Mahoney v. Tara, LLC, No. S1543-07 CnC (Crawford, J., Oct. 5, 2012)

[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
Chittenden Unit                                                                                        Docket No.: S1543-07 CnC

J. DANIEL MAHONEY, et al.,
      Plaintiffs

            v.

TARA, LLC,
     Defendant

                                            DECISION ON CROSS
                                      MOTIONS FOR SUMMARY JUDGMENT

        This case is before the court on remand from the Vermont Supreme Court. Mahoney v.
Tara, LLC, 2011 VT 3, 189 Vt. 557 (mem.). The parties to this action dispute the location of a
boundary separating two adjoining shore-front properties on Lake Champlain. By their
Amended Complaint, Plaintiffs seek to establish the boundary though claims of (1) adverse
possession; (2) acquiescence; and (3) prescriptive easement. Defendant Tara, LLC has moved
for summary judgment on plaintiffs’ claims of adverse possession and acquiescence, asserting
that the disputed property is shielded from these claims because it was used for a public, pious,
or charitable purpose. Plaintiffs have filed their own motion for summary judgment seeking to
establish that claims of acquiescence can be made against a property regardless of its use.

        Summary judgment is appropriate where “there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.” V.R.C.P. 56(a). The party
moving for summary judgment has the burden of proof, and the opposing party must be given
the benefit of all reasonable doubts and inferences in determining whether a genuine issue of
material fact exists. Price v. Leland, 149 Vt. 518, 521 (1988). However, a party may not “rest on
allegations in the pleadings to rebut credible documentary evidence or affidavits.” Gore v. Green
Mountain Lakes, Inc., 140 Vt. 262, 266 (1981). “Instead, the nonmoving party ‘must come
forward with an opposing affidavit or other evidence that raises a dispute as to the fact or facts in
issue.’” Clayton v. Unsworth, 2010 VT 84, ¶ 16, 137 Vt. 508 (citing Alpstetten Ass’n v. Kelly,
137 Vt. 508, 514 (1979)). ). Where both parties seek summary judgment, “each must be given
the benefit of all reasonable doubts and inferences when the opposing party’s motion is being
evaluated.” Northern Sec. Ins. Co. v. Rosenthal, 2009 VT 83, ¶ 4, 186 Vt. 578 (mem.) (citation
omitted).

                                                                    FACTS

      Plaintiffs and Defendant own adjacent parcels of land along Lake Champlain in
Colchester, Vermont. Plaintiffs’ family began renting a property on the lake (the Mahoney Lot)
in 1949 and eventually purchased it in 1976.1 Throughout their lease and ownership of the
Mahoney Lot, and by the terms of their deed, plaintiffs enjoyed the use of approximately
seventy-five feet of lake frontage.

        The adjacent lot to the northeast (the Tara Lot) was owned by Vermont Catholic
Charities, Inc. (VCC) from 1958 until 2006. During this time period, the Tara Lot was leased to
Camp Tara, Inc. which operated the property as a secular summer camp.2 In 2006, the property
was sold to Defendant Tara, Inc. (Tara). The following year Tara filed an application to
subdivide the Tara Lot. This application included a survey showing the Tara Lot’s southerly
boundary line cutting plaintiffs’ beach in half.

        Tara has submitted several affidavits in support of its motion for summary judgment.
The Vicar General and Chancellor of the Roman Catholic Diocese of Burlington, Vermont, John
McDermott, states by affidavit that “as demonstrated by this documentation and my personal
knowledge, the Camp Tara property was used and operated for charitable purposes from 1959
through 2003, always enrolling and serving children without regard to religion, race, or creed.”
Aff. of John McDermott ¶ 4 (dated May 4, 2012). The attached documents were official records
demonstrating that the summer camp served underprivileged children in the years 1959, 1968,
1978, 1988, and 1998.

         The Controller and Director of Professional Services of Vermont Catholic Charities,
Denise Payea, also asserted by affidavit that “as demonstrated by this documentation and my
personal knowledge, the Camp Tara property was used and operated for charitable purposes from
1959 through 2003, always enrolling and serving children without regard to religion, race, or
creed.” Aff. of Denise Payea ¶ 4 (dated May 4, 2012). Attached to her affidavit were several
letters from 1957–1959, the articles of in corporation of Camp Tara, Inc., leases between VCC
and Camp Tara, Inc. dated 1958 and 1982, a press release from 1967, and camp reports from
1970 and 1971. Ms. Peyea also explains that she spent two summers working at the camp during
college. Id.

