Lalonde v. Renaud

                                ENTRY ORDER

                      SUPREME COURT DOCKET NO. 86-533

                              APRIL TERM, 1989


Jacques and Therese Lalonde,      }          APPEALED FROM:
Raymond and Therese Fichaud,      }
Vivian and Patrick Ferris,        }
J. W. Ruddy, J. A. Lead,          }
D. Dumont and Guy Seguin          }
                                  }          Grand Isle Superior Court
     v.                           }
                                  }
                                  }
Dennis S. Renaud and              }
Isabelle L. Renaud                }          DOCKET NO. S63-10-84Gc


             In the above entitled cause the Clerk will enter:

     Defendant-appellants move for reargument under V.R.A.P. 40 from a
decision rendered by this Court on December 29, 1989.  Because defendants'
motion fails to identify points of law or fact overlooked or misapprehended,
their motion is denied.  Plaintiff-appellees' move for correction.  Their
motion is granted.  The opinion has been withdrawn and references to lot ten
have been replaced with references to the area north of lot ten.

     Motion for reargument is denied; motion for correction is granted.



                                   BY THE COURT:


                          Frederic W. Allen, Chief Justice


                                   Louis P. Peck, Associate Justice


[ ]  Publish                       Ernest W. Gibson III, Associate Justice

[ ]  Do Not Publish
                                   John A. Dooley, Associate Justice


                                   Albert W. Barney, Chief Justice (Ret.),
                                   Specially Assigned


------------------------------------------------------------------------------




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, 111 State Street, Montpelier, Vermont 05602 of any errors in order
that corrections may be made before this opinion goes to press.



                                No. 86-533


Jacques and Therese Lalonde,                 Supreme Court
Raymond and Therese Fichaud,
Vivian and Patrick Ferris,                   On Appeal from
J. W. Ruddy, J. A. Lead,                     Grand Isle Superior Court
D. Dumont and Guy Seguin
                                             April Term, 1989
     v.

Dennis S. Renaud and
Isabelle L. Renaud



James L. Morse, J.

Michael Rose, St. Albans, for plaintiffs-appellees

David G. Miller, St. Albans, for defendants-appellants


PRESENT:  Allen, C.J., Peck, Gibson and Dooley, and Barney, C.J. (Ret.),
          Specially Assigned



     PECK, J.   Defendants appeal from a trial court judgment declaring
that a lot to which defendants claimed title was park area, as designated in
the developer's subdivision plans.  We affirm.
     All parties are owners of lots in the so-called Kirk and Fitts
development, which was created in 1957 and is adjacent to Lake Champlain in
Alburg.  Plaintiffs collectively own seven lots in the subdivision, but
only plaintiffs Jacques and Therese Lalonde purchased their property from
the developers, in 1966.  All of the plaintiffs' deeds refer to a map, which
the trial court found was recorded (FN1) and which depicted an area north of lot
10 of the subdivision as a park.  The deeds, however, did not expressly
refer to a park, nor did the declaration of restrictions in any of the deeds
expressly prohibit construction in the area designated as a park.  Neverthe-
less, there was no dispute that the area was used and maintained as a park
at least since 1966, and the trial court so found.
     Ownership of area north of lot 10 designated as park remained with the
developers until they sold it by quitclaim deed, along with other land, to
defendants' predecessors in title in 1977.  Defendants purchased the area in
1982, and in 1984 erected a fence between the beach and the grassy portion
of the park.  When they made it known that they intended to develop the
area, the present action ensued.
     The trial court concluded that the original lots were sold by reference
to a recorded plat indicating a park area and that the purchasers acquired
rights in the park.  In Clearwater Realty Co. v. Bouchard, 146 Vt. 359, 505 A.2d 1189 (1985) we held that where lots are sold with reference to a
recorded plat that indicates a park, "lot purchasers acquire the right to
keep open and use roads, streets, highways, and park areas as indicated on
the plat."  Id. at 363, 505 A.2d  at 1191.
     Defendants contend that the trial court erred in disallowing cross-
examination of plaintiff James Ruddy aimed at exploring Ruddy's reliance (or
lack of reliance) on the existence of the park in purchasing his lot in
1981.  The underlying substantive argument would have been that, absent
reliance on the plat denominating the park or reliance on the park itself,
plaintiffs were not injured by the subsequent development of the lot denom-
inated "park" in the subdivision plan.
     Defendants misapprehend the nature of the rights created in lot owners
who have purchased by reference to a park in a recorded plat.  The holding
in Clearwater sets forth an objective test, granting lot owners rights as a
result of purchasing "with reference to" a plat, without adding a require-
ment of specific reliance on depictions in the plat.  In Clearwater, we
clearly rejected holdings in some jurisdictions that "lot purchasers only
acquire an easement over streets or ways which touch their land or which are
necessary for the use and enjoyment of their property."  Id. at 363, 505 A.2d  at 1192 (emphasis added).  We chose instead what is sometimes called
the "broad" or "unity" rule (see generally Annotation, Conveyance with
Reference to Plat, 7 A.L.R.2d 607, 612 (1949)) that "lot owners acquire
rights in all roads, streets, parks, and other designated ways shown on the
plat map unless a contrary intent is affirmatively shown."  146 Vt. at 364,
505 A.2d  at 1192. (FN2)
     Clearwater  addressed rights of way, not parks, which might well be
considered distinguishable on the basis of a different degree of necessity
to the lot owner.  We had no occasion in Clearwater to consider a third line
of cases adopting the "intermediate" or "beneficial enjoyment" rule, under
which the extent of the private right is limited to streets, alleys, or
parks that are reasonably or materially beneficial to the grantee.  See,
e.g., Whitton v. Clark, 112 Conn. 28, 151 A. 305 (1930).  Even if we were to
apply the "reasonable benefit" rule in the present case, an inquiry into
whether a lot owner is benefited involves an objective test, not one that
depends on an owner's specific reliance on what was depicted on the plat
map.  Moreover, in the present case the findings below were ample to support
the conclusion that the park benefited plaintiffs.  The court stated:
            There is no doubt that the character of the neighbor-
          hood will be adversely affected should the park be no
          more.  What was there (beach and lawn) for all lot
          owners to use and enjoy will be no more and those lot
          owners across the road from the park will look out upon
          a cottage lot should Defendants prevail.

