Worth v. Gonyaw, No. 49-3-06 Oscv (Tomasi, J., Dec. 21, 2011)

[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                                                                             CIVIL DIVISION
Orleans Unit                                                                               Dkt No. 49-3-06 Oscv


Thomas J. and Sandra Worth,

           Plaintiffs,

v.

Ronald and Edith Gonyaw,

           Defendants.


                    Findings of Fact, Conclusions of Law, and Order

           This matter came before the Court for a trial on August 15 and 22,

2011. Both parties appeared and provided documentary and testimonial

evidence. Both were represented by able counsel. Post-trial memoranda

were also filed by the parties.

           The remaining1 disputes between the parties focus on the ownership of

a narrow strip of land, the location and width of a right-of-way that crosses



1 A number of additional issues divided the parties at the beginning of this
case. Those issues have been resolved by agreement or concession. At trial,
Plaintiffs conceded two issues. First, they conceded that, through adverse
possession, Defendants have acquired ownership of the parcel of land that
lies within the lines formed by joining marker M6 (to the southeast), marker
M7 (to the northeast), the point roughly midway between markers M7 and
M32 (to the northwest), and marker M4 (to the southwest). See Exhibits 3 &
A. Second, Plaintiffs agreed that that Defendants have ownership of a right-
of-way to use a parcel of land that is known as the “short drive” and that
allows Defendants direct access to East Echo Lake Road. See Exhibits EE &
FF (conveying such a right-of-way in Defendants’ chain of title); Exhibits 3
and A (showing such a driveway with a dotted line); Exhibit H (picture of
that land, and whether Plaintiffs have acquired a prescriptive easement to

use a portion of the right-of-way. Based on the evidence submitted at trial,

the Court makes the following Findings of Fact and Conclusions of Law.

                               Findings of Fact

      1.     Both parties own land near Echo Lake in Charleston, Vermont.

Plaintiffs have resided in New York and Florida but are frequently at their

property on weekends, for some weeks in the summers, and for portions of

the winters. Defendants bought land near the lake in 1987 and built a home

on that land in 1990. They moved there on a permanent basis in 1998.

      2.     The land both parties own (and adjacent properties) was

previously owned by members of Plaintiff’s2 family. Plaintiff’s connection to

the land is strong and longstanding. He has been visiting the area for over

sixty-five years. He has been going there either for visits or to stay for

extended periods his whole life.




short drive). For their part, Defendants conceded that they make no claim
and renounce any claim to ownership of any of Plaintiffs’ lands or to
Whitcomb Lane easterly of the line formed between markers M7 and M30.
The parties agree, however, that Defendants retain a right-of-way over
Whitcomb Lane, east of that same line, to access their land from East Echo
Lake Road. Any revised deeds or documents prepared at the end of this case
should reflect those concessions.

2For ease of reference, the Court will sometimes refer to Plaintiff and
Defendant in the singular. In those instances, the references will be to
Thomas Worth and Ronald Gonyaw, respectively.

                                        2
      3.      There is no dispute that from 1943 to 1970, Plaintiff’s

grandparents, Joel and Ila Whitcomb, owned the land on which the

northwesterly portion of Defendant’s home is situated. Exhibit JJ & II.

      4.      The Whitcombs sold the land to their daughter, Erma Worth, in

1970. Exhibit II. Erma Worth was Plaintiff’s mother.

      5.      Erma Worth sold the land to Sharon Morehead in 1979. Exhibit

HH. Ms. Morehead was Plaintiff’s sister-in-law.

      6.      Ms. Morehead sold the land to Plaintiffs in 1983. Exhibit GG.

      7.      Plaintiffs sold the property to William and Louise Hill in 1984.

Exhibit FF.

      8.      The Hills sold the property to Defendants in 1987. Exhibit EE.

      9.      The property sold to Defendants contained a deeded right-of-way

that would allow access to the parcel from East Echo Lake Road. The precise

location and width of the right-of-way was not specified in the deed. Id.

Other property owners to the southwest of the parties’ land—currently, the

Wagners and the Slasons—also use the right-of-way to access their parcels.

