Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal.

                                           ENTRY ORDER

                           SUPREME COURT DOCKET NO. 2014-092

                                     SEPTEMBER TERM, 2014

 Thomas W. Chase, Harold Chase and                     }    APPEALED FROM:
 Ralph Chase                                           }
                                                       }
                                                       }    Superior Court, Windham Unit,
    v.                                                 }    Civil Division
                                                       }
                                                       }
 Taft Hill Tree Farm, Inc., Eric S. Scott and          }    DOCKET NO. 458-10-11 Wmcv
 Patricia M. Scott                                     }

                                                            Trial Judge: John P. Wesley

                          In the above-entitled cause, the Clerk will enter:

        Plaintiffs appeal the superior court’s decision granting summary judgment to defendants
on their claims to a disputed area of land based on record title and adverse possession. Plaintiffs
argue that summary judgment was inappropriate because there are disputed questions of material
fact on both issues. We affirm.

                                   I. Facts and Proceedings Below

        The parties own abutting tracts of land. Their holdings approximate the land comprising
two former farm properties: one formerly known as the Hazelton Farm, roughly corresponding to
plaintiffs’ property, and the other formerly known as the Taft Farm, roughly corresponding to
defendants’ property. The disputed area of land is approximately nine acres and lies between the
parties’ properties. It is located to the east of Back Windham Road in Townshend. Defendants
own the land on the west side of the road and plaintiffs own land to the north and east of the
disputed parcel. The parcel is bounded to the south by a stone wall, which also forms the
southern border of plaintiffs’ land. There is another stone wall that runs north-south parallel to
Back Windham Road and divides the disputed property in two.

        Plaintiffs filed an action to quiet title, claiming they had record title to the property
traceable to a 1958 deed to their predecessors in title that they claimed described the disputed
parcel. They also asserted ownership through adverse possession. Defendants counterclaimed,
asserting record title to the disputed tract. Defendant moved for summary judgment, tracing title
to the disputed parcel back to the nineteenth century. The trial court denied defendants’ initial
motion for summary judgment. Reviewing the undisputed evidence, the trial court concluded
that it was clear, as of 1873, that the disputed property was part of the Taft Farm. However,
because there was insufficient evidence linking the 1873 deed to the 1958 conveyances upon
which plaintiffs relied, the trial court ordered defendants to produce additional briefing and
records concerning the conveyances of the property between 1873 and 1958. Defendants
complied, and after a hearing the court issued a written decision granting defendants’ motion for
summary judgment.
        After reviewing the relevant deeds, the court recounted the undisputed facts concerning
the property. The stone wall bisecting the parcel marks what was the eastern boundary of the
Taft Farm (now defendants’ property) prior to 1812. There was no evidence that the portion of
the land east of the road and west of the bisecting wall was ever conveyed out of the Taft Farm
chain of title. As to the portion of the property east of the bisecting wall, the undisputed
evidence demonstrated that in May 1812, Peter Hazelton conveyed the parcel to Peter Rawson
Taft. That conveyance established a new eastern line for Taft Farm approximately 600 feet east
of the stone wall.

        The court explained that there was no evidence that after 1812, the parcel east of the
stone wall and west of the Hazelton Farm was ever conveyed out of the Taft Farm chain of title.
The undisputed facts showed that in 1873, the owners of Taft Farm, two Howard brothers,
conveyed two parcels to the owner of Hazelton Farm, Samuel E. Williams. This conveyance
effectively restored to Hazelton Farm the land granted to Peter Taft in 1812 except for the
disputed parcel, which remained part of the former Taft Farm. The property conveyed in 1873
abuts the disputed parcel to the north and the southern boundary of the conveyed property
described in the deed also delineates the northern boundary of the disputed parcel. The southern
boundary of the conveyed parcel was described in the 1873 deed as running “thence south 76
degrees east to a stake and stones on the east line of [the former Hazelton Farm].”

        From 1873 to present, the conveyances in the Taft Farm chain of title include the
disputed parcel. In the first conveyance in this period, in 1882, the Howard brothers conveyed
property to Samuel Barber on both sides of the Back Windham Road, and in the deed the
northern boundary of the conveyance is described as “the southerly side of Samuel E. Williams
land”—in other words, the line established by the 1873 conveyance. Based on this, the court
found that it was undisputed that the deed to Barber included the parcel. Thereafter, the chain of
title demonstrates that the parcel passed, and there were no conveyances out. Although the deeds
do not contain a metes-and-bounds description, the court concluded there was no dispute that the
parcel was included in the deeds and remained intact until acquired by defendants.

