Rowe v. Lavanway, No. 1159-02 CnC (Katz, J., Sep. 22, 2004)



[The text of this Vermont trial court opinion is unofficial. It has been
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STATE OF VERMONT                                    SUPERIOR COURT
Chittenden County, ss.:                         Docket No. 1159-02 CnCv




ROWE

v.

LAVANWAY




                       FINDINGS OF FACT,
                    CONCLUSIONS OF LAW AND
                      NOTICE OF DECISION



      This matter was tried to the court September 1, 2004, after a view
on site. On the basis of the evidence presented, and the view where
indicated, the following decision is announced.

                          FINDINGS OF FACT

       1. Plaintiffs Rowe and Banschbach own land and a home
alongside Palmer Lane, Jericho. They seek a declaration that their land is
not burdened with a right-of-way benefitting the lands of LaVanway to
their north.

       2. LaVanway owns a good deal of acreage to the north of Rowe.
He claims a right-of-way extending northerly from Palmer Lane, across
the easternmost lands of Rowe and Banschbach, terminating at and
affording access to his meadow.

      3. LaVanway’s chain of title includes a deed from 1881, Eastman
and Nutting to Brown, containing the following language:

             Said Brown his heirs or assigns are forever to
             have the right to pass through other lands now
             owned by said Eastman and Nutting in the
             lane as it now is in passing to and from the
             land hereby conveyed to said Brown for all
             purposes whatever.
                                 * * *
             We also hereby mean to convey to the said
             Brown the lane about thirty-feet wide on
             the southeasterly side of the land now
             occupied by Levi Nutting as a pasture and
              leading to land now and heretofore owned
              by said Brown, and bounded on the
              southeasterly side by land now belonging to
              Harmon Sherman’s Estate. Said Brown
              agrees to put up all bars in the lane in
              passing to and from the land hereby
              conveyed.

               TO HOLD SAID GRANTED PREMISES WITH THE
              APPURTENANCES THEREOF FOREVER.


(We have used italics to denote what at trial was referred to as the “pink”
language, boldface to denote what at trial was referred to as the “yellow,”
and small caps to denote what at trial was referred to as the “purple.”)

      4. We are persuaded that the boldface (yellow) language just
quoted constitutes the description and grant of the lane at issue in this
case.

 Rowe’s chain of title includes a deed from 1883, Eastman to Nutting,
which describes the parcel therein conveyed with the following language:

              . . . bounded north by land of Rugus Brown,
              east by the lane running north to said Brown’s
              land . . . .

 Many years ago, crude stone walls were erected generally along either
side of the lane. The interior width between those parallel walls is about
22 feet, sometimes less.
       5. LaVanway’s predecessor in title, one Higgins, maintained he
enjoyed the right-of-way, and expressed that view to Bortz, a predecessor
of Rowe. Bortz knew nothing of any such right of Higgins, apparently
believing that if it was not mentioned in his own deed, it must not exist.

        6. Bortz installed a driveway leading to his house site on what is
now the Rowe land. This driveway proceeded northerly down the right-
of-way at issue from Palmer Lane and then curved westward toward the
house. To construct this driveway, and make it suitable and convenient
for automobile passage, Bortz graded the lane in dispute. Where it had
been marked by a gully running down its center, Bortz pushed the earth so
as to flatten it. When he got to the point of curving, Bortz’s excavator,
one Tinker Lamphere, broke through the westerly stone wall, probably
using some of the stones as base material. Some additional quantity of
those stones, from the now destroyed section of wall, were also placed
along the outside of the driveway curve. These were depicted by Bortz in
his “plan view” drawing made on the witness stand. Court’s Exhibit 1.
As so depicted, they might have had the effect of tending to block use of
the right-of-way or constitute an act hostile to passage along it. On a
subjective level, however, there was no evidence that Bortz directed his
excavator to so place the stones. Nor was there any evidence that the
excavator knew anything of the potential dispute between Bortz and
Higgins regarding the right-of-way.