Plaintiff has no deeded right to use Whitcomb Lane to the west of marker

M6.

      10.     The parties do not dispute that Whitcomb Lane has functioned

as the right-of-way described in the preceding paragraph. Cf. Exhibits 3 & A.

They do dispute the rightful location and width of the right-of-way to the

west of marker M6. Plaintiff asserts that the existing Whitcomb Lane is the




                                        3
proper location of the right-of-way at that point and that its width should

vary between 10 and 16 feet as it progresses to the southwest. Plaintiff

concedes that the travelled portion of the road may have moved

northeasterly, i.e, closer to Defendants’ property, over the years. But,

Plaintiff believes the Lane has moved no more than approximately six inches

in that direction. Defendant agrees that the travelled portion of Whitcomb

Lane has moved closer to his property over the years. He claims, though,

that it has moved somewhere between six and twelve feet. He would like to

move the travelled portion of Whitcomb Lane roughly 2 feet closer to the lake

and would like to set the width of the right-of-way at 12 feet.

      11.    The deeds provide little guidance as to the parameters of the

right-of-way. The right-of-way is referred to in Defendants’ deed, but it is not

set with particularity. See Exhibit EE (right-of-way runs across “the existing

roadway”). Some earlier deeds describe the right-of-way as being 12 or 16

feet wide.

      12.    In an attempt to establish the bounds of the right-of-way, both

parties and a number of witnesses testified at trial as to the historic location

of the travelled portion of Whitcomb Lane. The testimony was not consistent.

The Court believes that all of the witnesses testified honestly. The Court

ascribes the variances among their testimonies more to faulty memories as to

the precise location of a very short sweep of a tire-track road, than to any

intentional misrepresentations. Given the Court’s ultimate resolution of this




                                        4
matter, it need not fully resolve the differences between the testimony of the

witnesses on this point. For purposes of this opinion, the Court finds that, for

the fifteen years that preceded the filing of this lawsuit and to a point twenty

feet to the southwest of marker M6, the current travelled portion of

Whitcomb Lane has remained relatively consistent.

         13.   Until a survey was completed in or about 2004, the testimony

shows that Plaintiffs did not dispute that Defendants’ parcel (the “Gonyaw

Parcel”): (a) included the land to the north and northeast of a line that runs

ninety feet from and roughly parallel to the shoreline of Echo Lake, i.e., from

marker M11 to marker M36; and (b) had a northeastern boundary that ran

from marker M7 to marker M11. See also Exhibit M, at 60. This included a

strip of land that contains Whitcomb Lane and that is today bounded

approximately by a stone wall and the northerly property line of a parcel

owned by the Slason family. See Exhibits 3 & A. Specifically, this narrow,

rectangular parcel of land (the “Strip”) is bounded by markers M4 to M6 to

M11 to M36. Ownership of the Strip was the central question at issue in the

trial.

         14.   At trial, Plaintiff conceded that, until a 2004 survey was

completed, he believed the Gonyaws owned the Strip. See also Exhibit M, at

60. Indeed, while the testimony is disputed, the Court finds that a few

months after Defendant purchased the parcel, Plaintiff walked a portion of

the land with Defendant and Plaintiff pointed out the rough bounds of the




                                         5
Gonyaw Parcel. The approximate boundaries shown by Plaintiff placed the

Strip within the Gonyaws’ property.

      15.    Further, there was earlier litigation relating to this subject

between the Gonyaws and the Slason family’s predecessors in title—the

Shafer-Painter families. In part, that case concerned the lakeside boundary

of the Gonyaw Parcel. The parties in that action disputed which of them

owned a portion of the Strip. Plaintiff testified in that case in favor of the

Gonyaws. He averred that Defendants owned the land under Whitcomb Lane

and the grassy portion of the Strip to the lakeside of Whitcomb Lane. See

Exhibit I, at 110–11. The dispute eventually ended with the establishment of

a property line between the Gonyaw property and the now-Slason property

that follows markers M36 to M11. In other words, as between the Slasons

and the Gonyaws, the Gonyaws own the Strip.

