Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal.



                                           ENTRY ORDER

                           SUPREME COURT DOCKET NO. 2015-209

                                       OCTOBER TERM, 2015

 William R. Sawyer-Overlake II, LLC                    }    APPEALED FROM:
                                                       }
                                                       }    Superior Court, Chittenden Unit,
    v.                                                 }    Civil Division
                                                       }
                                                       }
 Gregory Jones and Jessica Jones                       }    DOCKET NO. 984-9-13 Cncv

                                                            Trial Judge: Helen M. Toor

                          In the above-entitled cause, the Clerk will enter:

        This case involves a dispute over a fence owned by defendants that allegedly interferes
with a storm water drainage easement. Plaintiff appeals from the trial court’s summary judgment
decision in favor of defendants.* We affirm.

        Plaintiff sued defendants in September 2013, alleging that it held an easement that
crossed defendants’ land. According to plaintiff, this easement allowed for storm water drainage
across defendants’ land to a storm water detention pond located on a common land portion of the
subdivision. Plaintiff maintained that defendants, or their predecessor-in-title, constructed a
fence around the perimeter of the property subject to the easement, and that the fence blocked
access to the storm water detention pond, thereby preventing plaintiff from undertaking
maintenance and repair to the detention pond.

        Defendants subsequently moved for summary judgment, and plaintiff opposed the
motion. Before ruling on the motion, the court issued an entry order asking the parties to
indicate if a certain map, “The Overlake Subdivision Stormwater Outfall Upgrade Map,”
reflected the current location of the drainage pipe and fence. The parties agreed that it did. In
addition to answering the court’s query, both sides submitted additional facts and materials.

        The court granted summary judgment to defendants in January 2015. At the outset of its
decision, the court noted that plaintiff’s statement of disputed material facts did not comply with
Vermont Rule of Civil Procedure 56, and thus, the court considered all facts asserted by
defendants to be undisputed as long as they were supported by the record. As to the additional
facts and materials submitted in response to the court’s entry order, the court found that neither
side had submitted an updated statement of material facts and plaintiff had not even submitted an


         *
           We emphasize that in the future, counsel must include page numbers in the printed
case’s table of contents. See V.R.A.P. 30(a)(2)(B)(i) (stating that appellant must provide a table
of contents that lists the parts of the record included, with references to the page of the printed
case at which each part begins).
affidavit authenticating the documents it submitted. Because the parties failed to comply with
Rule 56, the court declined to consider the additional factual materials.

       Turning to the merits, the court identified the following undisputed facts. In December
1999, William R. Sawyer and Dream Builders, Inc., conveyed Lot 28 in the Overlake
Subdivision (“the property”) to Tammy Babcock, defendants’ predecessor-in-interest. The 1999
deed described the property as that depicted on a plan of land entitled, “Overlake Subdivision,
Developers, W.R. Sawyer and Dream Builders, Inc., Milton,” which appeared as of record at
Map Slide 298, Map 405 of the Town of Milton Land Records. The deed further provided:

               The within conveyed land is subject to a drainage easement 20
              feet in width leading from the cul-de-sac adjacent to said Lot and
              crossing said Lot to Common Land B as shown on said Plan. Said
              easement is for the transmission of storm water discharge to a
              storm water detention pond located upon Common Land B and
              runs to the benefit of the Town of Milton, its successors and
              assigns.

Sawyer expected that the town would take control of the drainage easement, but the town
declined to do so. In October 2006, Sawyer conveyed the rights and title to his remaining land to
plaintiff via a quitclaim deed. In September 2011, Babcock conveyed her property to defendants
via a warranty deed which included the language above regarding the drainage easement.

        The plan referenced in the deeds in defendants’ chain of title, Map Slide 298B, does not
show a detention pond, but it does indicate the location of a “20 [foot] easement.” The 298B
easement spans from the cul-de-sac to the southernmost boundary line of the property. A map
prepared in June 2013 shows the current location of the drainage pipe, detention pond, and a 20
foot easement encompassing the pipe. This map shows that the drainage pipe was not installed
within the 298B easement. The actual pipe originates farther west along the cul-de-sac and exits
the property along the westernmost boundary line of the property, as opposed to the
southernmost. The fence, which is depicted on the 2013 map, originates at the southwest corner
of defendants’ house and extends southeast, crossing over the drainage pipe. The fence does not
cross over the 298B easement as the fence turns southwest before doing so. Plaintiff asserted
that the easement depicted on the Map Slide 298B was intended to be a pedestrian right-of-way,
but it was never constructed. Neither warranty deed mentions a pedestrian easement.