     Defendants' argument that each present owner of a lot must demonstrate
reliance on the map filed in 1957 would effectively limit the beneficiaries
of the protections contained in Clearwater to the original purchasers from a
developer since only these persons are likely to have relied directly on the
plat.  Subsequent purchasers would be unable to prove such reliance and
would lose the right to the park.  Such a position is clearly inconsistent
with our holding in Clearwater. (FN3) Additionally, it would, if adopted,
undermine the promises made by developers who seek to attract buyers to a
subdivision with dedications of common land.  Finally, it would create an
undue hardship to subsequent purchasers, whose benefits might depend on
proof that they had knowledge of and relied on plats filed at the com-
mencement of the development.  There is no reason why purchasers who
purchased their properties from someone other than the developer should not
enjoy all of their predecessors' rights and interests, unless "a contrary
intent is affirmatively shown."  Clearwater, 146 Vt. at 364, 505 A.2d  at
1192.  Since lack of reliance by plaintiffs on the plat or on the existence
of the park would not affect their rights, the court did not err in limiting
defendants' cross-examination of plaintiffs on the reliance issue.
     Defendants next argue that the trial court erred in allowing testimony
by a plaintiff as to the statement of one of the original subdividers
concerning the latter's intention that the area north of lot 10 remain a
park.  The testimony about the subdivider's statement of intention was
hearsay and should have been excluded, but its admission did not prejudice
defendants' case.  The plat recorded in 1957 clearly reflected the existence
of a park north of lot 10, and there is no dispute that subdivision lots
were sold with reference to that plat.  The trial court so found, and that
finding is not contested on appeal.  Defendants argue that the trial court
relied exclusively on the hearsay testimony of the subdivider, but the
decision itself does not agree with that characterization.  The court
stated:
          This case is very similar factually [to Clearwater].
          The Plaintiff's deeds referred to a recorded map.  Both
          the earlier and later recorded maps indicated that the
          lot here in dispute was a park.  Furthermore, the
          original developers, Kirk and Fitz, did not show any
          intent to the contrary.  It is reasonable to infer that
          the benefit of a common park on the lake induced
          Plaintiffs to buy their lots.  Therefore, the Plaintiffs
          have acquired the right to keep open the park area as
          indicated on the map.

Emphasis in the decision is properly on the plat and the contemporaneous
sales with reference to the plat, not on the testimony relating the views of
the developers.  The plaintiff's hearsay testimony was at most additive and
was harmless error.
     We have no occasion to consider the trial court's alternative
conclusion, that the park was dedicated in 1957.  It appears from the record
that the "park" is not public property, but rather a park in the sense of
land to be held for the benefit of the lot owners in common. (FN4) Hence, the
question of dedication is not essential to this decision.  Nor is it
necessary to reach plaintiffs' argument on cross-appeal that the trial
court should have found a prescriptive easement.
     Affirmed.


                                        FOR THE COURT:



                                        _________________________________
                                        Associate Justice





FN1.    Defendants argue that the map was not "formally" recorded, but do
not deny that two versions of the map are present in the Alburg land
records at a date contemporaneous with the initial conveyances, and were
present at the conveyance to the Lalondes.

FN2.    We are not suggesting that Clearwater absolutely bars a different
analysis in significantly different factual settings.  See, e.g., Tesson v.
Porter Co., 238 Pa. 504, 86 A. 278 (1913)("broad" view subject to exception
where municipality vacates).

FN3.    We concluded in Clearwater that "[d]efendants, as successors in
title to the original purchasers of lots 14 and 15, are therefore entitled
to use the disputed 25-foot right-of-way."  146 Vt. at 364, 505 A.2d  at 1192
(emphasis added). This holding clearly relates present rights to the
question of whether predecessors in title purchased with reference to a plat
map, without regard to whether present landowners can prove reliance on the
original plat depicting the street or park or on the existence of the park 
itself.

FN4.    The trial decision did not raise, and we do not consider, the
ancillary issues that may persist after this decision, such as
responsibility for property taxes and maintenance, as well as the scope of
allowable activities on lot 10.