      16.    Other evidence also supports the conclusion that, until at least

2004, all relevant parties believed Defendants owned the Strip. An affidavit

from Plaintiff in the Shafer-Painter litigation indicates his understanding

that Whitcomb Lane previously “was owned” by Plaintiff. In context, this

plainly shows that Plaintiff believed he no longer owned the land at the time

the Affidavit was executed. Exhibit J. Similarly, an affidavit from Erma

Worth indicates that she used to own a sixteen foot piece of land under and

adjacent to Whitcomb Lane and that she believed it had passed to Ms.

Morehead when Erma Worth sold the land to Ms. Morehead in 1970. Exhibit




                                        6
K. The parcel sold to Ms. Morehead is the same parcel that was eventually

acquired by the Gonyaws. Exhibit EE.

      17.    Defendant maintained at trial that he always believed he had

purchased and owned the Strip. He testified that the realtor who showed

Defendants the property indicated that the Strip was part of the parcel

Defendants were purchasing.

      18.    Defendant also testified at trial that he maintained the Strip.

He mowed and maintained the small grassy section adjacent to the stone

wall. Defendant was principally responsible for removing snow from

Whitcomb Lane but other adjacent owners also assisted with that task.

Plaintiff noted that he had seen Defendants pack snow to the northerly side

of Whitcomb Lane to protect the stone wall from damage. Defendant made

repairs to the roadway as well. Defendant further testified that he mowed

and maintained the grassy section between the Slasons’ property and

Whitcomb Lane. Plaintiff admitted that Defendants had raked the Strip.

See Exibit LL (depicting raked area). Defendant conceded that Plaintiff had

also removed snow from Whitcomb Lane sometimes and had made occasional

repairs to Whitcomb Lane. He also noted that Plaintiff had done some

mowing within the Strip, but only after the filing of this lawsuit.

      19.    In addition, Defendant testified that he and his family had

consistently exercised control over the Strip. For example, Defendants

removed a fence and shrubs that had been erected by the Slasons’




                                       7
predecessors-in-interest on the land to the lakeside of Whitcomb Lane. See

Exhibit SS (depicting area where fence and shrubs were located). Plaintiff

testified that the Defendants often drove over the grass in that same area.

Plaintiff also noted that the Defendants had created a drainage ditch that

passed through the Strip. See Exhibit 13(b).

      20.    Plaintiff did not suggest that he had been principally

responsible for maintaining Whitcomb Lane and did not contest that the

Gonyaws, the Slasons, and the Wagner family had done that work. Plaintiff

stated that he did sometimes plow or snow blow the travelled portion of the

Lane and had made some repairs to it over the years. He conceded, however,

that he is in Florida for a period of time in the winter. Plaintiff also admitted

that he had placed some boulders and shrubs on the lake side of Whitcomb

Lane approximately four years ago.

      21.    Plaintiff indicated at trial that he uses a portion of Whitcomb

Lane to the southwest of his property as a turnaround area for his vehicles.

Plaintiff stated that his parking area is just adjacent to the Slason property.

To get out of the parking area, Plaintiff testified that he sometimes backs

into Whitcomb Lane before proceeding forward toward East Echo Lake Road.

The testimony does not reflect precisely how often Plaintiff has made this

maneuver, but Plaintiff testified that he has exited his property in this way

since 1984. Defendant testified that he has seen Plaintiff leave Plaintiff’s




                                        8
property in this manner.3 Plaintiff indicated that he uses roughly thirty feet

of Whitcomb Lane to the southwest of marker M6 to perform this turnaround

maneuver. Plaintiff stated that his principal vehicle is 6 feet wide.

