                                      STATE OF VERMONT


                                   ENVIRONMENTAL COURT


                                              }
Appeal of Bowman                                                     }       Docket No. 70-5-96
                                              Vtec
                                              }       (formerly E96-070)
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                            Decision and Order on Pending Motions

       Appellant William M. Bowman, III, moves for relief from the March 5, 1997 decision

of the Environmental Court regarding the width of an easement1[1] benefitting the property

of Appellee-Applicants James and Renee Ackerman, and moves for summary judgment.

Appellees move for Rule 11 sanctions. Appellant represents himself; Appellees Ackerman,

as well as Appellee-Interested Parties Gary and Lindsay Ryan, Richard Schattman and

Ruth Dennis, and Lawrence and Barbara Young, are now represented by Charles F.

Storrow, Esq.; Interested Person James E. Nixon represents himself; and the Town of

Fairfax is now represented by Joseph S. McLean, Esq.




       1[1]
              In this document we will use the term Aeasement@ whenever possible, as the term

Aright-of-way@ is sometimes confused in colloquial use to refer to a traveled way, that is, an actual

roadway or driveway, rather than the easement over which it runs.
Renewed Motion for Relief from 1997 Environmental Court Judgment

       We review the sequence of the conveyance of the parcels at issue in this litigation

and the sequence of the several cases brought before the Environmental Court and

Franklin Superior Court relating to this property, to the extent necessary to rule on the

pending motions.

       All of the property at issue in the two rounds of Franklin Superior Court litigation

was derived from a common owner: John and Juanita Shedd.              In 1960 the Shedds

conveyed a triangle of land by warranty deed to Clifford and Alma Parah. As described in

the deed, the property measured 113 feet along its southerly boundary at Route 104A, 210

feet along the easterly side of the triangle to its apex, and 250 feet along the westerly

side of the triangle. The Shedd-to-Parah deed reserved to the Shedds, in common with

the Parahs, the right to use Athe road leading from 104A to the Sugar Bush so-called,

over@ the Parah lot.

       Nothing in that deed stated how much of the road traversed the Parah lot and how

much ran over neighboring Shedd land, and no survey from that transaction has been

presented in evidence in either court. If the ten-to-fourteen-foot-wide >gravel drive= shown

on the 1988 Peter Cross survey for Matthew Van Brocklin was in the same location as the

1960 >road= referred to in the Shedd-to-Parah deed, only the most southwesterly corner of

the road ran over only the most southeasterly corner of the triangular Parah lot, and the
remainder of the road ran on the then-Shedd property to the east of the Parah lot, later

deeded to Simoneau and Wiggin. This Court has no jurisdiction to establish the Shedds

intent in 1960, or at any time, as this Court cannot resolve property or contract disputes.

       In 1975, Matthew Van Brocklin2[2] acquired what had been the Parah lot. Between

1978 and 1987 the Shedds conveyed additional parcels with access from Route 104A

over the same easement.




       2[2]
              A predecessor-in-interest to Appellant Bowman.
       On July 27, 1984, the Shedds conveyed by warranty deed to Allen Simoneau and

Sal Wiggin a 5.78-acre parcel of land with frontage on Route 104A, directly easterly of the

Van Brocklin (former Parah) lot.              In that deed, the Shedds stated that the

Simoneau/Wiggin parcel was Asubject to a certain right-of-way to be used in common by

the Grantors, their heirs and assigns, and others,@ and described the >right-of-way= as

being Alocated along the westerly line@ of the Simoneau/Wiggin lot3[3].

       In 1985, the Youngs, owners of one of the back lots with access by this easement,

sought ZBA approval of improvements on their property.               The ZBA approval was first

denied and later granted, subject to proof that the easement serving their property was at

least 25 feet in width. At the request of Lawrence Young, on June 24, 1985, the Shedds

and Allen Simoneau and Sal Wiggin (but not Van Brocklin) entered into an agreement

stating it was their understanding that the right-of-way referred to in the Shedd-to-

Simoneau/Wiggin deed Ahas been, is, and shall be twenty-five (25) feet in width over its



       3[3]
              Appellant has claimed that the Shedds had no authority to grant this right-of-way to

Simoneau/Wiggin, arguing they had already granted it to Parah and had only reserved the right to

use it to themselves and their heirs.   According to the 1988 survey map, however, prior to the

1984 conveyance (and the 1988 settlement) a portion of the traveled way passed over what was

then the Shedd property, separate from the portion that passed over the corner of the triangular

deeded Parah parcel, which was the only parcel subject to that limiting language. In any event,

this issue was settled in the 1988 settlement of the Van Brocklin v. Shedd litigation, Docket No.

