Kelly v. Town of Barnard

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. 88-268


Byron K. Kelly, Sr., Byron K.                Supreme Court
Kelly, Jr., and Jeffry C. Kelly
                                             On Appeal from
     v.                                      Windsor Superior Court

Town of Barnard, John Genco and              March Term, 1989
Ruth Genco


Alan W. Cheever, J.

Bourdon & Cullen, Woodstock, for plaintiffs-appellees

Rexford & Kilmartin, Newport, for defendants-appellants



PRESENT:  Allen, C.J., Peck, Gibson, Dooley and Morse, JJ.



     PECK, J.  Defendants, John and Ruth Genco, appeal a superior court
order granting summary judgment in favor of plaintiffs who claim that a road
crossing defendants' property is a public road.  We affirm.
     On appeal, defendants, the Gencos, raise a host of challenges.  The two
primary claims are (1) that the trial court erred in granting summary
judgment because genuine issues of material fact existed and because the
legal theory applied by the court was erroneous, and (2) that not all
necessary parties were joined. (FN1)
     Plaintiffs, the Kellys, own property in the Town of Barnard.  They
claim that sole access to the property is by the Wheat Road, continuing as
the Park Hill Road which crosses defendants' land.  After the plaintiffs
purchased the property, defendants told them that any use of the roads would
constitute trespass, as the roads had been discontinued.  Plaintiffs'
initial requests to the Town to upgrade the roads or to allow them to
repair the roads were denied, and this action was commenced in 1985.
     Plaintiffs sought judgment declaring that Wheat Road and Park Hill
Road are public roads which the Town has a duty to maintain and enjoining
the Gencos from interfering with plaintiffs' use of the roads.  The Town of
Barnard and the Gencos were named as defendants.  The central issue was
whether Wheat Road and Park Hill Road were properly laid out and opened in
1816 and 1788.
     Plaintiffs and the Town sought summary judgment and both motions were
initially denied; however, following plaintiffs' motion to reconsider, the
trial court granted summary judgment in favor of plaintiffs, ruling that
Wheat Road is a class 4 public highway and that plaintiffs and the public
are entitled to use the road.  An amended complaint added Park Hill Road,
and the trial court granted a further motion for supplemental summary
judgment, declaring that road a public highway.  Plaintiffs and the Town
supplemented both motions with affidavits and memoranda.  The Gencos
submitted no materials in response.  Thereafter, the plaintiffs and the Town
reached an agreement dismissing the action pertaining to the Town, and
acknowledging the continuing force and effect of the two summary judgment
orders declaring Wheat Road and Park Hill Road public highways.  After a
teleconference hearing, the trial court made final disposition of the case
by ordering that the prior summary judgment orders should be of "continuing
force and effect," that all pending equitable claims were withdrawn without
prejudice to the plaintiffs, and that all pending claims for damages were
dismissed with prejudice.  The Gencos filed a motion to alter, amend and
strike orders and judgment orders.  The trial court denied the motion.  This
appeal followed.
                                   I.
     When reviewing a motion for summary judgment, we apply the same
standard the trial court used in ruling on the motion.  Morrisville Lumber
Co. v. Okcuoglu, 148 Vt. 180, 182-83, 531 A.2d 887, 888-89 (1987).  To pre-
vail, the moving party must satisfy a two-part test.  They must establish
that no genuine issues of material fact exist, and that the motion rests on
a valid legal theory that entitles them to judgment as a matter of law.
V.R.C.P. 56(c).  Both in the trial court and on appeal, the moving party
bears the burden of proof.  Price v. Leland, 149 Vt. 518, 521, 546 A.2d 793,
796 (1988).
     At the outset, we note that the Gencos provided the trial court with
no evidence to counter the plaintiffs' affidavits in support of summary
judgment.  Plaintiffs filed two motions for summary judgment, both supported
by affidavits and legal memoranda.  Neither motion was opposed by the
Gencos.  "Nothing in our case law or the language of Rule 56" requires an
adverse party to file an affidavit in opposition to a summary judgment
motion.  Bingham v. Tenney, ___ Vt. ___, ___, 573 A.2d 1185, 1187 (1990).
However,

          [w]hen a motion for summary judgment is made and sup-
          ported as provided in [Rule 56], an adverse party may
          not rest upon the mere allegations or denials of the
          adverse party's pleading, but the adverse party's
          response, by affidavits or as otherwise provided in this
          rule, must set forth specific facts showing that there
          is a genuine issue for trial.  If the adverse party does
          not so respond, summary judgment, if appropriate, shall
          be entered against the adverse party.

