2014 VT 23


Old Railroad Bed, LLC v. Marcus,
et al.  (2012-341)
 
2014 VT 23
 
[Filed 07-Mar-2014]
 
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@state.vt.us or by
mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont
05609-0801, of any errors in order that corrections may be made before this
opinion goes to press.
 
 

2014 VT 23

 

No. 2012-341

 

Old Railroad Bed, LLC


Supreme Court


 


 


 


On Appeal from


     v.


Superior Court, Bennington
  Unit,


 


Civil Division


 


 


Ronald A. Marcus, Kristi Marcus,
  et al.


May Term, 2013


 


 


 


 


Katherine
  A. Hayes, J.


 
Robert E. Woolmington of
  Witten, Woolmington & Campbell, P.C., Manchester Center, for
  Plaintiff-Appellee.
 
Allan R. Keyes and James B. Anderson
  of Ryan, Smith & Carbine, Ltd., Rutland, for
  Defendants-Appellants.
 

 
PRESENT:  Reiber, C.J., Dooley, Skoglund, Burgess and
Robinson, JJ.
 
 
¶ 1.            
REIBER, C.J.   This is a dispute over title to an old
railroad bed adjacent to  defendants’ property
that plaintiff purchased with the goal of creating a public recreational trail.
 Defendants challenge the trial court’s determination that plaintiff
acquired a valid fee simple interest in the property, asserting that title
either reverted to them when the railroad abandoned the line or vested in them
through adverse possession.  We affirm. 
¶ 2.            
The background to this dispute may be succinctly summarized; additional
material facts will be set forth in the discussion which follows.  The
property in question, located in the Town of Manchester, consists of a strip of
land approximately fifty to eighty-two feet wide, comprised of several
adjoining parcels conveyed by three separate warranty deeds in December 1902
from defendants’ predecessors-in-interest to the Manchester, Dorset &
Granville Railroad Company (MD&G).  MD&G was incorporated in June
1902, tracks were laid in 1903, and the railroad began operating in 1904,
chiefly for the transportation of marble.  In 1913, the Vermont Marble
Company acquired MD&G’s stock.  Railroad operations were suspended in
1918, revived briefly in 1924, and ceased altogether in 1934, when the tracks
were removed from the railroad bed.  Two years later, MD&G conveyed
all of its remaining assets to Vermont Marble, and filed articles of
dissolution.  In 1992, Vermont Marble merged with OMYA, Inc., which became
title holder of the railroad bed property.  In 2009, plaintiff Old
Railroad Bed, LLC purchased the property from OMYA for $39,614, for the purpose
of creating a public recreational trail.  
¶ 3.            
As noted, defendants own property adjacent to the old railroad bed and
are the successors-in-interest of the original grantors of the property to
MD&G.  Defendants Ronald and Kristi Marcus own the northernmost
property, defendants Bradford West, Vernon West, and Cathy Cushing own property
to the south of the Marcuses, and defendants Donald and Eleanor Dykes own
property to the south of the West/Cushing parcel.  When the Marcuses
objected to plaintiff’s right to pursue its trail plan, plaintiff filed an
ejectment action against them, seeking a writ of possession and injunction to
prevent them from interfering with plaintiff’s rights.  The other adjacent
property owners were subsequently granted leave to intervene in the lawsuit as
co-defendants (hereafter collectively “defendants”).    
¶ 4.            
Defendants ultimately filed two motions for summary judgment, one based
on a claim that MD&G had acquired only an easement in the property, which
reverted to the original grantors and their heirs and assigns, i.e.,
defendants, when the line was abandoned, and the other on a theory of adverse
possession.  In November 2011, the trial court issued a written decision,
resolving the first claim in favor of plaintiff.  The court concluded that
each of the three original deeds on its face “convey[ed] a fee simple interest
to MD&G;” that a location survey by the railroad company referenced in each
of the deeds and later recorded did not effectively convert the conveyances
into takings by condemnation;[1]
and that the statutory scheme in effect at the time did not preclude the
railroad from obtaining a fee simple interest through a mutually agreed
transfer of title for consideration.  
¶ 5.            
In an order issued the following month, the trial court denied
defendants’ motion for summary judgment on the adverse possession claim,
finding that genuine issues of material fact remained in dispute.  In July
2012, following a two-day court trial, the court issued a thirty-two page
decision rejecting the claim on its merits, and thereafter entered a final
judgment in favor of plaintiff.  This appeal followed. 
   