        The court found both warranty deeds in defendants’ chain of title unambiguous. Both
stated that there was a 20 foot drainage easement crossing the property from the cul-de-sac to
Common Land B “as shown on said Plan.” The deed also referenced Map 298B. Because the
deed language was clear on its face, the court found no need to look to extrinsic evidence. Even
if the court were to consider Sawyer’s statement the easement depicted on Map 298B was for
pedestrian access or that the drainage pipe was already installed as depicted on a different map
submitted by plaintiff—the Overlake Subdivision Milton Plan/Profile—that evidence
contradicted the language of the deeds. The court determined, based on the undisputed material
facts, that the easement depicted on Map Slide 298B was the deeded easement and that the
drainage pipe was supposed to be installed within that easement. The parties agreed on where
the drainage pipe and fence were currently located. Had the drainage pipe been installed within
the 298B easement, the fence would not interfere with it. The court thus concluded that plaintiff
could not meet its burden of showing that the fence interfered with a deeded easement, and it
granted judgment to defendants.

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        Plaintiff moved for reconsideration. Plaintiff asserted that if the 1999 Babcock deed was
read in light of extrinsic evidence, there was an ambiguity. Plaintiff maintained that the 1999
deed should be read in conjunction with the 2006 deed from Sawyer to plaintiff. While the 1999
deed referenced the map at Map Slide 298, the Sawyer deed referenced the map at Map Slide
358. Plaintiff reiterated its contention that the easement depicted on the 298B map was intended
to be a pedestrian easement.

         The court denied the motion to reconsider, finding that plaintiff raised this argument for
the first time in its motion, and that it should have been raised earlier. Even if this argument had
been timely raised, the court stated that it would reach the same conclusion. The court had ruled
that there was nothing ambiguous about a deed referencing a recorded plan and stating that there
was a drainage easement “as shown on said Plan.” There continued to be no reason to look to
extrinsic evidence. The court recognized that “limited extrinsic evidence of ‘circumstances
surrounding the making of the agreement’ [can be considered] in determining whether [a]
writing is ambiguous.” Kipp v. Estate of Chips, 169 Vt. 102, 107 (1999) (citing Isbrandtsen v.
N. Branch Corp., 150 Vt. 575, 579 (1988)). Extrinsic evidence is only relevant, however, when,
in combination with the writing, it supports a different and reasonable interpretation than the one
reached on the writing alone. Id. Plaintiff argued that the drainage easement reserved in the
1999 deed was not located “as shown on said Plan” as referenced in the deed, but rather in a
completely different location,and that the easement designated on the referenced plan was
actually a planned pedestrian right-of-way that was neither reserved through the 1999 deed nor
ever constructed. The court found that this was not a reasonable interpretation but rather an
attempt to “vary the terms of an unambiguous instrument.” Id. The court thus denied plaintiff’s
motion for reconsideration. This appeal followed.

        On appeal, plaintiff reiterates its argument that extrinsic evidence of the circumstances
surrounding the 1999 Babcock deed shows that the deed is ambiguous. Plaintiff again argues
that the easement shown on the map referred to in the Babcock deed was a pedestrian easement.
It maintains that extrinsic evidence shows that the intent of the deed was to locate the easement
in accordance with a design plan approved by applicable governmental authorities. Plaintiff
contends that it is reasonable to interpret the 1999 deed to hold that the reserved easement was
not in fact in the location of the easement shown on the map referenced in the deed. In support
of this argument, plaintiff relies on various documents that the trial court expressly refused to
consider as they were not filed in compliance with V.R.C.P. 56. We similarly do not consider
these materials on review. This includes: a 1998 Stormwater Drainage Permit issued by the State
of Vermont; a site plan prepared by an engineer employed by plaintiff’s predecessor-in-title; a
ruling from the Town of Milton Planning Commission; and an amendment to the declaration of
covenants for the subdivision recorded in the town records. Plaintiff also points to the 2006 deed
from Sawyer to plaintiff, which referred to a plan that showed a 20 foot easement in a different
location than the plan referenced in the Babcock deed.