V.R.C.P. 56(e); see Gore v. Green Mountain Lakes, Inc., 140 Vt. 262, 266,
438 A.2d 373, 375 (1981).
                                    A.
     Defendants' first claim of error is that there existed a genuine issue
as to the existence of Wheat Road and Park Hill Road and the location of the
roads.  They also argue that whether Wheat Road and Park Hill Road are pub-
lic highways is a mixed question of law and fact and that the court engaged
in fact finding when it decided the status of the roads.  Therefore, they
conclude, summary judgment was inappropriate.  We disagree.
     In both cases, the only issue which the court decided when it granted
summary judgment was whether the road in question was a public highway.  The
court based its decisions on the following facts: (1) Wheat Road and Park
Hill Road exist, and have existed since the early 19th century, and (2)
Wheat Road was surveyed in 1816 and recorded in 1817, and Park Hill Road was
surveyed and recorded in 1788.
     At the time the court granted the motions for summary judgment it had
before it the following materials:
          1. affidavits from John Dutton, a surveyor who had con-
          ducted extensive boundary and highway research in the
          Town of Barnard, stating that he had examined the
          Barnard Land Records and the area of the disputed roads
          in 1985 and had uncovered (a) a survey of the Wheat Road
          dated September 17, 1816 and recorded in the Barnard
          Land Roads and Villages Book at Page 39 on January 1,
          1817, and (b) a survey of the Park Hill Road dated
          September 9, 1788 and recorded in the Barnard Land Roads
          and Villages Book at page 5;

          2. affidavits from Frank B. Lamson, a registered land
          surveyor in the State of Vermont, stating that (a) in
          1985, he supervised a survey of the "so-called Wheat
          Road's" present centerline and the "so-called Park Hill
          Road's" present centerline; and (b) in the process of
          conducting the 1985 survey, he found (i) clear evidence
          of Wheat Road's and Park Hill Road's continued existence
          and (ii) that the centerline of the current roadbeds
          closely followed, for the most part, the path of the
                    same laid out in 1816; (FN2)

          3. a certified copy of the September 17, 1816 survey of
          Wheat Road signed by the Barnard Selectmen and a
          certified copy of the September 9, 1788 survey of Park
          Hill Road also signed by the Barnard Selectmen.

          4. a copy of the 1985 survey of the Wheat Road and the
          Park Hill Road conducted by Mr. Lamson.

     These materials were evidence of the facts relied on by the court in
making its decision.  The only challenge to the determining facts consisted
of a general denial by the Gencos of the following clause in the plaintiffs'
complaint:
          Plaintiffs' only access by road to [their] premises is
          over the "Wheat Road" or "Old Town Road," so called,
          (hereinafter referred to as the Wheat Road) to the Park
          Hill Road, so called.  The Wheat Road, which lies solely
          within the Town of Barnard, also adjoins lands of
          Defendants John and Ruth Genco and connects with another
          old town highway.  The Wheat Road was laid out and
          approved as a town highway in 1816.  A survey of the
          Wheat Road, dated September 7, 1816 and signed by the
          Selectmen of the Town of Barnard, was recorded on
          January 1, 1817 at Page 39 of the Barnard Highway
          Records.

Because the plaintiffs submitted credible affidavits and documentary evi-
dence in support of the determining facts, defendants could "not rest upon
the mere allegations or denials of the adverse party's pleading," but were
required to respond "by affidavits or as otherwise provided in [Rule 56] ...
set[ting] forth specific facts showing that there [was] a genuine issue for
trial."  V.R.C.P. 56(e); see Gore, 140 Vt. at 266, 438 A.2d  at 375.
                                    B.
      In order to prevail on their motion for summary judgment the
plaintiffs must show that the motion rests on a valid theory of law.  The
defendants argue that the court applied an incorrect legal theory in
deciding that Wheat Road and Park Hill Road are class four public roads.  We
disagree.
     In 1816 and 1817 the procedure for the establishment of a public
highway was as follows:
          [E]very highway or road which shall in future be laid
          out or opened, shall be actually surveyed, and a survey
          thereof made out, entered and recorded, in the town
          clerk's office, where such highway or road lies, (and
          for want thereof, in the proprietors' clerk's office)
          ascertaining the breadth, course and distance of such
          road.