        Plaintiffs’ claim to title rested on a deed from Herbert Bernap to plaintiffs’ parents dated
April 26, 1958. This deed described the property conveyed by Bernap as “bounded on the west
by the back highway leading from West Townshend Village to the Village of South Windham.”
Plaintiffs’ expert attested that in his opinion some portion of the disputed parcel was included in
this deed. Defendants sharply contested plaintiffs’ reading of the 1958 deed, arguing that it
conveyed only the parcel conveyed back to the Hazelton Farm in 1873—which is bounded on
the west by the highway. The court concluded that there was no evidence to demonstrate Bernap
owned the land in question at the time of the conveyance or that any portion of the disputed
parcel was ever conveyed out of defendants’ chain of title.

        For a description of the property, the court relied on a survey completed by Dauchy
Associates, Inc., dated December 1990. The survey was admitted into the summary judgment
record by stipulation. The boundaries portrayed in the survey correspond to the analysis and
diagrams of defendants’ expert. In 2008, plaintiffs subdivided portions of their property north of
the disputed parcel. That deed utilized the identical description of the southern boundary of the
land as described in the Dauchy survey and very similar to that of the description of the property
conveyed in 1873.

       Based on these facts, the court concluded that defendants were entitled to judgment as a
matter of law because defendants’ chain of title demonstrated continuous ownership of the

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disputed property. Although plaintiffs asserted ownership on the basis of the 1958 deed from
Bernap to plaintiffs’ parents, the court explained that plaintiffs did not support with evidence
their claim that Bernap had title to property in 1958. Because Bernap could convey only that
which he owned, the court concluded that the disputed parcel was not conveyed in this
transaction. The court further concluded that plaintiffs had failed to challenge the description of
the parcel as set out in the 1812 and 1873 deeds and had acquiesced in the Dauchy survey
platting of the boundary because plaintiffs had failed to challenge the survey after they received
it in 1991 and had used it as a description of the boundary between their property and the
disputed parcel in their 2008 subdivision.

        Plaintiffs’ claim of adverse possession rested on their assertions that: plaintiffs paid taxes
on the property; plaintiffs had a history of logging the land once in the 1940s and once in the
1970s; one plaintiff remembered his father posting the property “along the Back Windham Road
down to its southerly boundary over the years”; plaintiffs have included the disputed property in
their current-use registration; and one plaintiff testified by affidavit that he never observed any
evidence of use by defendants of the disputed property during his life. The court determined that
the tax maps did not confirm the payment of taxes. As to the other evidence, the court concluded
that enrollment in the current-use program was not a hostile use, the logging activities were too
insubstantial to be continuous, and the claims of posting the land were too vague to establish
open, notorious, hostile and continuous use. Therefore, the court also granted defendants
summary judgment on plaintiffs’ adverse possession claim. Plaintiffs appeal.

                                          II. Record Title

       On appeal, we apply the same standard as the trial court: summary judgment is
appropriate when the record demonstrates there is no genuine issue of material fact and that any
moving party is entitled to judgment as a matter of law. V.R.C.P. 56(a). In determining whether
a genuine issue of material fact exists, we regard as true all allegations of the nonmoving party
supported by admissible evidence, and we give the nonmoving party the benefit of all reasonable
doubts and inferences. Lane v. Town of Grafton, 166 Vt. 148, 150 (1997). A party must support
an assertion that a fact is undisputed with citation to documentary evidence, such as depositions
or documents. V.R.C.P. 56(c)(1). When a motion for summary judgment is properly supported
and the adverse party does not properly support a contested fact, the court may consider the fact
undisputed for purposes of the motion. V.R.C.P. 56(e).

        Plaintiffs do not point to any deeds reflecting a conveyance from the Taft Farm chain of
title to their own chain of title of the disputed property, and do not assail the trial court’s
assessment of the chain of title generally. Instead, they focus on the deed descriptions of the
disputed property as they relate to present-day evidence on the ground of the boundaries. They
argue that the court erred in granting summary judgment because there is a dispute of fact
concerning the boundaries of the disputed parcel to the north and east.

       Plaintiffs concede that the 1812 deed to the owners of the Taft Farm included a specific
metes and bounds description that conveyed record title to the Taft Farm that included the
disputed parcel. And they do not contest that in 1873, the owners of Taft Farm conveyed back to
the owners of the Hazelton Farm only a portion of that disputed parcel, retaining the balance for
the Taft Farm. Plaintiffs focus their argument on the description in that 1873 deed as it relates to
the monuments on the ground today. Plaintiffs contend that the description of the applicable
subdivision line—“thence south 76º east to a stake and stones on the east line of the said late
Charles E. Howard, said farm thence northerly on the east line of said late Charles E. Howard

                                                  3
farm” contains no monumentation of the beginning point of the bearing, nor an end point, nor a
distance. To the extent that defendant’s expert relied on a large yellow birch tree in a stone pile
at the easterly end of the line on the easterly bound of the Taft Farm, as it existed in 1812, to
connect the deed description to its survey on the ground, plaintiffs argue, that conclusion rests on
a disputed fact. Plaintiff’s expert submitted an affidavit reflecting that he could not find any
evidence on the ground of a boundary or termination as referenced in the 1873 deed, and one of
the plaintiffs swore by affidavit that he had not seen a yellow birch tree and stone pile or any
other evidence of boundary in the area marked by the surveyor.