      22.    A survey conducted in or about 2004 changed Plaintiffs’ view as

to whether they owned the Strip. Indeed, trial evidence offered by surveyors

and a review of the deeds that correspond to the properties at issue show a

different northeasterly boundary for the Gonyaw Parcel than was historically

understood by the parties. To be precise, a deed conveying a triangular piece

of land to Plaintiffs in or about 1970 sets the boundary line of what is today

Plaintiffs’ property further to the northwest than the line formed by markers

M6 to M7. See Exhibit 6. (The triangular parcel is also recognized, without

exact description, in Defendants’ chain of title. See, e.g., Exhibit EE.) The

trial testimony of Plaintiff and Plaintiffs’ expert, Shane Clark, indicates that

such a revised property line would go directly through Defendants’ home. See

Exhibit 3 & Exhibit A (both depicting the revised property line as a dotted

line). It would also mean that most or all of the Strip remained under the

ownership of Plaintiffs. See Exhibit 3 & Exhibit A.

      23.    Such a result is inconsistent with the common understanding of

Defendants; of the prior owners of the land now owned by the Gonyaws, see

Exhibit K; and, at least until 2004, of Plaintiff. It is also inconsistent with


3Although Plaintiff stated that he sometimes uses Whitcomb Lane to visit
the Wagner family at the end of the Lane, he made no claim at trial to any
prescriptive use of the right-of-way to the southwest of marker M6, other
than in connection with turning around his vehicles.

                                        9
the deeds in Defendants’ chain of title. For example, in 1984, Plaintiffs

conveyed the Gonyaw Parcel to the Hills. Exhibit FF. The deed also

conveyed a right-of-way. (The same right-of-way was later conveyed by the

Hills to the Defendants. Exhibit EE.) The right-of-way is noted to cross the

“northwesterly corner” of Plaintiffs’ property to give access from the Gonyaw

Parcel to East Echo Lake Road. If the northwesterly property line of

Plaintiffs’ land were as specified in Exhibit 6, the right-of-way described in

Exhibits EE and FF would not cross the “northwesterly corner” of Plaintiffs’

property. Moreover, that deeded right-of-way would not even reach the

Gonyaw Parcel. The right-of-way would end in the middle of Plaintiffs’

property.

      24.    Given the inconsistency between Exhibit 6 on the one hand, and

Exhibits EE and FF, and the parties’ understandings on the other,

Defendants’ expert, Carroll Peters, opined that he believed there was a

scrivener’s error in Exhibit 6. He testified that the deed incorrectly identified

the northwesterly boundary of Plaintiffs’ lot as being the “western” boundary

of an adjacent lot. If, instead, the “eastern” boundary of the adjacent lot is

substituted as the reference point, the Plaintiffs’ northwesterly boundary line

would lay between markers M7 and M11 and would correspond to the

historical understandings of the parties described above.




                                       10
                            Conclusions of Law

      I.       Ownership of the Strip

      The deeds at issue in this case are not models of clarity. Boundary

lines of parcels are sometimes incorporated from other deeds without precise

description. Rights-of-way are sometimes “reserved” and not sold; other

rights-of-way are not set with any particularity. For instance, Defendants

have a deeded right-of-way in the general area of what is now called

Whitcomb Lane, see Exhibit EE, but the proper location of the right-of-way is

not defined.

      Defendants’ principal claim to the Strip is not based on any deed but

on adverse possession.4 As discussed below, the Court concludes that the

Gonyaws have acquired ownership of the relevant portion of the Strip though

adverse possession.

      Adverse possession requires consistent use of property by claimant

over an extended period of time. “To achieve title through adverse

possession, a claimant must demonstrate that possession of the land was


4 As noted in Finding 24, Defendants claimed at trial that there was an error
in Exhibit 6 that resulted in a property line running through their home.
Defendants suggested that the deed might be reformed to modify the alleged
error. Due to the numerous issues raised by such a request, see, e.g., Morse v.
Murphy, 157 Vt. 410, 411–12 (1991), the Court asked for post-trial legal
arguments from defense counsel as to whether a deed may be reformed or re-
written under the circumstances presented in this case. Defendants
submitted no such support and, thus, have abandoned the claim that the
deed be re-written. This may well be because Plaintiffs do not contest that
Defendants’ northeasterly property line has, through adverse possession,
moved to the position sought by Defendants, at least as regards the land
formerly in dispute to the north of the line formed by markers M4 and M6.