        We review the court’s decision de novo, and we find no error. See Brault v. Welch, 2014
VT 44, ¶ 11, 196 Vt. 459 (Supreme Court reviews question of whether ambiguity exists de
novo); see also Richart v. Jackson, 171 Vt. 94, 97 (2000) (Supreme Court reviews grant of
summary judgment using the same standard as trial court; summary judgment is warranted when
there are no disputes of material fact and any party is entitled to judgment as matter of law).

        “[I]n interpreting a deed, we look to the language of the written instrument because it is
assumed to declare the intent of the parties.” Kipp, 169 Vt. at 105. “If a writing is
unambiguous . . . , we must enforce the terms as written without resort to rules of construction or
extrinsic evidence.” Brault v. Welch, 2014 VT 44, ¶ 11 (quotation omitted). “A deed term is
                                                 3
ambiguous if reasonable people could differ as to its interpretation.” Id. (quotation omitted).
Notwithstanding the language above, “the determination of ambiguity may also involve
preliminary analysis of the circumstances in which the terms are set.” Id. ¶ 12 (citing Kipp, 169
Vt. at 107 (“We allow limited extrinsic evidence of ‘circumstances surrounding the making of
the agreement’ in determining whether the writing is ambiguous.”)). Such “evidence is relevant,
however, only when, in combination with the writing, it supports an interpretation that is
different from that reached on the basis of the writing alone, and both are reasonable.” Kipp, 169
Vt. at 107. As the trial court recognized, extrinsic evidence “may not be used to vary the terms
of an unambiguous writing.” Id.

        We agree with the trial court that the language of the deeds is unambiguous and that the
interpretation advanced by plaintiff is not reasonable. The deed describes defendants’ property
as that depicted on a plan that appeared in the town land records at Map Slide 298. The
easement is described as that “shown on said Plan.” No other map or plan is referenced in the
deed. There is no mention of an easement for pedestrian access. The only reasonable
interpretation of this language is that the easement is that depicted, as stated, at Map Slide 298.
It does not appear that any of the extrinsic evidence upon which plaintiff now relies was properly
submitted below. To the extent that plaintiff relies on maps prepared or approved in connection
with various government permits, those maps cannot alter the private property rights of the
parties in question. See, e.g., In re Woodstock Cmty. Trust & Housing Vt. PRD, 2012 VT 87,
¶ 40, 192 Vt. 474 (“[T]he Environmental Division does not have jurisdiction to determine private
property rights.”) (citing Nordlund v. Van Nostrand, 2011 VT 79, ¶ 17, 190 Vt. 188). In any
event, we agree with the trial court that plaintiff’s proffered interpretation is not reasonable, and
that his use of extrinsic evidence would serve only to improperly “vary the terms of an
unambiguous writing.” Id.

        Finally, plaintiff argues that defendants were on “actual and inquiry notice” to investigate
the facts surrounding the location of the storm water easement because the location of the pipe
was obvious upon ordinary inspection. Plaintiff did not raise this argument in its opposition to
summary judgment. Instead, plaintiff raised it for the first time in its response to the court’s
January 2015 entry order concerning the actual location of the pipe and fence. Plaintiff asserts
that defendant cannot “disavow” the physical location of pipe. This argument is beside the point.
The allegation raised in plaintiff’s complaint, and the question before the court, was whether
defendants’ fence interfered with a deeded storm water drainage easement. Pursuant to the plain
language of the deed, it did not. Thus, summary judgment was properly granted to defendants.

       Affirmed.

                                                 BY THE COURT:


                                                 _______________________________________
                                                 Paul L. Reiber, Chief Justice

                                                 _______________________________________
                                                 Beth Robinson, Associate Justice

                                                 _______________________________________
                                                 Harold E. Eaton, Jr., Associate Justice


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