McAdams v. Town of Barnard (2005-542)

2007 VT 61

[Filed 20-Jul-2007]


       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,
  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.


                                 2007 VT 61

                                No. 2005-542


  Herbert Hall McAdams III and                   Supreme Court
  Letty McAdams
                                                 On Appeal from
       v.                                        Windsor Superior Court


  Town of Barnard                                March Term, 2007


  Theresa S. DiMauro, J.

  Karen McAndrew and Douglas D. Le Brun of Dinse, Knapp & McAndrew, P.C.,
    Burlington, and  Kent J. Rubens of Rieves, Rubens & Mayton (Of Counsel),
    West Memphis, Arksansas, for  Plaintiffs-Appellants.

  Timothy M. Eustace of Stitzel, Page & Fletcher, P.C., Burlington, for
    Defendant-Appellee.

  PRESENT:  Reiber, C.J., Dooley, Johnson, Skoglund and Burgess, JJ.

        
       ¶  1.  BURGESS, J.   Herbert and Letty McAdams ("landowners")
  brought this action in superior court against the Town of Barnard for
  declaratory judgment to quiet title to their land in Barnard.  Landowners'
  motion for summary judgment was granted in part, providing them with a
  judgment order stating that "there are no known public roads, easements,
  rights-of-way or trails" (hereinafter "public road" or "road") on their
  property.  To the extent landowners sought additional relief in the form of
  a judgment that no other public roads exist, the court granted the Town's
  motion to dismiss.  Landowners appealed the judgment, believing a
  definitive statement that there are no public roads on their land is
  necessary to quiet title.  We reverse and remand.

       ¶  2.  The facts are not in dispute.  Landowners hold title to
  approximately 280 acres in Barnard ("the property").  In 2001, landowners
  sought to make improvements to the property.  As part of this process, they
  requested that the Town discontinue an abandoned, dead-end road, Town
  Highway (TH) #15, that crossed the property.  The Town conducted a
  discontinuance hearing pursuant to 19 V.S.A. § 709 (requiring notice and
  hearing to discontinue a road) and discontinued the portion of TH #15
  crossing the property.  Some time later, landowners were granted a building
  permit for their improvements, but a group of Town residents appealed
  issuance of the permit.  Landowners ultimately prevailed in obtaining the
  permit after they appealed to the Environmental Court.  Landowners then
  filed suit in federal court against the residents who had opposed the
  permit, claiming that the residents had acted in concert with state actors
  to deprive landowners of the permit in violation of their constitutional
  rights to due process and equal protection.  The Town itself was not named
  as a defendant in that suit.

       ¶  3.  In 2003, the Town produced a set of maps depicting all parcels
  of land and known public highways and rights-of-way within the Town.  The
  Town's maps indicated another public road, "Dean Road," crossed a portion
  of the property.  There was also reference in Town records to another road
  of undetermined location, known as the "page 4 survey road" or "Fairbanks
  Road" that possibly affected landowners' title.  Landowners thereafter
  filed the present suit against the Town to determine whether any valid town
  highways or rights-of-way existed on the property. 
   
       ¶  4.  In August 2004, the Town and landowners entered into a
  mediation agreement in the present case.  The Town agreed to initiate § 709
  proceedings to discontinue Dean Road and Fairbanks Road.  The Town also
  agreed to admit that it was not aware of any other roads or rights-of-way
  and that it claimed no interest in any roads or rights-of-way on the
  property.  The agreement provided that, when these tasks were completed,
  landowners could move for summary judgment, with the Town reserving its
  right to respond to such a motion.  In November 2004, the Town initiated
  proceedings to discontinue the two roads. 

       ¶  5.  Meanwhile, in the federal suit, landowners moved to amend their
  complaint to add the Town as a defendant.  Prior to a ruling on that
  motion, a mediation session was held in January 2005.  At the mediation
  session, all parties to the federal suit and the Town entered into a
  Memorandum of Settlement that provided in pertinent part:


         3.  The Town of Barnard agrees, subject to formal Selectboard
    approval, that it will promptly take all appropriate legal steps
    to discontinue any known or claimed town roads or highways that
    traverse or lie within the McAdams' property, including taking all
    steps necessary to ratify its prior action in discontinuing TH 15. 
    Warnings to accomplish the foregoing shall be published no later
    than 30 days after the signing of this Agreement, and the action
    shall proceed with all deliberate speed.