                                      11
open, notorious, hostile and continuous throughout the statutory period of

fifteen years.” N.A.S. Holdings, Inc. v. Pafundi, 169 Vt. 437, 440 (1999)

(citing 12 V.S.A. § 501).

      Here, the Court finds all of the elements of adverse possession have

been satisfied. There is no question that the Gonyaws have been using the

Strip since 1987. The 15 year requirement is met.

      Their use has been open and notorious. “Acts of possession are deemed

sufficiently open and notorious if they are conducted in a manner which

would put a person of ordinary prudence on notice of the claim.” Deyrup v.

Schmitt, 132 Vt. 423, 425 (1974). In this instance, the Gonyaws consistently

maintained, mowed, removed snow from, and made repairs to the Strip.

While others also did some plowing of Whitcomb Lane (as might be expected

with a common right-of-way), and Plaintiff made some repairs, the evidence

supports the conclusion that the Gonyaws were the principal caretakers of

the Strip and did the mowing.5

      In addition, when one of the Slasons’ predecessors-in-interest erected a

fence and planted shrubs in the portion of the Strip closest to the lake, the

Gonyaws acted to protect their interest. They removed the fence and the

plants, thereby proclaiming their ownership of the parcel. Moreover,

Defendants drove on the grassy portion of the Strip and dug a drainage ditch



5The Court acknowledges that Plaintiff also did some mowing in recent
years, but that did not occur until after the 2004 survey and the passage of
the prescriptive period.

                                       12
over a portion of it. As the Court described in Pafundi, 169 Vt. at 441, the

Gonyaws “unfurled their flag” on the Strip so the world could see they owned

it.

      Indeed, the Gonyaws’ use was consistent with Plaintiff’s long-held

understanding regarding the ownership of the lot. The evidence provided by

a past owner and by Plaintiff himself is that all believed the Strip belonged to

Defendants. See, e.g., Exhibit I, at 110–11; Exhibit J; Exhibit K.

      Even if both Plaintiff and Defendant were mistaken as to the actual

location of the property lines, that fact does not defeat a claim for adverse

possession. See Zuanich v. Quero, 135 Vt. 322, 325–26 (1977) (property

acquired by adverse possession despite “mistaken belief” that property

belonged to claimants); Kendall v. Selvaggio, 602 N.E.2d 206, 209 (Mass.

1992) (“[P]ermissive use based on a mutual mistake as to the location of a

boundary line will not defeat a claim of adverse possession.”).

      Given their consistent maintenance and use of the Strip over the years,

the Gonyaws were in actual possession of the Strip for the required statutory

period.6



6 Even assuming the Gonyaws’ use of the Strip did not constitute actual
possession, they still would be entitled to possess the Strip adversely. Given
their complete occupation of the portion of the land northerly of the stone
wall, they would be able to claim “constructive possession” of the remainder
of the land within the Strip. Pafundi, 169 Vt. at 441. Based on the
understandings of the parties and of a prior owner, and the fact that Plaintiff
and the realtor who sold the property to Defendant identified the area in the
Strip and the area north of the stone wall to Defendant as being a part of
Defendant’s property, the Court finds that the Gonyaws held that property

                                       13
      One possible bar to adverse possession in this case is the exclusivity

requirement. Adverse possession typically demands that the claimant

establish that his possession of the property at issue was “exclusive.” See

Schonbek v. Chase, 2010 VT 91, ¶ 8, available at

http://info.libraries.vermont.gov/supct/current/op2009-292.html. In this case,

for a period of time, the Gonyaws and the prior owners of the current Slason

property disputed the location of their common property line. As noted

above, one of those prior owners installed a fence and shrubs, the Gonyaws

removed them, and the dispute went to litigation.

      The Court finds the disagreement between the Gonyaws and the prior

owners of the Slason property does not defeat the adverse possession claim.

While that property dispute might be relevant if the Gonyaws were asserting

adverse possession against the Slasons, it is insufficient to defeat an adverse

possession claim against Plaintiff. For that claim, the relevant question is

whether the Gonyaws exercised dominion over the Strip—as regards

Plaintiff—for fifteen years. As discussed above, they did.