I.
¶ 6.            
Defendants do not challenge the trial court’s finding that each of the
deeds conveyed a fee simple interest to MD&G.  They contend,
nevertheless, that MD&G acquired at most an easement in the properties
which reverted to the grantors and their heirs and assigns when the line was
abandoned.  As below, defendants advance two arguments to support the
claim.  First, they cite settled law that a railroad acquiring property by
condemnation receives only an easement interest that reverts to the grantor
upon abandonment.  Dessureau v. Maurice Mem’l, Inc.,
132 Vt. 350, 351, 318 A.2d 352, 653 (1974).  While acknowledging
that MD&G did not acquire the properties through formal eminent domain
proceedings, defendants maintain that because the land records reveal the
location survey was recorded before the deed, they were obtained under “threat
of condemnation” and therefore subject to the same common-law limitation
requiring reversion upon abandonment.[2] 
  
¶ 7.            
Defendants place principal reliance on Preseault v. United States,
100 F.3d 1525 (Fed. Cir. 1996), a Federal Circuit court decision involving a
takings claim arising from an attempted conversion of an abandoned railroad
line to a recreational trail in Burlington, Vermont.  The record there
showed that, in 1899, the Rutland-Canadian Railroad obtained three parcels for
a railroad line, two (parcels A & B) by eminent domain pursuant to a
commissioner’s award of damages, and a third parcel (parcel C)—owned by the
plaintiffs’ predecessor-in-interest—by warranty deed conveying a fee simple
interest.  Id. at 1531-34.  Noting that the deed to parcel C
“was given following survey and location” of the line by the railroad company
pursuant to the statutory takings procedure and that “the A & B parcels
unquestionably involved conveyances of easements [by condemnation] and not fee
simple estates,” the court concluded that “[o]n balance it would seem that . .
. the proceeding retained its eminent domain flavor” and the railroad thus
acquired only an easement in all three parcels.  Id. at 1536-37.[3]   
¶ 8.            
To the extent that the federal court relied on the location survey,
together with all of the other surrounding circumstances, as evidentiary
support for finding that the third parcel was effectively taken by eminent
domain, Preseault appears to be unexceptional.  To the extent that,
as defendants here argue, Preseault holds that a location survey
automatically converts a subsequent fee-simple conveyance into an easement, we
know of no law in Vermont or elsewhere to support such a claim.  See Gregory
v. United States, 101 Fed. Cl. 203, 210 (Fed. Cl. 2011) (rejecting claim
based on Preseault that fee-simple deed to railroad could convey only
easement following survey and location, observing that there was “no [such]
rule in Mississippi”); Miller v. United States, 67 Fed. Cl. 542, 545
(Fed. Cl. 2005) (rejecting Preseault-based argument that fee-simple deed
to railroad following survey took “on the character of a condemnation
proceeding,” noting the absence of any “Missouri law that would incline us to
reach a similar conclusion, permitting us to ignore the deed”). 
¶ 9.            
The principal Vermont decision on which Preseault relied, Troy
& Boston R.R. Co. v. Potter, 42 Vt. 265 (1869), was a trespass action
by a railroad for damages caused when the defendant, an adjacent landowner and
the party from whom the railroad had acquired the line by eminent domain,
entered the right-of-way to remove grass.  The defendant claimed that the
railroad had never acquired a valid interest in the land because it failed to
record its location survey in the town clerk’s office, as required by the
company’s legislative charter.  Id. at 271. 
This Court rejected the claim, concluding that the survey and location of the
road were sufficient to effectuate the taking without the recording, and
therefore that defendant could not “take advantage of the omission by the
Company in these respects.”  Id. at 272. 
The issue presented here—the effect of a survey and location on a subsequent
fee-simple interest deed to a railroad—was not raised in Troy, and the
Court did not address it.  
¶ 10.         The
other Vermont decision cited by the federal court, Hill v. Western Vt. R.R.
Co., 32 Vt. 68 (1859), raised the question of whether a creditor could
place a lien upon certain property acquired by the defendant railroad by
contract, and the court interpreted the contract to convey only an easement not
subject to levy.  Although in its lengthy discussion of
railroad law the court observed that, whether a railroad takes by
purchase or condemnation “the proceeding is, in some sense, compulsory,” it did
not purport to hold that a grantor may not convey, nor a railroad acquire, a
fee interest.  Id. at 75.  Indeed,
the court expressly limited its holding, stating that it did “not intend to say
that if [the railroad] purchased and took the conveyance of the fee of land for
[railroad] purposes, they could not hold or convey it.”  Id. at 74.   Thus, neither of the Vermont
decisions cited in Preseault stands for the ultimate proposition that a
location survey precludes a subsequent fee-simple conveyance to a
railroad.       
¶ 11.         The
circuit court in Preseault also indicated that it had relied on the
analysis of the lower federal claims court, which relied in turn on two
additional turn-of-the-century decisions.  See Preseault v. United
States, 24 Cl. Ct. 818, 830 (Fed. Cl. 1992). 
The first, Williams v. Odessa & M. Ry. Co., 44 A. 821, 836 (Del. Ch.
1895), simply observed, in the course of determining a railroad’s authority to