       7. More significantly, those stones did not last very long in that
position. Bortz’s snowplower, one Bobby Clark, found those stones to
interfere with his dispersal of snow. So, with Bortz’s approval, Clark
pushed the stones over the edge of the driveway, down into the gully that
marked the continuation of the disputed lane. This is shown on the
“section view” drawing, Court’s Exhibit 2, accepted by Bortz on the
witness stand and annotated by him to indicate both the “break” in the
stone wall where the driveway proceeds out of the lane and the “Bobby
Clark” stones (agreed by Bortz as the irregularly edged circles).

        8. The effect of this driveway has been to create something of a
berm, impeding travel along the lane if one is coming from the LaVanway
lands to the north, and requiring a drop of perhaps three feet if one comes
from the south, Palmer Lane. This estimate of height comes both from the
view by the court and from photos E2 and E3 which show the
berm/driveway behind plaintiffs’ young daughter, who appears perhaps
three years of age and less than four feet in height. Although the driveway
and berm may constitute something of an impediment to ordinary auto
travel, we are not persuaded that it would block a four-wheel drive
vehicle; indeed LaVanway testified that he drove his Jeep up the driveway
and onto the lane.

      9. The driveway has remained in place well over fifteen years,
perhaps more than 30.

       10. The visual effect of the driveway and berm is precisely that—a
level driveway and sloping base necessary to create it from material found
on the site. That visual effect would not and should not be viewed by the
objective observer as “Bortz is deliberately blocking access along the
lane.”

       11. Bortz noted that when he constructed his driveway, trees along
the lane were perhaps 1½ inch saplings, rendering the way impassable to
vehicles. These trees appeared to be natural forest growth and not the
result of any purposeful planting by people. Such a situation implies non-
use; it also implies fairly recent non-use, as the growth, at the time, was
new.

       12. The northern terminus of the disputed lane was long marked by
barbed wire. But this was part of the enclosure of a significant portion of
what is now the LaVanway meadow, perhaps as large as ten acres.
Coupled with the fact that only a few large trees are located along the lane
and that even 30 years ago Higgins claimed a right to pass along the lane,
hence that the lane continued to be used, we are not persuaded this barbed
wire ever actually prevented access nor would have been viewed as
having that purpose.

                        CONCLUSIONS OF LAW

A.     Creation of the right-of-way by the 1881 deed is supported by a
       preponderance of the evidence.

B.     Mere failure of subsequent grantees in either respective chain to
       include mention of the right-of-way can have no effect on its
       continued validity. Barrett v. Kunz, 158 Vt. 15, 18 (1992).

C.     Mere non-use of the right-of-way does not initiate any loss of the
       right. County of Addison v. Blackmer, 101 Vt. 384, 391 (1928).
       When created by a grant, non-use must be coupled with evidence
       of an affirmative intent to abandon to extinguish the easement.
       Annot. Loss of Private Easement by Nonuse, 62 A.L.R.5th 219, at
       § 3 (1998). Hence, no matter how large or numerous the trees may
     have become, that is an irrelevant fact. It only signals non-use.

D.   We reject plaintiffs’ contention that failure to include words of
     inheritance in the sentence creating the right-of-way renders it a
     mere personal license of Rufus Brown, which would not have
     survived him or which he could not have conveyed. In interpreting
     the 1881 deed, it is our duty to ascertain the intention of the parties
     to it, as best we can. Blackmer, 101 Vt. at 389; Blanchard v.
     Morey, 56 Vt. 170, 174 (1883). The absence of words of
     inheritance in the granting clause is overcome by words in the
     habendum showing that a fee was to be conveyed. Blair v. Blair,
     111 Vt. 53, 57 (1940); Deavitt v. Washington County, 75 Vt. 156,
     161 (1903). In this case, words of inheritance were not used in the
     habendum either, but the word “appurtenances” is. There are only
     two possible appurtenant easements in the deed, the italicized
     (pink) language and the bold (yellow). Both create easements and
     each satisfies the criteria for an easement appurtenant because they
     serve a parcel of land, providing access to it over the servient lands
     of the grantors, and this benefit only ran to Brown, personally, so
     long as he owned the dominant parcels. Barrett, 158 Vt. at 18.

E.   Therefore, to give meaning to the word “appurtenances,” the
     parties must have intended both easements to be appurtenant to
     their respective parcels. This is further supported by the rule of
     construction that an easement appurtenant is favored over one that
     construes the easement in gross. Scott v. Leonard, 119 Vt. 86, 98
     (1956). We conclude that the small caps (purple) language of
     Plaintiff’s Exhibit H16 is that instrument’s habendum clause and
     that the right-of-way or lane must be considered an appurtenance of
     the parcel for which it provides ingress and egress.