      Case law supports that conclusion. In Stump v. Whibco, a New Jersey

court held that Stump’s adverse possession of the disputed property was not

interrupted when a third party occupied the land in question. 715 A.2d 1006,

1011–12 (N.J. Super. Ct. App. Div. 1998). The court reasoned that: “When a



“under color of title.” Id. at 441 n.3 (defining “color of title”). That conclusion
allows the Gonyaws to claim adverse possession of the Strip through
constructive possession. Id.

                                        14
third party, one who is neither the true owner nor the adverse possessor,

interferes with possession, it seldom constitutes an interruption of

possession.” Id. (citing 7 Powell on Real Property § 1013[2], at 91-26). The

Court reviewed a number of adverse possession decisions and noted that the

“[t]he critical point seems to be, not that a third, unrelated party has or has

not excluded the putative adverse possessor from the land; but that the true

owner has not acted in such a manner as to reclaim it.” Id. As a result, the

activities of the third party did not defeat the adverse possession claim.   The

same is true here. See also Bentley Family Trust v. Lynx Enterprises, Inc.,

658 P.2d 761, 766 (Alaska 1983) (adverse claimant’s actions in leasing land to

third party and excluding others from land when its interest was threatened

constituted sufficient acts of ownership).

      Likewise, Plaintiff’s sporadic visits down Whitcomb Lane and his

plowing and repairing efforts on the travelled way are not fatal to

Defendants’ adverse possession claim. Possession need not be absolutely

exclusive to amount to adverse possession. “The purpose of the requirements

for adverse possession is to put the true owner on notice of an adverse

possessor’s claim. Towards this end, the exclusivity and continuity of an

adverse possessor’s use of a disputed area must only rise to that level that

would characterize an average owner’s use of similar property.” Tenala, Ltd.

v. Fowler, 921 P.2d 1114, 1119 (Alaska 1996); see Jarvis v. Gillespie, 155 Vt.

633, 638–39 (1991) (“The ultimate fact to be proved in an adverse possession




                                       15
case is that the claimant has acted toward the land in question as would an

average owner, taking properly into account the geophysical nature of the

land.”).

       In Smith v. Hayden, for example, the Colorado Supreme Court stated

that “a mere casual entry for a limited purpose by the record owner is not

necessarily sufficient to prove that the use of the property was joint” and,

thus, nonexclusive. 772 P.2d 47, 52 (Colo. 1989). There, the record owner

occasionally crossed the disputed parcel to obtain access to a separate piece of

his property, his children occasionally played there, and he may have stored

lumber on the disputed parcel. Id. at 53–54. The court held that these

occasional uses did not destroy the exclusive possession of the adverse

claimants. See id. at 54; see also Pueblo of Santa Ana v. Baca, 844 F.2d 708,

713 (10th Cir. 1988) (“Interruptions in use of the property must be equivalent

in force to the possession to defeat adverse possession. Certainly occasional

entries by the title owner are insufficient to interrupt the adverse

possession.”).

       In this case, the evidence shows that throughout the relevant period,

Plaintiff believed that Defendants owned the property in question. Plaintiff

offered no testimony that his infrequent use of the right-of-way to visit

friends or his plowing and repairing efforts during that period were meant, in

any way, to assert his ownership over the land. Instead, it appears such

activities were merely neighborly efforts to maintain a driveway used by a




                                       16
number of families. Under such circumstances, and in light of the above case

law, the Court finds that Defendants’ use and occupation of the Strip was

sufficiently exclusive to establish their claim for ownership of the Strip

through adverse possession.

       II.   Plaintiff’s Claimed Prescriptive Easement Over
             Whitcomb Lane

       Based on his prior usage, Plaintiff claims a prescriptive easement to

use a portion of Whitcomb Lane to the west of marker M6. Plaintiff has a

driveway next to the Slason property. Plaintiff asserts that he backs his

vehicles into Whitcomb Lane from that driveway before heading toward East

Echo Lake Road. He claims that this conduct gives him a prescriptive right

to continue to use Whitcomb Lane as a turnaround for his vehicles.