S301-86 Fc in Franklin Superior Court, and this Court has no jurisdiction to inquire further.
entire length.@ It is this agreement that Appellant argues was Afraudulent.@

       Because Van Brocklin was not a party to that agreement, we note that the

signatories to that agreement only had authority to agree about the width of the easement

as it extended over what was then the Simoneau/Wiggin property (and onto the Shedd

property), as those were the owners of the land underlying the easement.               Their

agreement could not and did not purport to extend the easement onto what was then the

triangular deeded parcel of Van Brocklin land. However, only the Franklin Superior Court

then had or now has jurisdiction to locate that easement on the ground.        In any event,

nothing about their agreement as to the width of the easement demonstrates that it was

obtained through fraud.

       Less than a month later, on July 15, 1985, Van Brocklin, the Youngs and the

Shedds, (but not Simoneau and Wiggin), entered into a separate agreement providing that

the center line of the right-of-way was the center line of the then-existing traveled way

(gravel drive).   If, as alleged in the Superior Court proceedings, Van Brocklin was

unaware of the earlier 25-foot-width agreement between his neighbors when he agreed to

the location of the centerline, any grounds for an argument that this centerline-location

agreement was fraudulently procured should have been made to the Superior Court, the

only court with jurisdiction over any such argument.      The fact that no such argument

appears to have been made in either the 1986 or the 1999 Superior Court cases cannot
be remedied in this Court.

       By this time in 1985, it appears that the then-owners of the properties, that is, at

least Van Brocklin, Simoneau and Wiggin, and the Shedds (their common grantors),

disagreed as to whether the traveled way was located on Van Brocklin property or on

Simoneau/Wiggin property, and possibly also disagreed as to whether the underlying

easement was located on Van Brocklin property or on Simoneau/Wiggin property, or in

part on both properties.

       In 1986, Van Brocklin brought an action in Franklin Superior Court to resolve those

questions. Van Brocklin v. Shedd, Franklin Superior Court Docket No. S301-86 Fc. We

do not have before us the file in that 1986 action that might reveal whether the parties

addressed the distinction between the width and location of the traveled way as opposed

to or as compared with the width and location of the underlying easement.       If the two

1985 agreements were on their face mutually incompatible as they affected the first

hundred feet of the gravel drive, from Route 104A to the rear of the house, that argument

should have been made to the Superior Court, the only court with jurisdiction over it. In

their 1986 litigation, the then-parties could have resolved whether the agreement about the

width of the easement (which would have had to have extended the easement onto

Simoneau/Wiggin property to avoid affecting the deeded Van Brocklin triangle, as Van

Brocklin was not a signatory to it) was incompatible with the agreement as to the location
of the centerline of the easement (which Simoneau and Wiggin had not signed.)

       In any event, that litigation, Van Brocklin v. Shedd, Docket No. S301-86 Fc, was

settled in 1988 by an agreement among Van Brocklin, the Shedds, Simoneau and Wiggin.

The survey that resulted from that settlement established the location of the traveled way

(gravel drive) within the Van Brocklin parcel, established the new property line, and

obligated the users of that access not to expand it any farther to the west than its then-

present location. In that settlement, the Shedds and Simoneau and Wiggin quitclaimed to

Van Brocklin all right and title they had to any property westerly of the newly surveyed

easterly property line of the Van Brocklin parcel, which was established just to the east of

the traveled way (and included additional land so that the water supply for the Van

Brocklin parcel formerly on Shedd land would be located on Van Brocklin land).            That

settlement was, however, silent as to the location of the traveled way (the gravel drive

shown on the 1988 survey) within the easement, and does not appear to have vacated or

withdrawn or superseded either of the 1985 agreements. Any need on the part of those

litigating parties or their successors to reopen that settlement to clarify the location of the

traveled way within the easement, or the location of the easement on the ground, should

have been addressed or should be addressed to the Franklin Superior Court. This Court

has no jurisdiction to affect a Superior Court settlement or judgment, whether issued

eighteen years ago or more recently.
       In 1992, Van Brocklin deeded the parcel to another owner, who quitclaimed it in

1996 to Appellant Bowman.

       In 1996, Appellant filed the present appeal of a grant of zoning approval to

Appellee-Applicants Ackerman, claiming that their access to Route 104A was not at least

25 feet in width. After an evidentiary hearing at which only the Town was represented by

counsel, the Environmental Court issued a decision that the Ackerman property had access

by a right-of-way or easement at least 25 feet in width (although finding the traveled way

to be narrower), based on the June 24, 1985 agreement, and concluding that Appellee-

Applicants Ackerman were entitled to their permit. The Vermont Supreme Court upheld

that decision in a three-justice-panel decision in March of 1998. The Environmental Court

had no jurisdiction then, and still has no jurisdiction, to reform either of the 1985

agreements or to reopen or otherwise alter the 1988 settlement of Van Brocklin v. Shedd.