        The Executive Director of Camp Tara from approximately 1977–1981, Paul Rabidoux,
asserts by affidavit that “Camp Tara was operated on a not-for-profit basis.” Aff. of Paul
Rabidoux ¶ 3 (dated April 20, 2012). He also states that “during [his] tenure as executive
director, Camp Tara operated a summer camp for underprivileged children, without regard to a
child’s religion. . . . No tuition or other fees were charged to campers; the entire budget for the
Camp was funded by [VCC].” Id. ¶ 5. And that “[s]o far as I can determine, Camp Tara operated
substantially the same way and used the same property prior to my term as executive director as
it did while I was the executive director.” Id. ¶ 13.

        The plaintiffs have summarily denied many facts asserted by plaintiff on the grounds that
defendant failed to provide sufficient evidentiary support and that the evidence does not establish
the use of the camp for the entire period between 1958 and 2006. In a sur reply, plaintiffs claim

1
 Plaintiffs’ Amended Complaint asserts that the predecessors of the Mahoney family claimed ownership of the
disputed property since 1939 and that any period of acquiescence also started in 1939.
2
    The camp was apparently known as Camp Iroquois prior to Camp Tara.

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that the property was not used for charitable purposes during the 44 weeks per year the camp was
not in session. Aff. of Patrick Mahoney ¶ 11 (dated July 30, 2012).


                                          DISCUSSION

        Defendant has moved for summary judgment on plaintiff’s claims of adverse possession
and acquiescence, arguing that these causes of action are unavailable against property dedicated
to a public, pious, or charitable use. Plaintiffs’ claim relating to a prescriptive easement is not
addressed by the pending motion for summary judgment.

               I.      Adverse Possession

         “[T]o prove adverse possession, one must demonstrate fifteen years of open, notorious,
hostile, and continuous possession.” In re Estates of Allen, 2011 VT 95, ¶ 14. In other words,
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.”
Barrell v. Renehan, 114 Vt. 23, 29 (1944).

         Vermont law exempts from claims of adverse possession “lands given, granted,
sequestered, or appropriated to a public, pious or charitable use.” 12 V.S.A. § 462. In
determining whether an entity qualifies for the § 462 exception, the court applies the three part
test articulated in American Museum of Fly Fishing v. Town of Manchester, 151 Vt. 103 (1989).
MacDonough-Webster Lodge v. Wells, 2003 VT 70, ¶¶ 11–13, 175 Vt. 382. Under this test, to
qualify for the charitable use exemption from claims of adverse possession the property must
meet three criteria: “(1) the property must be dedicated unconditionally to public use; (2) the
primary use must directly benefit an indefinite class of persons who are part of the public, and
must also confer a benefit on society as a result of the benefit conferred on the persons directly
served; and (3) the property must be owned and operated on a not-for-profit basis.” Am. Museum
of Fly Fishing, 151 Vt. at 110.

        Plaintiffs argue that property must be tax exempt to qualify for the protection from
adverse possession afforded by § 462, citing Wells, 2003 VT 70. Building on this, plaintiffs
argue that the Tara Lot is not tax exempt under 32 V.S.A. § 3832, which limits tax exemption for
properties owned by religious societies to certain uses such as church buildings and parsonages.
Plaintiffs misinterpret the holding in Wells.

        In Wells, the Vermont Supreme Court explained that the language, purpose, and date of
passage of § 462 and § 3802(4) are nearly identical. Wells, 2003 VT 70, ¶ 12. The Court then
reasoned that the same test—the Fly Fishing test—should be used to determine whether a
property qualifies for the charitable use exception under both statutes. Id. ¶¶ 11–13. It is
important to recognize that the Court neither applied other tax provisions nor indicated that the
entire body of statutes governing tax exemption should be considered in § 462 analysis. It
simply adopted a test which had already been developed to determine whether a property was
held for a public, pious, or charitable use. There is no basis to import other provisions of Title 32



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into the § 462 analysis, and the exception to the taxation exemption found in § 3832 is not
relevant to this case.