1 Laws of Vermont, Ch. XLV, {1, at 446 (1808).  In 1820 the following step
was added to the procedure:
          [W]hen the selectmen of any town shall open any road,
          heretofore, or hereafter, laid out, they shall cause a
          certificate thereof, signed by them, or a major part of
          them, to be forthwith recorded in the town clerk's
          office, in such town; and the day on which such certifi-
          cate is recorded, shall be taken and deemed to be the
          time of opening such road.

1820, ch. 6, { 2, at 22 (current version at 19 V.S.A. { 715).  The court
interpreted the "heretofore or hereafter" language to apply to "laid out".
Thus, the 1820 additional step of certification for valid opening applies
only to roads which were laid out but not opened before the change was
enacted and to roads laid out after the passage of the provision.  We agree
with the court's interpretation.
     This interpretation, however, does not end the matter.  As the
defendants point out, although there is evidence that Wheat Road and Park
Hill Road were surveyed and laid out before 1820 there is no evidence
establishing when the roads were opened.  Thus, it is possible that although
Wheat Road and Park Hill Road were laid out before 1820 they were not opened
until after 1820.  If that were the case, certification would have been
required for the proper establishment of the roads as public highways.
There is no evidence that either Wheat Road or Park Hill Road was ever
certified.
     At this juncture, the date of the opening of the contested roads is
difficult to ascertain.  However, evidence that the roads were opened early
in the 19th century is found in Frank Lamson's affidavits which stated that
in the process of conducting the 1985 survey of Wheat Road and Park  Hill
Road, he found "clear evidence" of the "continued existence" of the roads
and that "[t]he centerline of the current roadbed[s] closely followed, for
the most part, the path of the same as laid out in 1816."  In Bacon v.
Boston & Maine R.R., 83 Vt. 421, 434, 76 A. 128, 134 (1910), we stated that
"[w]here the regularity of an official act is dependent upon some coexisting
or preexisting act or fact there is a presumption in favor of the doing of
such act or the existence of such fact."  Here, since openings subsequent
to 1820 required certification, the opening of Wheat Road and Park Hill Road
was regular only if it was accomplished prior to 1820.  Opening prior to
1820 is thus a coexisting or preexisting fact upon which the regularity of
the opening is dependent.  Therefore, the court was correct in presuming
that the roads were opened prior to 1820 absent evidence to the contrary. (FN3)
Since there is an uncontested presumption that Wheat Road and Park Hill
Road were opened prior to 1820, and since the roads were surveyed and the
surveys were recorded, the court was correct in concluding that public
highways were properly established.
                                    II.
     Defendants argue that the court lacked jurisdiction to rule on
plaintiffs' claim for declaratory judgment because not all necessary parties
were joined.  The Declaratory Judgments Act provides that
          [w]hen declaratory relief is sought, all persons shall
          be made parties who have or claim any interest which
          would be affected by the declaration, and no declaration
          shall prejudice the rights of persons not parties to the
          proceeding.