The Environmental Court did not and could not locate that easement on the ground, or

rule on the location of the gravel drive within the easement, or on whether some portion of

the easterly side of the easement was located on Simoneau/Wiggin property. All that it

had before it to decide, and that it did decide on March 7, 1997, was that Appellee-

Applicants Ackerman had met their burden of proof under the Zoning Regulations to show

that they had access to their property by a 25-foot-wide easement.      Nothing about the

subsequent litigation in Superior Court or the Supreme Court has changed that fact.
       In 1999, Appellant filed an action to quiet title and for declaratory judgment in

Franklin Superior Court to establish the property rights that were outside the Environmental

Court=s jurisdiction, and to prevent the Ackermans from extending the traveled way farther

to the west, that is, closer to Appellant Bowman=s house. Bowman v. Ackerman, et al.,

Docket No. S217-99 Fc. In that litigation, the Franklin Superior Court accepted the 25-

foot-width of the underlying easement as found by the Environmental Court from the 1985

agreement.    The Vermont Supreme Court affirmed the Franklin Superior Court=s reliance

on the Environmental Court=s finding regarding the width of the right-of-way, see Bowman

v. Ackerman, et al., Docket No. 2003-133 (October 2, 2003) (mem.), as well as the

Franklin Superior Court=s dismissal of Simoneau and Wiggin from that litigation.

       However, accepting that width for the easement did not locate the easement on the

ground in relation to the traveled way.       It was up to the Superior Court and not the

Environmental Court to determine the effect of the 1988 settlement on the earlier 1985

agreements, and whether to take evidence on or reopen the 1988 settlement to establish

the location of the ten-to-fourteen-foot-wide traveled way (gravel drive)within the twenty-

five-foot-wide easement.     The fact that it did not do so and that the Supreme Court

upheld its decision is not within the jurisdiction of this Court to address.
       Accordingly, based on the foregoing, Appellant=s Motion for Relief from Judgment,

seeking to reopen this Environmental Court appeal, is DENIED.           The above-captioned

case remains concluded and we therefore do not reach Appellant=s motion for summary

judgment.




Rule 11 Sanctions and Timeliness

       Although Appellant has brought these issues to Superior Court as well as to this

Court, and the Supreme Court has upheld both lower courts, his filing of the motion for

renewed relief from this Court=s March 1997 decision is not frivolous or presented for an

improper purpose so as to warrant V.R.C.P. 11 sanctions, it merely reflects an

unrepresented party=s lack of understanding of the scope of Environmental Court

jurisdiction. Appellant was entitled to use every effort to try to bring his issues regarding

the width, location and use of the easement before a court with jurisdiction to decide them.

Although the Environmental Court does have jurisdiction to determine whether a permit

applicant has met all the requirements of the zoning ordinance, including whether the

permit applicants have met their burden of proof that they have access to their property

over an easement of a certain minimum width, it does not have jurisdiction to determine

the underlying property rights of the affected parties.   However, at the time of this Court=s

1997 decision and order, this Court had not yet had occasion to make that distinction clear
in a court ruling.   See, e.g., Appeal of Cole, 174-10-01 Vtec (Vt. Envtl. Ct., May 12,

2003).
       Appellant=s motion for relief from judgment was originally made shortly after the

Superior Court decision relying on the Environmental Court=s decision, and therefore was

timely when made. This Court postponed it until after the appeal to the Supreme Court of

the related Superior Court action would have been concluded, as the issues in that appeal

could have affected Appellant=s perceived need for reconsideration in the present appeal.

Appellant=s renewed motion was timely after the Supreme Court=s ruling on the Superior

Court appeal.

       Accordingly, Appellees= Motion for Rule 11 Sanctions is DENIED.




       Because the 1988 settlement prohibited the expansion of the gravel drive westerly

of its extent as of the 1988 survey, it may be to the advantage of the parties to use the

assistance of a mediator to see if they can come up with a resolution to govern the

relationship of these properties and the use of the traveled way into the future, and to

avoid future litigation in Environmental or Superior Court.




       We also note that we have scheduled a conference for July 5, 2005, with Mr.

Bowman and the Town=s attorney to discuss Docket No. 163-10-01 Vtec; notice enclosed

for the participating parties in that separate appeal.



       Done at Berlin, Vermont, this 21st day of June, 2005.
_________________________________________________
     Merideth Wright
     Environmental Judge
