act amending Act 178. While it is true that such materials were
not part of the record below and properly should have been presented, if at all, in an appendix to
the printed case, they are all legal resources that were appropriate for review by this Court on
appeal. See Reporter’s Notes, V.R.E. 201. The motion is therefore denied.

        We also deny the request made by plaintiff in her reply brief to strike Section V of
defendants’ brief, which addressed their alternative arguments that they had a private easement to
use Plains Road Extension. Contrary to plaintiff’s argument, defendants preserved these claims
for our review by raising them below. However, we need not reach them because we affirm the
court’s conclusion that the road is a town highway that was not discontinued by Act 178.
                                                12