       The elements for obtaining an easement by prescription are similar to

those of adverse possession. In re Town Highway No. 20 of Town of Georgia,

2003 VT 76, ¶ 22, 175 Vt. 626 (mem). “To successfully claim an easement

through prescription, there must be open, notorious, continuous and hostile

use of a right-of-way for fifteen years.” Wells v. Rouleau, 2008 VT 57, ¶ 8, 184

Vt. 536 (mem.). Unlike adverse possession, a claimant need not establish

that his use of the property was exclusive. See Schonbek v. Chase, 2010 VT

91, ¶ 8.

       Here, the Court finds that Plaintiff has established a claim to a

prescriptive easement. The Court has no problem concluding that the

Plaintiff’s use of Whitcomb Lane was adverse, open and hostile. Plaintiff did



                                       17
not obtain Defendants’ permission to use the Lane. See Hilliker v. Husband,

132 Vt. 566, 568 (1974) (“In the absence of permission, the use of an

established claim of right firmly establishes the hostility of that use.”).

Defendant testified that he was aware Plaintiff had used Whitcomb Lane as a

turnabout for his vehicles. “A prescriptive claimant’s use of a driveway

openly in the presence and with knowledge of record owners is sufficient to

establish open, notorious and hostile use.” Id.

      Likewise, the evidence shows that Plaintiff has been reversing the

direction of his vehicles on Whitcomb Lane since 1984. The fact that

Plaintiff’s use of Whitcomb Lane was somewhat seasonal does not defeat his

claim for a prescriptive easement. See Wells, 2008 VT 57, ¶ 20 (neighbor’s

seasonal use of driveway did not preclude finding of unlimited prescriptive

easement to use driveway). Nor did Defendant offer any evidence suggesting

that Plaintiff’s use of Whitcomb Lane was merely sporadic. Cf. First

Congregational Church v. Manley, 2008 VT 9, ¶ 17, 183 Vt. 574 (infrequent

lawn mowing insufficient to establish adverse possession) (mem.); Adams

Family Properties v. Tomasi, No. 2009-480 (Vt. Aug. 18, 2010) (unpublished

mem.), available at http://vermontjudiciary.org/d-upeo/upeo.aspx (sporadic

use insufficient to establish prescriptive easement).

      The Court also concludes, however, that the scope and extent of the

prescriptive easement is not as broad as claimed by Plaintiff. A prescriptive

easement is narrowly defined. See Flaherty v. Muther, 17 A.3d 640, 661 (Me.




                                        18
2011); Price v. Eastham, 254 P.3d 1121, 1126 (Alaska 2011) (both citing

Restatement (Third) of Property, Servitudes § 4.1(1) (2000)). As the Vermont

Supreme Court noted in Dennis v. French, the extent of a prescriptive

easement “is determined by the user, upon which is founded the presumed

grant; the right granted being only co-extensive with the right enjoyed.” 135

Vt. 77, 80 (1977) (emphasis omitted).

      Plaintiff claimed at trial that he uses thirty feet of the Lane to the

southwest of marker M6 and, in his post-trial memorandum, seeks a

prescriptive easement of fifty feet. Neither distance is credible. Given the

Plaintiff’s description at trial of how he reverses his vehicles in Whitcomb

Lane, the Court believes it more likely that Plaintiff has used no more than a

general vehicle length – twenty feet – to accomplish his turnaround.

Accordingly, the Court finds that Plaintiffs’ prescriptive right to use

Whitcomb Lane extends no farther than twenty feet to the west-southwest of

marker M6.

      The location of the prescriptive easement is the existing Whitcomb

Lane. The Court has concluded that, at least as regards the area twenty feet

to the west-southwest of marker M6, the travelled portion of Whitcomb Lane

has been in essentially the same location fifteen-year period that preceded

the filing of this lawsuit. That is the location of the usage that created the

prescriptive right. Accordingly, Plaintiffs’ prescriptive easement runs along

the travelled portion of Whitcomb Lane as it presently exists.