         4.  The Town agrees that if any other roads on the McAdams'
    property not presently known, become know[n], the Town will at
    that time take all appropriate steps to initiate discontinuance
    proceedings with respect to such newly-discovered ancient roads.

         5.  The defendants, as individuals and in their official
    capacities, agree that they will not appeal or interpose any
    objection to the Town's actions in discontinuing the roads as
    stated in Paragraphs 3 [and] 4.

         6.  The parties will exchange releases with respect to all
    claims, including but not limited to all claims for costs and
    attorneys' fees pursuant to 42 U.S.C. §§ 1983 and 1988, and
    settlement consideration at such times as the steps taken in
    Paragraph 3 have been accomplished and court orders have been
    entered on the settlement agreements in both the pending state and
    federal cases, and the actions have been dismissed, with
    prejudice.

  The Town completed discontinuance of all three known roads,(FN1) and
  subsequently requested landowners to stipulate to dismissal of the state
  court action pursuant to the federal mediation agreement.  Landowners
  refused to agree to dismissal, maintaining that they were entitled to move
  for summary judgment on their claim for declaratory judgment pursuant to
  the state mediation agreement.  Landowners subsequently filed a motion for
  summary judgment on June 20, 2005.  At a hearing in superior court to
  discuss the proposed stipulated dismissal and landowners' objections to it,
  the court indicated that it would wait for a formal motion to dismiss from
  the Town and rule on both motions together. 
   
       ¶  6.  In support of dismissal, the Town argued first that it had
  complied with the federal settlement agreement and the case should be
  dismissed on that basis.  The Town further argued that the case had become
  moot when all known roads over the property were discontinued and that the
  court was without authority to declare any remaining, unknown roads to be
  nonexistent when the statute provided only for discontinuance by town
  selectboards.  Landowners took the position that the federal court
  settlement agreement did not supersede the state settlement agreement's
  provision that the state case would be decided on summary judgment.  At
  most, said landowners, the federal court agreement was ambiguous and other
  evidence pointed to their intent that the state case not be dismissed.  In
  response to the Town's mootness argument, landowners maintained that a
  quiet title action is not moot until all of a party's claims to a property
  are resolved, and that had not yet happened because there still existed the
  possibility that the Town could, at some later time, claim some newly
  discovered right-of-way across the property.  Landowners further maintained
  that it was within the court's equitable power to declare the existence or
  nonexistence of roads, the statutory provisions for discontinuance
  notwithstanding.

       ¶  7.  The lower court's decision adopted all of the Town's arguments
  and concluded that landowners were not entitled to the judgment they sought
  for three reasons.  First, the court said, the undisputed facts supported
  only a conclusion that there were no known public roads on the property,
  not that there were no public roads at all.  Second, the court lacked
  authority to declare the non-existence of any public roads because roads
  may only be discontinued in accordance with a statutory procedure. 
  Finally, the Town was entitled to dismissal based on the federal settlement
  agreement.

       ¶  8.  On appeal, neither party briefed dismissal pursuant to the
  federal settlement agreement, focusing instead on the superior court's
  authority for declaring the nonexistence of any roads on a property and
  whether there was an actual case or controversy remaining.  Arguments not
  briefed are waived.  Bigelow v. Dep't of Taxes, 163 Vt. 33, 37-38, 652 A.2d
  985, 988 (1994).  We therefore move to the issues of mootness and the
  court's authority to declare the nonexistence of roads.(FN2) 
                                                               
       ¶  9.  Landowners brought this suit as a declaratory judgment action
  to quiet title.  Declaratory judgment is appropriate when a judgment "will
  terminate the controversy or remove uncertainty."  12 V.S.A. § 4715.  This
  controversy must involve the threat of actual injury to a party's protected
  interest.  Doria v. Univ. of Vt., 156 Vt. 114, 117, 589 A.2d 317, 318
  (1991).  Otherwise, "a declaratory judgment is merely an advisory opinion
  which [courts] lack the constitutional authority to render."  Id.  The Town
  does not dispute that the two claimed public rights-of-way provided a
  sufficient controversy to give the court jurisdiction at the time that
  landowners filed suit.  The Town claims that by discontinuing the two known
  roads, any threat of actual injury to landowners ended, and consequently,
  jurisdiction was extinguished.  