relocate a line after the initial location survey, that a “location is not a
mere right, it is an act.”  The court did not address any question
concerning the effect of a railroad survey on a subsequent fee-simple
deed.  The second, Chesapeake & O. Ry. Co. v. Deepwater Ry. Co.,
50 S.E. 890 (W. Va. 1905), involved a dispute between rival railroad companies
over priority to a certain property for their respective lines.  The West
Virginia court ruled that, as between the competing claimants, the plaintiff
had established priority by surveying and locating the line pursuant to the
authority in its legislative charter, which was sufficient to show its exercise
of dominion over the property.  See id. at 896 (“The choice of a
location by laying it out by survey, and the passage of the resolution by the
board of directors adopting it as the location on which the road will be built,
is itself the exercise of delegated legislative power conferred upon the
company.  It is an exercise of the power of eminent domain to that
extent.”).  Again, the case involved only the effect of a location survey
on the railroad’s claim to a vested right in the property, not its effect on a
subsequent purchase under a fee-simple deed. 
¶ 12.         The
limited nature and scope of the Chesapeake holding becomes clear by
examining the two principal decisions on which it relied, one from New York and
the other, interestingly, from Vermont.  See id. at
897.  The New York decision, Rochester H. & L. R.R. Co. v. N.Y., L.
E. & W. R.R. Co., 17 N.E. 680 (N.Y. 1888), also involved a dispute
between railroad companies over priority to the same parcel for their
respective lines, and the court held that, when a railroad had exercised its
delegated authority to “file[] a map and survey of the line of route it intends
to adopt for the construction of its road, . . . it has impressed upon the
lands a lien in favor of its right to construct, which ripens into title
through purchase or condemnation proceedings.”  Id.
at 682.  The Vermont decision, Barre R.R. Co. v. Montpelier
& Wells River R.R. Co., 61 Vt. 1, 17 A. 923 (1889), involved a similar
dispute between railroad companies, and this Court accorded similar priority to
the company which had first conducted a location survey, approving the
principle that “when the initial steps pointed out by statute were taken, there
only remained for the company to acquire, through purchase or through
proceedings in invitum,”[4]
the property through which the line of route had been surveyed.  Id.
at 6, 17 A. at 924.  Neither case purported to hold that a location
survey, as a matter of law, effectively precludes a railroad from subsequently
purchasing, or the landowner from subsequently conveying, a deeded fee-simple
interest.  On the contrary, as noted, both cases confirmed that, while a
location survey might be sufficient to vest in the railroad an exclusive right
or priority to construct its line, that right would not ripen into title until
a subsequent “purchase or condemnation proceedings.”  Rochester
R.R., 17 N.E. at 682 (emphasis added); Barre R.R., 61 Vt. at 6, 17
A. at 924.
¶ 13.         In
light of the foregoing cases and authorities, we find no support for
defendants’ assertion that, merely by virtue of the location survey referenced
in the original deeds, the properties here were necessarily acquired by eminent
domain.  Nor do we find any other record evidence demonstrating that the deeds
were made under such a climate of compulsion that they acquired the character
of a condemnation proceeding, thereby conveying only easements rather than fee
simple interests.  The trial court found that the claim was “entirely
speculative,”  and the record fully supports this
conclusion.  Accordingly, we find no basis to disturb the ruling. 
See First Quality Carpet, Inc. v. Kirschbaum, 2012 VT 41, ¶ 20, 192 Vt.
28, 54 A.3d 465 (“We will uphold the court’s findings unless they are clearly
erroneous and affirm its conclusions as long as they are reasonably supported
by the findings.” (quotations omitted)).  
¶ 14.         Defendants’
second argument is that MD&G was disabled by statute from acquiring
and holding any property interest greater than a revertible easement.
 Defendants find support for this argument in a provision of the statutory
scheme governing railroad corporations at the time of the conveyances, which
provided as follows: “This section [dealing with the procedural requirements
for taking property by eminent domain] shall not prevent a company from taking
and holding voluntary grants of real estate made to it, to aid in the
construction, maintenance and accommodation of its railroad; but such real
estate shall be held and used for the purposes of such grant only.” 
1894 V.S. § 3671 (emphasis added).  Assuming that the purpose of the
conveyances here was the construction and operation of a railroad, defendants
maintain that—by virtue of the underscored language—MD&G could retain the
land in question only so long as it was held and used for those purposes, and
it reverted to the grantors or their heirs and assigns when the line was
abandoned.
¶ 15.         The
trial court summarily rejected the argument, stating that it was “unable to
find any support for this interpretation in the language of the
legislation.”  Plaintiff, for its part, had argued that defendants’
interpretation was inconsistent with a provision in the same law that allowed
railroad corporations not only to purchase but to “convey” real estate as the
purposes of the corporation required.  1894 V.S. § 3753. 