       In reaching this conclusion, the court has considered the following points:

        In remanding this case, the Vermont Supreme Court directed the trial court that “the
focus of the exemption [provided by section 462] is not on lands held by a public pious or
charitable user . . . but rather on ‘lands given, granted, sequestered or appropriated to a public
pious or charitable use.’” Mahoney, 2011 VT 3, ¶ 10 (quoting 12 V.S.A. § 462). The trial court
erred the first time in concluding its analysis with the determination that the land was owned by a
religious organization. Ownership, however, is not the test for purposes of § 462—use is the
test.

        In the current motions, it is the plaintiffs—the private camp owners—who now focus on
the issue of ownership by a religious society. They turn to 32 V.S.A. § 3832(2), which greatly
limits tax exemption for properties owned by religious societies. Only a few uses qualify for tax
exemption. These include church buildings, parsonages and convents, hospitals and homes for
the poor or disabled, and similar traditional institutions. For purposes of § 3832, the nature of
the organization that holds title is critical to the inquiry. See Our Lady of Ephesus House of
Prayer, Inc. v. Town of Jamaica, 2005 VT 16, ¶ 29, 178 Vt. 35 (excluding property from
exemption because it was owned by a “religious society” and did not fall within the specific uses
set out in 32 V.S.A. § 3832(2)).

        In contrast, § 462 provides protection against adverse possession to all property held for
three broad types of uses: public, pious or charitable. There is no further limitation of the type
imposed by § 3832(2) on “religious societies.” In giving meaning to the words “public, pious or
charitable,” the Wells decision adopted the Fly Fishing test, but it did not adopt the entire
structure of municipal tax exemption.

         The difference between § 462 and § 3832(2) opens the possibility of a mildly anomalous
result: property owned by a “religious society” might be protected from adverse possession but
still subject to local property tax. The justification for such a difference lies in the different
reasons for the two provisions. Property put to a public, pious or charitable use may be less
guarded by its communal owners against the threat of adverse possession than private land. See
Wells, 2003 VT 70, ¶ 10 (“Land qualifying for the exception lacks the protection of a discrete
individual or group’s long term interest in guarding the property against encroachments.”).

        Section 3832(2), on the other hand, protects the tax rolls, not the property owner. It is a
pocket-book provision. Ownership of property by a religious society is not sufficient; the
property must be used for specific purposes such as a house of worship or certain forms of
charitable activity. The reasons for treating pious organizations less favorably than secular
charities are historical and beyond the scope of this decision. The issue for this ruling is that the
membership of a religious society has the same need for protection against encroachment by its
neighbors as any other charitable organization or public body. The court will not limit the
statutory protection for “pious use” in § 462 by the additional—and very different—limitation
for “religious societies” that appears in § 3832(2).

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       The court now turns to the status of the Tara Lot while owned by VCC, and the
application of the Fly Fishing test. Defendant has put forth evidence that the property was
owned and operated on a not-for-profit basis for the purpose of benefitting under-privileged
youth. It asserts that the property therefore meets the Fly Fishing test, and is protected from
claims of adverse possession by § 462.

        Plaintiffs summarily deny many of the facts asserted by Tara, and question whether the
summary judgment record reflects the use of the property for the entire period from 1958 until
2006. Plaintiffs also dispute whether the “primary use” of the property—factor two of the Fly
Fishing test—was to benefit the public. Specifically, Plaintiffs Patrick Mahoney asserts that
“rentals by private groups for events such as weddings and conferences were a normal
occurrence when Camp Tara was not in session.” Aff. of Patrick Mahoney ¶ 11 (dated July 30,
2012). There is a dispute of fact relating to the primary use of the property which cannot be
resolved on summary judgment. Defendant’s motion on this issue is therefore DENIED.

        The court also notes that plaintiffs’ claim of adverse possession runs from 1939 until
2006. The VCC did not obtain the property until 1958. Therefore, plaintiffs may demonstrate
that they satisfied the elements of adverse possession prior to the VCC’s ownership and avoid
the application of § 462.