       ¶  10.  Accepting the Town's position would allow quiet title
  defendants to escape final resolution of all potential disputes by taking
  each claim piecemeal.  An adjudication that a right-of-way does not exist
  in one place on a property would not preclude subsequent litigation as to
  whether a right-of-way exists in another place on the same property.  Some
  jurisdictions have taken a more economizing approach that provides for all
  potential disagreements to be adjudicated at one time: "The object of the
  [quiet title] action is to finally settle and determine, as between the
  parties, all conflicting claims to the property in controversy, and to
  decree to each such interest or estate therein as he may be entitled to." 
  W. Aggregates, Inc. v. County of Yuba, 130 Cal. Rptr. 2d 436, 456 (App.
  2002) (quotations omitted) (affirming finding that historic public road
  existed on plaintiff's property).  A conflicting claim need not be active
  at the time of adjudication:

    [W]here a person is seized and possessed of a legal estate or
    interest and is unable to obtain an adequate legal relief against
    an invalid adverse title or right therein apparently arising under
    a deed, instrument or proceeding relating to real estate so that
    such deed, instrument, or proceeding may injuriously or
    vexatiously affect or embarrass the owner's title, or render
    precarious or doubtful his ability to produce existing extrinsic
    proof when, in the future, the adverse claimant would seek to
    enforce the adverse title or right which is being held in
    abeyance, the owner's privilege to have recourse to equity to have
    the cloud in his title or interest removed is unquestioned . . . .

  Homewood Realty Corp. v. Safe Deposit & Trust Co. of Baltimore, 154 A. 58,
  64 (Md. 1931) (emphasis added) (affirming adjudication in quiet title
  action of defendant's use of plaintiff's air space for opening and closing
  shutters when plaintiff was otherwise without remedy to clear title). 
  Thus, while there must be a threat of actual defect to a landowner's title
  for a case or controversy to exist, the threat can extend to claims that
  are not actively being pursued.

       ¶  11.  In this case, landowners filed suit after three roads had been
  identified on the property, at least two of which were legal rights-of-way
  claimed by the Town.  The existence of these roads gave rise to a threat of
  actual defect in title and, thus, a justiciable case or controversy. 
  Resolution of the title dispute should then include all potential claims,
  to resolve once and for all, as between the parties, the title to the
  subject land.(FN3)  Accordingly, we agree with landowners that when a
  party has claimed the existence of a right-of-way, a judgment expressing
  whether there are or are not any existing rights-of-way is ordinarily
  appropriate.  However, this case is complicated by the fact that the party
  that claimed a right-of-way is a municipality.  We next consider the effect
  of such a judgment in light of the statutory framework for discontinuing
  public roads. 
   
       ¶  12.  The Town argues that courts are without authority to declare
  the nonexistence of public rights-of-way when discontinuance of a public
  road may only be performed in accordance with statutory procedures.  Before
  discontinuing a road, the town's selectboard must give public notice,
  examine the premises, and hold a hearing.  19 V.S.A. § 709.  Failure to
  comply with these procedures will render any purported discontinuance void. 
  In re Bill, 168 Vt. 439, 442-45, 724 A.2d 444, 446-48 (1998) (finding road
  was not discontinued when selectboard failed to comply with then-applicable
  procedure for discontinuance); Capital Candy Co. v. Savard, 135 Vt. 14,
  16-17, 369 A.2d 1363, 1365-66 (1976) (holding that mere abandonment does
  not constitute discontinuance because statutory procedure for
  discontinuance has not been followed).  While the Town is correct that a
  selectboard must follow statutory procedures to validly discontinue a road,
  this does not preclude adjudication of the issue of whether there are any
  existing public roads on a property.  