The authority to sell implied the authority to take and hold an absolute fee
simple interest.  Another section of the law also authorized a railroad
corporation to “purchase or otherwise take lands necessary for making or
securing its railroad.” 1894 V.S. § 3810. 
Plaintiff also noted that limiting language of a similar nature appeared in the
railroad charter at issue in Page v. Heineberg, 40 Vt. 81 (1868) (which
authorized the railroad company to “take the use and possession of land and
real estate for the purposes therein expressed”), where this Court nevertheless
held that the railroad had validly acquired a fee simple estate in the property
at issue.  Id. at 86.  
¶ 16.         Although
we are not entirely persuaded that defendants’ argument is quite as groundless
as the trial court found, neither are we entirely certain that defendants’ is
the only reasonable interpretation of the statutory language at issue.
 Whatever the legislative intent in 1894 may have been, however, is a
question we need not here resolve.  For even assuming arguendo that
defendants’ construction is correct, and that the railroad’s acquisition of an
absolute fee interest exceeded its delegated statutory authority, defendants
here have no standing to assert the claim.[5]  
¶ 17.         It is
settled law that a conveyance of property “to or by a corporation may transfer
the title even though the corporation has no power . . . to hold or transfer
the property.”  7A C. Jones. Fletcher
Cyclopedia of the Law of Private Corporations § 3424, at 33 (2006). 
Such “ultra vires”[6]
contracts are traditionally said not to be void, but voidable, and then only by
the state, not by subsequent grantees or strangers to the sale.  See id.
§ 3500, at 94  (where “ultra vires contract” to purchase real property is
fully performed, “title vests in the corporation, at least as against all persons
but the state, and the corporation may afterwards sell the property,” and a
claim of ultra vires may not “be asserted . . . by a third person who is a
stranger to the transaction.”).  Thus, a corporation
which receives title to real estate, “although its acquisition of title was
ultra vires, could transmit title to another” and the “fee [would] not revert
to the grantor of the corporation upon the dissolution of the corporation,
although the transfer was ultra vires.”  Id. § 3502, at 99;
see also 5 S. Thompson, Commentaries on the Law of Private Corporations
§§ 5795, 5797, at 4489-4491 (1894) (observing that, “although a
corporation may be disabled or forbidden from holding land . . . its title will
be good except as against the State alone” and it “may in the mean time convey
an indefeasible title to another, of whatever estate in the lands had been
conveyed to or acquired by it”).  The rule that a fully executed ultra
vires transfer of real property may be challenged only by the state—not by subsequent
assigns of the parties—applies regardless of whether the transfers are
“prohibited by statutes or charter, such as statutory limitations upon the . .
. real property that a corporation may hold.”   Jones,
supra, § 3511, at 106.  
¶ 18.         Case
law to this effect is uniform and longstanding.  In Kerfoot v. Farmers
& Merchants Bank, for example, the U.S. Supreme Court summarized the
rule as follows: “[A] conveyance of real estate to a corporation for a purpose
not authorized by its [legislative] charter is not void, but voidable, and the
sovereign alone can object.  Neither the grantor nor his heirs nor third
persons can impugn it upon the ground that the grantee has exceeded its
powers.”  218 U.S. 281, 286 (1910); see also Fritts v. Palmer, 132
U.S. 282, 292 (1889) (“[T[he question whether a
corporation, having capacity to purchase and hold real estate for certain
defined purposes, or in certain quantities, has taken title to real estate for
purposes not authorized by law, or in excess of the quantity permitted . . .,
concerns only the state within whose limits the property is situated.  It
cannot be raised collaterally by private persons.”); Nat’l Bank v. Matthews,
98 U.S. 621, 628 (1878) (“Where a corporation is incompetent by its
[legislative] charter to take a title to real estate, a conveyance to it is not
void, but only voidable, and the sovereign alone can object.  It is valid
until assailed in a direct proceeding instituted for that purpose.”); Louisville
Sch. Bd. v. King, 107 S.W. 247, 251 (Ky. Ct. App. 1908) (“The general rule
is that although a corporation may be disabled or forbidden by the organic or
statute law of a state from holding land except for particular purposes, or . .
. beyond a prescribed limit or quantity, yet, if it does hold land in the face
of such disabilities or prohibitions, its title will be good except as against
the state alone, and that it will be deemed to have good title until its title
is invalidated in a direct proceeding instituted by the state for that purpose,
and this rule prevents the title of the corporation from being assailed by its
grantor or grantee.”); State v. Chicago, Burlington & Quincy R.R. Co.,
539 S.W.2d 760, 763 (Mo. Ct. App. 1976) (holding that, even if conveyance of
fee of railroad was ultra vires under state constitution, “appellant has no
standing to raise the question” as “only the attorney general of the state . .
. may raise the question of ultra vires acts of a corporation”); Mallett v.
Simpson, 94 N.C. 37, 1886 WL 853, at *3 (N.C. 1886) (noting that “even when
the right to acquire real property is limited by charter, and the corporation
transcends its power in that respect, . . . a conveyance to it is not void, but
only the Sovereign . . . can object”).[7]
  