F.   As an easement appurtenant without any specific restrictions, the
     right-of-way attached to the dominant land, in this case fee simple
     parcel from Eastman and Nutting, and transferred along with it
     through the chain of title. Restatement of Property § 487 cmt. d
     (1944) (“When once an easement becomes appurtenant to a
     dominant tenement, the easement follows, unless prevented by the
     manner or terms of its creation, the possession of the dominant
     tenement.”); id. at cmt. c (“It can rarely happen that anything in the
     manner of the creation by prescription of an easement appurtenant
     will prevent it from passing with the possession of the dominant
     tenement as an appurtenance thereof.”); see also 4 R. Powell & P.
     Rohan, Powell on Real Property §34.15 (1999) (“. . . it
     accompanies the dominant tenement as an appurtenance thereof, if
     not specifically excluded.”).

G.   When LaVanway’s predecessors, by whose 1881 conveyance this
     lane was created, two years later convey the parcel which
     eventually becomes Rowe and Banschbach’s (plaintiffs’), with
     language referring to right-of-way here disputed as “the lane
     running north to said Brown’s land,” the above conclusions of
     appurtenance and permanence (interest in fee) are bolstered.

H.   To divest the interest of an easement, the holder of the servient
     estate must make clear an intention to work an ouster—in the
     words of the cases must unfurl the flag in a manner which is
     notorious as well as hostile. Darling v. Ennis, 138 Vt. 311, 313–14
     (1980). It must consist of a clear and affirmative blocking of the
     right-of-way. This is measured by an objective view of the conduct
     asserted to constitute a hostile act; the subjective intent or belief of
     the actor (here Bortz) is irrelevant. Pecor Auto Sales, Inc. v. Nesti,
     No. 2000-320, slip op. at 2 (Vt. June 29, 2001) (unpublished
     mem.), citing Russell v. Pare, 132 Vt. 397, 404 (1974); Hilliker v.
     Husband, 132 Vt. 566 (1974); Cardenas v. Kurpjuweit, 779 P.2d
     414, 417 (Idaho 1989); Porter v. Schaffer, 728 A.2d 755, 774 (Md.
     1999); Otto v. Cornell, 349 N.W. 2d 703, 705 (Wis. Ct. App.
     1984). Here, the driveway construction, with its resulting berm,
     must objectively be considered as just that—a driveway with the
     berm of earth necessary to support it. Although it may somewhat
     impede travel along the disputed lane, it is nothing that a few yards
     of fill could not remedy. Its purpose, viewed merely from the site,
     rather than from the witness stand, is simply to create a driveway,
     not to block the dominant estate. Having in mind that that the
     fifteen year period is a statute of limitation, construction of the
     driveway would not have put Higgins (predecessor of LaVanway)
     on notice that Bortz was attempting to oust him from his easement.
     The fact that the stones from the long-standing wall were placed
     first by excavator Lamphere and next by snowplower Clark at their
     own behest, rather than by instruction of Bortz, is interesting, but
     actually irrelevant. It must be the objective manifestation of ouster
     which controls. Here that is insufficient.

I.   There was no limitation on the grantee’s use in the 1881 instrument
     creating the right-of-way. None should be imported because the
     passage of time has seen the replacement of horses by automobiles
     and, sadly, cows by ATVs. Skow v. Goforth, 618 N.W.2d 275,
     278 (Iowa 2000); Hodgkins v. Bianchini, 80 N.E.2d 464, 467
       (Mass. 1948); Swensen v. Marino, 29 N.E.2d 15, 18 (Mass 1940)
       (“We should be very slow to hold that even ancient rights of way,
       not expressly restricted as to the type of vehicle . . . could not be
       employed at all for the means of transportation in common use by a
       succeeding generation.”).

                         NOTICE OF DECISION

       We therefore expect to enter a judgment, suitable for recording,
declaring that the lane in question, 30 feet in width, remains an easement
appurtenant to the lands of LaVanway.

       Dated at Burlington, Vermont, _________________, 2004.




                                            __________________________
                                                                 Judge