12 V.S.A. { 4721. (FN4)
     Although the Gencos raised the issue of joinder as a defense, they have
not mentioned specifically a single additional party whose interest is
affected by the decision in this case.  Indeed, when suggesting to the
Kellys that the status of the contested roads should be determined in
court, the Gencos advised the Kellys to "commence an action in the Windsor
Superior Court against the Town of Barnard and the Gencos."   In their
answer to the complaint, defendants simply stated that the plaintiffs did
not join all the interested parties.  In their motion to alter, amend and
strike orders and judgment orders, defendants alleged that "[t]here are five
known property owners whose interest in land is affected by the two court
Orders of July 3, 1986 and April 30, 1987 who were not made parties," but
did not explain who these five property owners are or how their interest in
land is affected.  There is no evidence in the record that Wheat Road and
Park Hill Road run through land other than that belonging either to the
Gencos or to the Kellys.  "An affected, interested person must be cited in a
declaratory judgment action when his existence and claim are evident."
Blanchard v. Naquin, 428 So. 2d 926, 928 (La. Ct. App. 1983) (emphasis
added).  However, in the absence of any specific fact in the record indi-
cating that there are other persons whose interests will be affected by the
trial court's order we will not reverse the judgment of that court. (FN5) See
Trammel v. Glens Falls Indemnity Co., 259 Ala. 430, 436-37, 66 So. 2d 537,
542-544 (1953) (per curiam) (a declaratory judgment was valid despite the
possible existence of two children whose interest would have been affected
by it in the absence of any indication in the record that such children did
exist).  If any such person exists, he or she will not be bound by the
judgment.  See 12 V.S.A. { 4721; Bills v. Wardsboro School District, 150 Vt.
541, 545-46, 554 A.2d 673, 676 (1988). (FN6)
                                   III.
     Defendants raise a variety of further challenges to the summary
judgment orders, all of which are without merit.
     Defendants take issue with the court's pretrial order stating that (1)
no private easement claims existed, (2) plaintiffs were to file a motion
for summary judgement within thirty days and (3) defendants' motion to dis-
miss was denied.  They state that the court ordered plaintiffs to move for
summary judgement improperly since Rule 56 is permissive.  We do not
interpret the pretrial order as requiring the plaintiffs to file a motion
for summary judgment.  Either party was free to file such a motion "at any
time after the expiration of 20 days from the commencement of the action."
V.R.C.P. 56(a). (FN7)
     Defendants allege that plaintiffs' motion for summary judgment did not
demand "judgment for the relief to which he deems himself entitled," and
that the motion was fatally deficient because it did not state against which
of the defendants summary judgment was sought.  The memorandum in support of
the motion for summary judgment makes it clear that plaintiffs sought a
declaration that Wheat Road is a public highway.  The motion itself clearly
identified the Town of Barnard, John Genco and Ruth Genco as the defendants.
     Defendants argue that the docket entries do not reflect the receipt of
the 1985 survey of Wheat Road and Park Hill Road, the 1816 survey of Wheat
Road, and the 1788 survey of Park Hill Road.  However, the documents were
contained in the file of the case, and the defendants themselves admit that
they received a copy of the 1985 survey.
     Defendants complain of the court's reconsideration of the plaintiffs'
motion for summary judgment without notice to the parties.  In Vermont,
"[b]efore the court can grant summary judgment, it must give the opposing
party a reasonable opportunity to show the existence of a fact question."
Campbell v. Dupont, 138 Vt. 448, 450, 417 A.2d 929, 930 (1980).  Opposing
parties must be given "notice of the motion" and "opportunity to demonstrate
the existence of a fact question."  Id.  The Kellys filed a motion to recon-
sider the denial of their motion for summary judgment on May 30, 1986.
Summary judgment in their favor was entered July 3, 1986.  The Gencos do
not contend that they did not receive a copy of the Kellys' motion to
reconsider.  They had over a month to "show the existence of a fact
question."
     Defendants state that granting summary judgment after a denial of a
previous similar motion is inappropriate in the absence of new facts.
However,
          [u]ntil final decree the court always retains juris-
          diction to modify or rescind a prior interlocutory
          order.  Although the court might properly refuse to
          consider a second motion, we will not require a judge to
          perpetuate error or take a more roundabout way to
          arrive at ultimately necessary judgment by refusing him
          the right to entertain a second motion for summary
          judgment after he has ruled once the other way.

Lindsey v. Dayton-Hudson Corp., 592 F.2d 1118, 1121 (10th Cir. 1979)
(citation omitted); see United States v. Desert Gold Mining Co., 433 F.2d 713, 715 (9th Cir. 1970).
     Defendants further object to the form of the orders disposing of the
case.  They do not, however, allege that the orders are invalid, nor do they
cite any case law to that effect.  In particular, the Gencos claim that the
order declaring Wheat Road a public highway does not identify Wheat Road,
does not locate it in the Town of Barnard and does not relate Wheat Road to
the lands of Kelly or Genco or other unidentified adjoiners and abutters.
They claim that the order declaring Park Hill Road a public highway is
"subject to the same objections" but is also deficient because it does not
give the Kellys or the general public the right to travel the road.
     The order pertaining to Wheat Road is the final paragraph of a trial
court opinion which clearly identifies Wheat Road and locates it in the
Town of Barnard.  Since the court's decision that the road is a public
highway is not affected by the particular lands through which the road runs,
it is irrelevant that the order did not identify those lands.  The order
declaring Park Hill Road a public highway clearly locates the road in the
Town of Barnard.  There is no need for the order to include a provision
stating that the Kellys and or anyone else can travel on the road since such
a conclusion follows from the determination that the road is a public high-
way. (FN8) The court entered a final judgment making the orders declaring the
roads public highways of continuing force and effect.  The record clearly
shows which roads are the subject of the court's disposition.
     Affirmed.



                                        FOR THE COURT:



                                        ________________________________
                                        Associate Justice





FN1.    Defendants also seek oral argument before this Court.  Because the
request was untimely, and because the Court considers the briefs adequate to
determine the merits, permission to present oral argument is denied.