¶ 19.         The
rationale behind the rule—preserving stability and settled expectations in real
property transactions and title ownership—has been cogently summarized as
follows: “The great public inconvenience which would result from any other rule
has led the courts to deny collateral attack upon the powers of a corporation,
when the only question presented is as to the power of the corporation to be a
conduit of title.  The authorities on this point are uniform.”  E. Warren, Executed Ultra Vires Transactions, 23 Harv.
L. Rev. 495, 506 (1910); see also Natoma Water & Mining Co. v. Clarkin,
14 Cal. 544, 552 (Cal. 1860) (“It would lead to infinite inconveniences and
embarrassments, if, in suits by corporations to recover the possession of their
property, inquiries were permitted as to the necessity of such property for the
purposes of their incorporation, and the title made to rest upon the existence
of that necessity.”); Fayette Land Co. v. Louisville & N. R. Co., 24
S.E. 1016, 1020 (Va. 1896) (observing that the doctrine that the state alone
can challenge an ultra vires corporate acquisition of property “rest[s] upon
the principle . . . that it would be extremely inconvenient if every contractor
with corporations might, for the purpose of avoiding their contracts, be
permitted to institute inquiry as to violations of the charter”).  
    
¶ 20.         The
rule barring collateral attacks on ultra vires corporate acquisitions of real
property has been applied in many circumstances similar to those presented here,
where a conveyance of land to a railroad company is later challenged by a
successor-in-interest of the original parties as exceeding the company’s
authority to acquire and hold real property under its legislative charter or
the governing statutory scheme.  Consistent with the general rule stated
above, courts have uniformly held that, even if the acquisition was ultra
vires, the railroad could acquire and convey good title, which was voidable
only through a direct enforcement action brought by the state.  In an
early case entitled Land v. Coffman, 50 Mo. 243, 1872 WL 7914 (Mo.
1872), for example, the plaintiff holding a “sheriff’s deed” to property which
the grantor had conveyed years earlier to a railroad company and was
subsequently sold by the railroad to the defendants, claimed that the original
conveyance exceeded the railroad’s authority under a statute—nearly identical
to the one at issue here—which provided that “real estate received by voluntary
grant shall be held and used for the purpose of such grant only.”  Id. at *7.  The court rejected the claim,
concluding that “no one, except the State” could challenge the conveyance
through a “direct proceeding . . . against the [railroad], and not in a collateral proceeding like this.”  Id.  
 
¶ 21.         Another
case even more closely on point is Corning v. Lehigh Valley R.R Co., 217
N.Y.S.2d 874 (N.Y. App. Div. 1961).  There, as here, subsequent assigns of
the original grantor of land deeded to a railroad in 1867 claimed that, even if
the deed purported to convey a fee simple, the railroad acquired only an
easement under a statute providing, in language nearly identical to the
provision at issue here, that “real estate received by voluntary grant shall be
held and used for the purposes of such grant only.”  Id.
at 878.  The court rejected the claim, explaining as follows: 
Even
if the statute were construed as permitting a railroad company to take only a
limited interest by voluntary grant and, in violation of the statute, the
railroad company took a deed in fee simple, the most that could be said would
be that it was an ultra vires act which might be attacked by the
public authorities, but the deed would nevertheless be effective to vest title
in the railroad.  The conveyance is not void, but only voidable, and the
sovereign alone can object.  It is valid until assailed in a direct
proceeding for that purpose.
 