        Plaintiffs have failed to show any dispute of fact as to record title. Although plaintiffs
question defendant’s survey delineating the boundary between the parcel retained by the Taft
Farm and that conveyed back to the Hazelton Farm in 1873, they have acknowledged that they
have no contrary evidence as to the metes and bounds of the disputed boundaries. Plaintiffs
agreed that as of 1812, defendants’ predecessor-in-title held title to the disputed parcel. Plaintiffs
also agreed that the disputed property was defined by the 1812 (eastern boundary) and 1873
(northern boundary) conveyances. Based on these descriptions, the Dauchy survey platted the
lines of the parcel. While plaintiffs contend that defendants’ expert inaccurately interpreted to
the deed to locate the actual boundary line on the ground, plaintiffs failed to offer any
countervailing evidence as to where the line should be located.1

        More significant to our conclusion, plaintiffs’ challenges to defendants’ survey do not
connect to plaintiffs’ own claims. Plaintiffs based their claim to title on their interpretation of
the 1958 Bernap deed, but provided no evidence of how title to the disputed parcel—concededly
part of the Taft Farm as of 1812—made its way to plaintiffs’ predecessors in title. Vt. Shopping
Ctr., Inc. v. Pettengill, 125 Vt. 145, 148-49 (1965) (grantor is limited to conveying property that
he or she owns). Plaintiffs concede that they cannot show through the chain of title how Bernap
acquired title to the disputed parcel purportedly conveyed in the 1958 deed. In fact, the deed
upon which plaintiffs rely purports to convey to them title to the property all the way westward
to the Back Windham Road—including the property to the west of the stone wall that plaintiffs
acknowledge was part of the original Taft Farm and was never conveyed out, and to which
plaintiffs do not actually claim record title despite the 1958 deed. Nor do plaintiffs attempt to
explain the basis for the property description in the Bernap deed on which they rely.

        Without saying so, plaintiffs essentially argue that, although the disputed parcel was
undisputedly included in the Taft Farm at some point, because the subsequent deeds conveying
property from the Taft Farm do not contain metes and bounds descriptions of the property
conveyed, and are difficult to link to monuments on the ground, we should simply ignore the
Taft Farm line of deeds and instead recognize a purported conveyance of the disputed parcel
originating in a 1958 deed despite the lack of any evidence that the grantor in that deed had
record title to convey. As a matter of law, plaintiffs’ critiques of defendants’ survey cannot
overcome plaintiffs’ failure to establish record title on the basis of the deeds in this case.



       1
           Plaintiffs claim that the court incorrectly found that they had acquiesced in the Dauchy
survey’s depiction of the disputed parcel’s boundaries by failing to challenge the survey and by
utilizing it to describe the boundary in a 2008 subdivision of the property north of the disputed
parcel. Plaintiffs argue that acquiescence requires a fifteen-year period and cannot be made
through internal division. We do not rest our affirmance of the trial court’s award of summary
judgment on the theory that plaintiffs acquiesced to the boundary reflected in the Dauchy survey.
                                                   4
        Plaintiffs fault the trial court for failing to analyze their claims using the statutory
definition of “marketable title” as opposed to traditional concepts of “record title.” 27 V.S.A.
§ 601(a) (“Any person who holds an unbroken chain of title of record to any interest in real
estate for 40 years, shall at the end of that period be deemed to have a marketable record title to
the interest . . . .”). “Marketable title” is defined as “title that will enable the purchaser to hold
the land purchased free from the probable claim by another, a title which, if he wished to sell,
would be reasonably free from doubt.” Trinder v. Conn. Attorneys Title Ins. Co., 2011 VT 46,
¶ 16, 189 Vt. 492 (quotation and alternations omitted). Marketable title is relevant to a host of
questions, such as coverage under certain title insurance benefits. Id. ¶ 17. But a claim of
“marketable title” pursuant to the statute does not trump a claim of record title pursuant to a
chain of deeds.