               II.     Acquiescence

        Defendant argues that § 462 bars claims of acquiescence against property used for a
public, pious, or charitable purpose in the same way that it bars claims of adverse possession.
The court previously determined that “the acquiescence claim cannot survive because it also
depends on completion of the 15-year period in § 501, made inapplicable by § 462.” Entry (dated
June 5, 2008) (Katz, J.). On appeal, the Vermont Supreme Court specifically declined to
consider this issue. Mahoney, 2011 VT 3, ¶ 13. Plaintiffs maintain that § 462 does not apply to
claims of acquiescence.

        “A boundary is established by acquiescence when there is mutual recognition of a given
line by adjoining landowners, and continuous possession by one to the line for a fifteen-year
period, which is the same as the period required to establish ownership by adverse possession.”
Okemo Mountain, Inc. v. Lysobey, 2005 VT 55, ¶ 14, 178 Vt. 608 (mem.) (citations omitted).
“[A]cquiescence in a wrong line will not establish it as the true boundary unless the demands of
the statute of frauds or adverse possession are met.” Haklits v. Oldenburg, 124 Vt. 199, 204
(1964). “[A] boundary line established by acquiescence . . . will give a perfected title by adverse
possession.” Beresford v. C.W. Gray and Sons, Inc., 138 Vt. 308, 309 (1980).

       In Vermont there is little, if any, distinction between acquisition through adverse
possession and acquiescence. As explained by Powell on Real Property, “those states
acknowledging that adverse possession’s ‘hostility’ requirement may be fulfilled innocently
sometimes admit no real distinction between the two doctrines.” 9 R. Powell, Powell on Real




                                                 5
Property § 68.05[3][c] (1999) (citing Beresford, 138 Vt. 308; Haklits, 124 Vt. 199).3 Indeed, the
Vermont Supreme Court specifically stated that a boundary cannot be set by acquiescence unless
the elements of adverse possession are met. Haklits, 124 Vt. at 204.

         Plaintiffs assert that the Vermont Supreme Court has determined a boundary by
acquiescence despite finding that the elements of adverse possession did not exist, citing Brown
v. Derway, 109 Vt. 37, 43 (1937). The Court in Brown was called on to determine the boundary
between two parcels of land.4 The disputed boundary was described by deed as terminating at an
oak tree. Id. at 40. The tree was no longer in existence at the time of the action, and the Court
held that the former location of the oak tree was a question of fact to be proved at trial. Id. at 44.
With regard to acquiescence, the Court stated that “acquiescence in a wrong line will not
establish it as the true line, such acquiescence for a long period of time is evidence that such line
is the true line.” Id. at 43. The ruling referred only to proper evidence at trial, and did not
purport to determine a boundary by acquiescence.

       This court can find no Vermont case which holds that a party may acquire property by
acquiescence without meeting the elements of adverse possession. It appears that acquiescence
is merely a special form of adverse possession. Because of this, the court is convinced that
claims of acquiescence are controlled by § 462 in the same way as claims of adverse possession.

      Finally, like the claim of adverse possession, plaintiffs may establish that the disputed
boundary was established by acquiescence prior to VCC’s ownership of the Tara Lot.

                                                CONCLUSION

Pursuant to 12 V.S.A. § 462, property is protected from claims of adverse possession and
acquiescence if it is dedicated to a public, pious, or charitable use.

To determine whether the Tara Lot was dedicated to a public, pious, or charitable use, the court
will apply the Fly Fishing test and disregard other tax provisions.

Because there are material disputes of fact regarding the primary use of the Tara Lot between
1958 and 2006, the court cannot determine whether the Fly Fishing test is met, and defendant’s
motion for summary judgment on plaintiffs’ claims of acquiescence and adverse possession is
DENIED.




3
  As explained in Jarvis: “Hostility, when used in the context of adverse possession, does not require the presence of
ill will toward the actual owner nor destructiveness toward the land. Rather, what is required is that the adverse
possessor intends to claim the land and treat it as his own.” 155 Vt. at 641.
4
    Coincidentally, one parcel was owned by a church and housed a summer camp. Brown 109 Vt. at 39.

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Plaintiff’s cross-motion for summary judgment which raises the same issues is also DENIED.



DATED                       at Burlington, Vermont,

                                    ______________________
                                    Geoffrey Crawford
                                    Presiding Judge




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