Id. at
879 (quotation omitted).
¶ 22.         Another
early decision with features similar to the case at bar is Carr v. Miller,
181 N.W. 557 (Neb. 1921).  There the grantor conveyed a strip of land in
1899 to a railroad company, which sold the property years later to one Elliott,
who in turn sold it to the defendant.  Shortly after the original deed of
sale, the same grantor mortgaged the same property to a trust company, which
subsequently foreclosed, resulting in a sale to one Abbott, and eventually
through a number of additional conveyances to the plaintiffs, who sued to eject
the defendant from the property.  Plaintiffs claimed that the railroad was
not competent under state law “to acquire any higher title to real estate than
an easement or right of way,” an interest which reverted upon non-use or
abandonment, leaving the defendant—the railroad’s successor-in-interest—with no
interest.  Id. at 559.  The court
rejected the argument, observing that under settled law “the plaintiffs could
not raise the question of the competency of the [railroad] company to take a
fee title to the land.”  Id. at 560; see also Fayette, 24
S.E. at 1019 (holding that purchaser of land from railroad who defaulted on
purchase price could not claim, as a defense,  that railroad was incapable
of acquiring title or acquired at most a defeasible title, citing settled rule
that “[n]o party except the state can object that a corporation is holding real
estate in excess of its rights”); Russell v. Texas & P. Ry. Co., 5
S.W. 686, 690 (Tex. 1887) (concluding that it was “unnecessary to consider”
whether state law conferred on the railroad defendant “the power to hold lands
other than such as are reasonably necessary to the maintenance and operation of
the road” because “the right to question its holding of lands other than such
as are so necessary rests with the state alone”).  
¶ 23.         It is
clear from the foregoing principles and authorities that, irrespective of
whether MD&G exceeded its statutory authority in acquiring the fee
interests in question, defendants here have no standing to challenge the grants
on this basis more than a century after their making.  Accordingly, we
find no basis to disturb the trial court judgment that plaintiff acquired a
valid fee interest in the railroad bed.
II.
¶ 24.           Defendants
also contend that the trial court erred in rejecting their adverse-possession
claim to the disputed property.  The applicable standard of review is well
settled.  Adverse possession is a mixed question of law and fact.  MacDonough-Webster Lodge No. 26 v. Wells, 2003 VT 70, ¶ 17,
175 Vt. 382, 834 A.2d 25.  We view the factual findings of the
trial court in the light most favorable to the prevailing party below, and will
not set aside the findings unless they are clearly erroneous.  Id. 
Our review of the trial court’s conclusions of law, however, is nondeferential
and plenary.  Id.   To achieve title through adverse
possession, the claimant must demonstrate that possession of the land was open,
notorious, hostile, and continuous throughout the statutory fifteen-year
period.  Id. ¶ 24.  The use or
possession must be so substantial as to put an ordinary owner on notice of the
adverse possessor’s claim to absolute dominion over the property.  See Moran
v. Byrne, 149 Vt. 353, 355, 543 A.2d 262, 263 (1988) (observing that the
adverse possessor “must unfurl his flag on the land, and keep it flying so that
the owner may see, if he will, that an enemy has invaded his dominions and
planted his standard of conquest” (quoting Barrell v. Renehan, 114 Vt.
23, 29, 39 A.2d 330, 333 (1944))); Scott v. Leonard, 119 Vt. 86, 102,
119 A.2d 691, 700 (1956) (noting that, to establish adverse possession,
claimant’s “occupancy and use [must be] . . . of such a character as would
indicate to the [owner] that she was exercising it as a matter of right”
(quotation omitted)). 
¶ 25.         In
its comprehensive ruling, the trial court here exhaustively reviewed the
evidence adduced by the parties at trial and entered extensive findings and
conclusions based thereon.  In summary, with respect to
each of the three principal adjoining landowners, the court as follows. 
The Dykes’ predecessors-in-interest, the Beatties, pastured horses on their
property from 1971 to about 1991 and built a number of wire fences across both
their property and the railroad bed to contain the horses, which traveled back
and forth across the abandoned line.  Although generally no longer intact,
remnants of the old wire fences were found and noted by a surveyor in 1992, and
are visible in more recent photographs.  A licensed surveyor who walked
the property and prepared a report for plaintiff testified that wire fences of
this kind were typically considered fences of “convenience” to keep livestock
in rather than to demarcate boundaries, and the court so found.  See First
Congregational Church of Enosburg v. Manley, 2008 VT 9, ¶ 19, 183 Vt. 574, 946 A.2d 830 (mem.) (noting that
while a fence intended to mark a boundary may provide evidentiary support for a
claim of possession to the exclusion of others, a fence of “convenience” to
contain animals does not necessarily demonstrate such a claim).[8]  The trial court noted, as well,
that a 1992 survey recognized the railroad property as separately held and
owned; that the Dykes subsequently attempted through their surveyor to purchase
a portion of the railroad property that ran through their land, and ultimately
obtained a right-of-way from OMYA, plaintiff’s predecessor-in-interest, for the
construction of a driveway; and that they later submitted a municipal zoning
application for a garage with a specific setback from the railroad property, again
recognizing its separate ownership.  The court concluded, on the whole,
that while the evidence demonstrated the Beatties and Dykes had “made use of
[the railroad property] from time to time,” it was insufficient to demonstrate
a claim to permanent and adverse possession.  
¶ 26.         The
court reached a similar conclusion concerning the claim of the Marcuses, who
obtained title in the late 1980’s.  The court found that they had allowed
horses to roam across the railroad bed, had on occasion cleared trees from the
bed to allow their passage, and had attempted to purchase the railroad property
from OMYA in the early 2000’s.  The court concluded that these acts,
viewed as a whole, were insufficient to provide notice of a claim of right to
permanent and adverse possession of the disputed property.  Although a
metal gate and no-trespassing sign erected by the Marcuses did represent
overtly hostile acts, the court found that they had not appeared before the
commencement of this litigation.  
¶ 27.         The
court concluded that the adverse-possession claim of the Wests was closer, but
still insufficient.[9] 
The court found that Bradford West testified credibly that, since the late
1930’s, he and his family had regularly cultivated hay and cornfields on their
property and on land leased from the Marcuses’ predecessors-in-interest on both
sides of the raised railroad bed (although not on the raised bed itself),
pastured animals (mostly cows) on or near the railroad bed and allowed them to
cross it, occasionally mowed and cleared brush from portions of the bed, and
maintained a barbed wire fence across their property and the railroad bed until
the late 1950’s to mark a boundary with their southern neighbors and to keep
their livestock confined.  Although the court acknowledged that
some evidence suggested that portions of the Wests’ former corn and hayfields
had encroached on the railroad property “to some extent,” it found that the
evidence was insufficient to determine with any certainty the nature or
location of the encroachment.  Even when the Wests were most heavily
engaged in agricultural pursuits, the court found that the railroad bed was
used principally as a means to gain access to their fields “and was not itself
a cultivated area.”  The court concluded that, on the whole, the evidence
adduced by the Wests of their actual use and possession of the property over
time was “not strong enough to effectively put the world, and in particular the
title owner, on notice of an adverse claim.”[10]
        