                                      III. Adverse Possession

       Plaintiffs argue that summary judgment was incorrect because they presented sufficient
evidence to establish the elements of adverse possession. “To achieve title through adverse
possession, a claimant must show that use of the land was open, notorious, hostile and
continuous throughout the statutory period of fifteen years.” First Congregational Church of
Enosburg v. Manley, 2008 VT 9, ¶ 13, 183 Vt. 574 (mem.) (quotation omitted). “Adverse
possession is a mixed question of law and fact.” Id. ¶ 12. Because this was a summary
judgment decision, the question is whether the undisputed facts, viewed in the light most
favorable to plaintiffs, are sufficient to meet the adverse-possession elements as a matter of law.

         On appeal, plaintiffs assert that their logging activities (one time in the 1940s, although
plaintiff cannot recall whether he has personal knowledge of the logging, and one time in the
1970s) were sufficient to create the type of open, notorious, continuous, and hostile use
necessary to establish adverse possession. Plaintiffs rely on Amey v. Hall, 123 Vt. 62, 67
(1962), in which this Court explained that the “kind and frequency” of occupancy is dependent
on the nature of the premises, and therefore regular harvesting of a woodland could establish
continuous use. Plaintiffs also cite to Jarvis v. Gillespie, 155 Vt. 633 (1991), which explained
that “using property only at certain times of the year for certain activities and not using it for the
rest of the year can constitute sufficiently continuous use for adverse possession.” Id. at 640.

        We conclude that plaintiffs’ evidence was insufficient to establish open and continuous
use. Certainly, the type of use can vary, but it must demonstrate a claim to the land. As this
Court has stated the claimant must “unfurl his flag on the land, and keep it flying.” In re Estates
of Allen, 2011 VT 95, ¶¶ 14, 190 Vt. 301 (quotation omitted). The facts here are unlike Jarvis,
in which the claimant demonstrated several activities—cutting firewood and trees, parking
vehicles, logging, storing wood—and was never absent for as long as a year. Here, one plaintiff
averred that he believed the property was logged in the 1940s and he remembers logging it in the
1970s. These acts were too sporadic and irregular to “put a person of ordinary prudence on
notice of the claim,” 155 Vt. at 641, and to show the necessary continuous and open use. See In
re Estates of Allen, 2011 VT 95, ¶¶ 14-15 (holding that intermittent use was insufficient to
establish continuity requirement of adverse possession). Nor is Amey squarely on point. In that
case, this Court affirmed the trial court’s inference that a property owner’s acquiescence to a
blazed line between properties in its logging operations one year marked the beginning of its
period of acquiescence to the marked boundary. 123 Vt. at 67. There is no evidence here of a
marked boundary line on the ground, or that the past logging operations alleged by plaintiff
followed that boundary.


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        Nor does the vague statement of one of plaintiff’s witnesses that he recalls his father
posting along the Back Windham Road to the southerly boundary through the years save
plaintiffs’ claim from summary judgment. Without some particulars as to where and when the
posting occurred, and how frequently, this testimony is insufficient to survive summary
judgment. Accordingly, we affirm that that plaintiffs failed to demonstrate adverse possession as
a matter of law.

         Finally, plaintiffs assert that the Burnap deed gave them constructive possession of the
parcel under color of title. Adverse possession may be asserted through a claim of color of title;
that is, a claimant can assert constructive possession of an entire tract of land by showing the
appearance on its face of a claim to present title in the land, and actual and exclusive occupation
of part of the deeded premises. Cmty. Feed Store, Inc. v. Ne. Culvert Corp., 151 Vt. 152, 156
(1989); see N.A.S. Holdings, Inc. v. Pafundi, 169 Vt. 437, 440 n.3 (1999) (explaining that
claimant can assert constructive possession based on occupation and appearance of claim to
present title). Here, plaintiffs assert that the Burnap deed gave them title to the disputed parcel
and therefore they are operating under color of title. Even assuming that the Burnap deed on its
face appears to convey title to the disputed parcel—an assertion sharply contested by
defendants—plaintiffs’ argument fails because they did not present evidence that they actually
and exclusively occupied any part of the premises purportedly conveyed by the 1958 deed. The
entirety of the evidence they have proffered in this point is one of the plaintiff’s testimony that
he participated in logging on the parcel one time in the 1970s and vague testimony that he
remembers his father posting the property.2 This is insufficient to establish the exclusive
occupation required to support a claim for constructive possession under color of title.

       Affirmed.

                                                BY THE COURT:


                                                _______________________________________
                                                John A. Dooley, Associate Justice

                                                _______________________________________
                                                Marilyn S. Skoglund, Associate Justice

                                                _______________________________________
                                                Beth Robinson, Associate Justice




       2
         The other instance of logging of this property described by this witness occurred in the
1940s, before the 1958 deed, so could not have been undertaken under color of title.
                                                6