                                        19
      III.   The Proper Location of Defendants’ Right-of-Way

      The Court has determined that Defendants now own the Strip and

that Plaintiffs have only a limited prescriptive right to use the travelled

portion of Whitcomb Lane, as it exists today, for a distance of twenty feet to

the west-southwest of marker M6.

      The issue of the proper location and width of the right-of-way to the

west-southwest of marker M6 is, therefore, either moot or not justiciable as

between these parties. Plaintiffs’ prescriptive easement is limited to the

existing travelled way and is not coextensive with the Defendants’ deeded

right-of-way. But Defendants are not free to move the travelled portion of

Whitcomb Lane that is encumbered by Plaintiffs’ prescriptive easement

without the agreement of the Plaintiffs. See Sargent v. Gagne, 121 Vt. 1, 12

(1958) (“[A] way, once located, cannot be changed thereafter without the

mutual consent of the owners of the dominant and servient estates”); see also

In re Shantee Point, Inc., 174 Vt. 248, 261 (2002) (noting same).7

      Further, based on the Court’s ruling today, Plaintiffs have no

cognizable interest in the land beyond the scope of their prescriptive

easement. Thus, if there is a need to determine the location and width of the


7
 Defendants agreed at trial that, were they to prevail, they would grant
Plaintiffs an express easement sufficient to use a triangular piece of land
within the Strip to back their vehicles onto what Defendants hoped would be
a slightly relocated Whitcomb Lane. Such an express easement may provide
Plaintiffs with greater ease and flexibility in reversing their vehicles.
Whether such an arrangement would be beneficial to both parties is left to
counsel and the parties to discuss in advance of preparing any final
documentation in this case.

                                       20
right-of-way beyond that prescriptive easement, it must be determined in an

action where both parties have a legally cognizable interest in the matter.8

      IV.    Removal of the Boulders and Shrubs Within the Strip

      Defendants have asked that the Court order Plaintiffs to remove the

boulders and shrubs they admittedly placed on the lake side of Whitcomb

Lane. As there is no counterclaim in this case, however, the Court will not

order such affirmative relief at this time. Counsel are encouraged to address

this issue as they work together to craft the documentation that will flow

from this Order.

      V.     Conclusion

      In light of the foregoing:

      1.     The Court finds in favor of Defendants and concludes that they

have acquired ownership of the Strip though adverse possession.

      2.     The Court finds that Plaintiffs have acquired a prescriptive

easement to use Whitcomb Lane, in its existing location, to the point twenty

feet to the west-southwest of marker M6.

      3.     In addition, based on the agreements or concessions of the

parties: (a) Defendants have acquired ownership of a parcel of land bounded

on the southeast by marker M6, on the northeast by marker M7, on the

northwest by a point roughly midway between markers M7 and M32, and on



8The Court understands that there is an agreement between the Defendants,
the Slasons, and the Wagners as to the location of the right-of-way to the
west-southwest of marker M6.

                                      21
the southwest by marker M4; (b) Defendants have ownership of a right-of-

way to use the “short drive;” (c) Defendants have renounced any claim to

ownership of Plaintiffs’ lands to the east of the line formed between marker

M30 and marker M7; (d) Defendants have renounced any claim to ownership

of Whitcomb Lane to the east the line formed between marker M30 and

marker M7, except that Defendants retain a right-of-way to travel across

Whitcomb Lane to access their property from East Echo Lake Road.

      4.     Counsel and parties are directed to prepare the deeds, boundary

agreements, or proposed court orders that they believe are appropriate and

necessary to effectuate the determinations contained in this Order.

      5.     Each side to bear their own costs and attorney’s fees.



      Dated this ___ day of _______, 2011, in Burlington, Vermont.


                                       ________________________
                                       Timothy B. Tomasi
                                       Superior Court Judge


      Dated this ___ day of _______, 2011, in __________, Vermont.


                                       _________________________
                                       Robert Goodby
                                       Assistant Judge


                                       _________________________
                                       Benjamin M. Batchelder
                                       Assistant Judge




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