¶ 28.         For
the most part, defendants do not challenge the court’s findings so much as the
conclusions it drew from them.  They maintain, in short, that the evidence
and findings “compel the conclusion that defendants fenced and farmed
the [p]roperty openly in plain view for more than fifteen years . . .  in
a manner that would put a person of ordinary prudence on notice of the
claim.”  (Emphasis added.)  The argument is unpersuasive.  As
noted, although defendants and their predecessors ran wire fences across the
railroad bed, the trial court reasonably concluded on the basis of the record
evidence that they were not erected to stake a separate claim to the railroad
bed but simply to contain livestock.  
¶ 29.         Furthermore,
while defendants are correct that this and other courts have recognized that
agricultural activities such as grazing cattle, pasturing horses, or cutting
hay and brush may support a finding of adverse possession, they do not alone
compel it.  Thus, we upheld such a finding in Jarvis v. Gillespie,
155 Vt. 633, 587 A.2d 981 (1991), where the claimant had not only used the
disputed land for “grazing cattle and horses” but had also run a logging
operation, tapped maple trees, and fenced one of the disputed
boundaries—factors not present here.  Id. at 636, 587 A.2d at 983-84.  Other courts, moreover, have found
agricultural activities similar to defendants’ to be insufficient to stake a
clear claim to adverse possession as of right.  See,
e.g., Lindsey v. Aldridge, 104 So. 3d 208, 217 (Ala. Civ. App.
2012) (upholding trial court’s finding that use of land for cow pasture did not
show that plaintiff asserting adverse possession “intend[ed] to claim ownership
of it when he used it”); Weeks v. Krysa, 2008 ME 120, ¶ 18, 955 A.2d
234, 239 (observing that encroachments “including pasturing cattle on property
and creating a brush fence to secure them, are not acts of sufficient notoriety
to support an adverse possession claim”); Harris v. Lynch, 940 S.W.2d
42, 46 (Mo. Ct. App. 1997) (“[I]t has generally been held that maintenance of a
non-boundary fence and allowing cattle to have access to undeveloped land,
while evidence of possession, are not sufficient in themselves to establish
adverse possession.”); McDonnold v. Weinacht, 465 S.W.2d 136, 142 (Tex.
1971) (holding that grazing of livestock, clearing of weeds, and construction
of fences were insufficient to support adverse-possession claim absent
“evidence that the land was designedly enclosed .  .  .  to show the assertion by anyone of a claim hostile to the
true owner”).  We thus find no basis to disturb the trial court’s ruling.
 