FN2.      The defendants fire a battery of frivolous challenges at the
 affidavits of Lamson and Dutton.  Suffice it to say that the affidavits show
 that the affiants were qualified to testify as to the facts the court used
 the affidavits to establish.  Dutton, an experienced surveyor, testified as
 to the results of research he personally conducted.  Lamson, a registered
 land surveyor, testified as to the results of a survey he personally
 supervised.  The affidavits were duly sworn and notarized.  Defects in
 other information contained in the affidavits are irrelevant since that
 information was not relied on by the court in its decision.  See Deary v.
 Evans, 570 F. Supp. 189, 193 n.6 (D.C.V.I. 1983) (where an affidavit con-
 tained certain objectionable statements, the court struck those statements
 but considered the remainder of the affidavit); Chambers v. McLean Trucking
 Co., 550 F. Supp. 1335, 1338 (M.D.N.C. 1981) ("In deciding the motions for
 summary judgment, the Court will only consider statements which these
 affiants have made based on their knowledge gained through their positions.
 It will not strike those affidavits in their entirety merely because they
 contain a few statements as to the affiants' understandings rather than
 knowledge.")  Furthermore, it is not evidence of bad faith or lack of
 competence that the affiants modified their testimony to reflect the fact
 that a road originally believed to be just the Wheat Road was subsequently
 discovered to include portions of the Park Hill Road.  Finally, we note
 that it is well established that "[a]bsent a motion to strike or other
 timely objection, the trial court may consider a document which fails to
 conform to the formal requirements of Rule 56(e)."  Williams v. Evangelical
 Retirement Homes, 594 F.2d 701, 703 (8th Cir. 1979) (per curiam) (emphasis
 added).  The first time defendants made any reference to the alleged
 deficiencies in the affidavits was in their motion to strike orders filed
 after both summary judgment motions were granted, after a teleconference
 hearing during which the final disposition of the case was discussed, and
 after final judgment was entered.  This does not constitute a timely
 objection.

FN3.    Defendants argue that in Bacon the Court declined to apply the
presumption of regularity of official acts on facts similar to the facts in
this case.  However, in Bacon the Court stated that the presumption could
not be used to show that a certificate was filed where no certificate was
found.  Here, it is not alleged that a certificate was filed.  Rather, the
presumption is applied to show that the failure to file was regular since no
certificate was required.

FN4.     Defendants also claim that 19 V.S.A. { 709 required notice to
"persons owning or interested in lands through which the highway may pass
or abut."  19 V.S.A. { 709 relates to 19 V.S.A. { 708, a provision for the
"la[ying] out, alter[ing], reclassif[ying] or discontinu[ing]" of a high-
way.  Plaintiffs here are merely seeking recognition that a public highway
exists; therefore, { 708, and consequently { 709, do not apply.

FN5.      Our reasoning here is not affected by the fact that the case was
decided at summary judgment.  "Where the record taken as a whole could not
lead a rational trier of fact to find for the non-moving party, there is no
'genuine issue for trial.'" Matsushita Electric Industrial Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986).  There is nothing in the record which
supports the Gencos' bald assertion that additional interested parties exist.

FN6.      The Gencos complain that "Genco and other so-called unidentified
abutters or adjoiners to 'any highway' in question appeared to be irrelevant
as parties."  Since the Gencos, who were the identified abutters and
adjoiners to the highways in question, were made defendants in the action
this reproach is disingenuous.  Neither the court nor the plaintiffs are
responsible for the Gencos' failure to participate actively in the action
after answering the complaint and moving to dismiss.

FN7.      There is no merit in defendants' assertion that the court, in
"ordering" the Kellys to file a motion for summary judgment, decided to
resolve on the basis of affidavits two material issues of fact -- whether
"Wheat Road was a public highway and its location in relationship to Genco,
Kelly, et al."  The court never made any decisions as to the location of
Wheat Road in relation to Genco, Kelly, or others, since such a decision was
immaterial to the only issue which the court did decide -- the status of
Wheat Road and Park Hill Road.  That decision was a mixed question of law
and fact; however, since the determative facts were uncontested, summary
judgment was appropriate.

FN8.      The fact that the summary judgment order did not contain findings
of fact does not affect its validity.  See Crosby v. The Great A & P Tea
Co., 143 Vt. 537, 539, 468 A.2d 567, 569 (1983).