       ¶  13.  Determining whether any public roads exist is not the same as
  a discontinuance.  Discontinuance is performed to extinguish a known road. 
  Here, the court is being asked to determine simply whether any roads exist.
  (FN4)   The Town argues that a declaratory judgment "would effectively
  'discontinue' any and all currently unknown, but subsequently discovered,
  town highways across [the property]."  Implicit in this argument is the
  Town's belief that it is impossible for the parties and, consequently, the
  court to determine with absolute certainty whether any additional roads
  exist over the property.(FN5)  The difficulty in determining whether
  abandoned roads still legally exist stems from inconsistent, and sometimes
  incomprehensible, town records dating back two centuries or more.  See
  generally P. Gillies, Sleeping Roads, Vt. Bar J., Spring 2004, at 14-16. 
  However, these difficulties should not preclude judgment in landowners'
  favor where the burden was on the Town to prove any right it had to the
  property.  Beulah Hoagland Appleton Qualified Personal Residence Trust v.
  Emmet County Road Comm'n, 600 N.W.2d 698, 700 (Mich. App. 1999) ("In an
  action to quiet title, the plaintiffs have the burden of proof and must
  make out a prima facie case of title.  If the plaintiffs make out a prima
  facie case, the defendants then have the burden of proving superior right
  or title in themselves." (citation omitted)).  The burden was thus fairly
  placed on the Town to review its own records and discern whether any roads
  existed.  That the Town might be barred in the future from asserting a
  right-of-way based on a newly discovered, but now unknown, road is not a
  "discontinuance" as contemplated by § 709, but is a function of res
  judicata or collateral estoppel precluding successive litigation over
  matters that the Town could have raised in the instant case.  See In re St.
  Mary's Church Cell Tower, 2006 VT 103, ¶¶  3, 12, __ Vt. __, 910 A.2d 925
  (mem.) (barring litigation of a claim that was or could have been fully
  litigated in prior proceeding); Scott v. City of Newport, 2004 VT 64 ¶ 8,
  177 Vt. 491, 857 A.2d 317 (mem.) (listing as a criterion of collateral
  estoppel that there was a "full and fair opportunity to litigate the issue"
  previously).

       ¶  14.  We emphasize that landowners may attain the remedy sought in
  this case only because abandoned, but legally existing, roads had been
  identified by the Town and still existed at the time suit was filed.  These
  circumstances gave rise to a threat of actual defect in title from both
  identified and unidentified dormant roads and, thus, a justiciable case or
  controversy.  

       Reversed and remanded for determination of the existence of any public
  roads on plaintiffs' property.



                                       FOR THE COURT:



                                       _______________________________________
                                       Associate Justice


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                                  Footnotes


FN1.  In addition to Dean Road and Fairbanks Road, the Town renewed its
  discontinuance of TH #15 because of concern as to whether the Town followed
  the correct process to discontinue TH #15 in 2001.

FN2.  There is support for the proposition that the federal court settlement
  agreement does not require dismissal in any event.  Paragraph 6 of the
  federal court settlement appears to contemplate further court orders in the
  pending state case.  In light of the prior state settlement that had
  explicitly contemplated landowners' moving for summary judgment, the
  federal court agreement could be interpreted as allowing for landowners'
  motion for summary judgment and not necessitating dismissal.

FN3.  Because res judicata bars only relitigation of claims between the same
  parties or parties in privity, In re St. Mary's Church Cell Tower, 2006 VT
  103, ¶ 3, __ Vt. __, 910 A.2d 925 (mem.), this would not preclude claims
  by neighboring landowners to a private right-of-way over former public
  roads to the extent such claims are available under 19 V.S.A. § 717(c)
  (Cum. Supp. 2006).

FN4.  A recent amendment to 19 V.S.A. § 717 implicitly acknowledges court
  authority to adjudicate the existence of roads.  2005, No. 178 (Adj.
  Sess.), § 4.  That section now provides for a "presumption of
  discontinuance" when a road has not been maintained by the municipality for
  thirty years.  19 V.S.A. § 717(b).  This presumption is rebuttable by
  evidence of the municipality's intent to continue the road as a public
  right-of-way.  Id.  A dispute as to the applicability of § 717(b) would
  apparently require court adjudication of whether the road is or is not
  presumptively discontinued, based on evidence of maintenance and intent.

FN5.  The conundrum of known unknown roads brings to mind one of former
  Secretary of Defense Donald Rumsfeld's famous existential musings: "As we
  know, there are known knowns. There are things we know we know.  We also
  know there are known unknowns.  That is to say we know there are some
  things we do not know. But there are also unknown unknowns, the ones we
  don't know we don't know."  D. Sevastopulo, Bush's Poet-in-Residence Rides
  Away to Find Montana, Financial Times, Nov. 11, 2006, at 3, available at
  2006 WLNR 19711333.  Unaddressed by Mr. Rumsfeld's remarks is a potential
  fourth category, unknown knowns: things we do not know that we know.