¶ 30.         Defendants
also claim that, even if they failed to establish adverse possession of the
entire railroad bed, they achieved ownership through constructive possession,
“the doctrine under which a claimant achieves possession of an entire plot
through actual occupation of a part.”  N.A.S.
Holdings, Inc. v. Pafundi, 169 Vt. 437, 441, 736 A.2d 780, 785 (1999). 
We have “recognized two methods of achieving constructive possession: (1) when
the claimant is operating under color of title and (2) when the land is marked
by clear and definite boundaries.” Id.  Although defendants assert
constructive possession based on both methods, their argument falters on the
trial court’s finding, which they have not shown to be clearly erroneous, that
defendants’ evidence generally was “non-specific as to the particular portions”
of the property they “actually occupied and possessed.”  Accordingly, the
constructive-possession claim is unavailing, and provides no basis to disturb
the judgment.
Affirmed.  

 


 


FOR THE COURT:


 


 


 


 


 


 


 


 


 


 


 


Chief
  Justice

 





[1] 
Although the trial court mistakenly stated that “nothing in the record shows
that the survey . . . was conducted prior to the agreement of the parties,” as
discussed below the error is immaterial.  
   


[2] 
Pursuant to statute, railroad corporations were authorized to undertake a
survey to locate the most advantageous route for a proposed railroad, and were
required to record the final location in the clerk’s office of each town
through which the railroad would pass.  See 1894 
V.S. §§ 3808, 3809.  These provisions are currently codified in 5 V.S.A.
§§ 3518, 3519.   
 


[3]
 The Preseault court explained that, to resolve the question, it
was compelled to “determine this question of state law ourselves,” 100 F.3d at 1534,
but it is, of course, beyond dispute that this Court is the final word on the
meaning of Vermont statutory and common law.    See Mullaney
v. Wilbur, 421 U.S. 684, 691 (1975) (“This Court . . . repeatedly has held
that state courts are the ultimate expositors of state law.”); Deeper Life
Christian Fellowship, Inc. v. Sobol, 948 F.2d 79, 84 (2d Cir. 1991) (“It is
well-established that the highest court of a state has the final word on the
meaning of state law.”). 


[4]
 “In invitum” connotes an action “[a]gainst an unwilling person,” Black’s
Law Dictionary 799 (8th ed. 2004), and is often used in connection with
proceedings in eminent domain.  See, e.g., City of
Winooski v. State Hwy. Bd., 124 Vt. 496, 500, 207 A.2d 255, 259 (1965).    



[5] 
Although this issue was not expressly raised below or on appeal, “[s]tanding is
a jurisdictional issue,” In re Verizon Wireless Barton Permit, 2010 VT
62, ¶ 20, 188 Vt. 262, 6 A.3d 713, and as such may be examined by this Court
“on our own motion, if necessary, when a defect appears.”  In re J.T., 166 Vt. 173, 181, 693 A.2d 283, 288 (1997).

 


[6] 
“A corporation may exercise only those powers that are granted to it by law, by
its charter or articles of incorporation . . . ; acts beyond the scope of the
power granted are ultra vires.”  Jones, supra, §
3399, at 6-7.  


[7]
 The Vermont Business Corporations Act, based on the Model Act, codifies a
similar rule limiting standing to challenge ultra vires corporate acts to
shareholders and the State acting through the Attorney General.  See 11A
V.S.A. § 3.04(b); Mass. Mun. Wholesale Elec. Co. v. State, 161 Vt. 346,
362-63, 639 A.2d 995, 1006 (1994); see also Brattleboro Retreat v. Town of
Brattleboro, 106 Vt. 228, 238, 173 A. 209, 213 (1934) (noting that, with
respect to enforcement of corporate charter limiting corporation’s right to
acquire and hold property, “the state alone could
interfere”).    


[8] 
Bradford West acknowledged that wire fences of a similar kind and vintage on
his property were erected and maintained to contain livestock.  
 


[9] 
Because some of the Wests’ agricultural activities occurred on lands leased
from the Marcuses’ predecessors-in-interest, the court included the Marcus
property within its discussion of the Wests’ claim.  
 


[10] 
The court identified one exception to this finding, consisting of a fractional
.221 acre identified by plaintiff’s surveyor as part of a “deed overlap” with
the Wests.  Plaintiff acknowledged, and the court found, that the Wests
had continuously farmed this small parcel for fifteen years, entitling them to
adverse possession.     



