Town of Newfane v. Walker

TOWN_OF_NEWFANE_V_WALKER.92-236; 161 Vt. 222; 637 A.2d 1074

[Filed 17-Dec-1993]

 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
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                                 No. 92-236


 Town of Newfane                              Supreme Court

                                              On Appeal from
      v.                                      Windham Superior Court

 John H. and Linda A. Walker                  May Term, 1993
 and Joseph L. and Dorothy Druke


 Richard W. Norton, J.

 J. Garvan Murtha and Richard C. Carroll of Kristensen, Cummings, Murtha &
     Stewart, P.C., Brattleboro, for plaintiff-appellee

 Joseph J. O'Dea, Manchester, for defendants-appellants


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



      MORSE,  J.   Defendant landowners appeal from a superior court order
 permanently enjoining them from interfering with the public's use of the so-
 called Williamsville dam and swimming hole area and declaring that plaintiff
 Town owns the property in fee.  We affirm in part and reverse in part.
      This is one in a series of cases, and the second to be decided by this
 Court, involving the public's right of access to and use of the
 Williamsville swimming hole.  In Druke v. Town of Newfane, 137 Vt. 571, 409 A.2d 994 (1979), the Drukes sought to limit public access across their land
 to the swimming hole.  We upheld the superior court's finding that the access
 road had been dedicated to the public.  Id. at 577, 409 A.2d  at 996.

 

      In 1987, a storm breached the dam, and the swimming hole, which was
 basically a pond created by water backed up behind the dam, disappeared,
 leaving a bed of gravel.  Believing that the dedication found in Druke was an
 easement that was extinguished when the pond ceased to exist, landowners
 renewed their efforts to limit public access to the area by posting no
 trespassing signs and opposing efforts to repair the dam.  The superior court
 enjoined them from doing so, declaring that the entire length of the stream-
 bed forming the southern border of landowners' property, not just the right
 of access to the stream, had been dedicated to the public to the high water
 mark and that the Town of Newfane held the property in fee simple.  Land-
 owners appeal these determinations and additionally contest the court's
 interpretation of their deeds, setting the boundary of their property at the
 northern high water mark of the stream.
      Since at least 1786, a gristmill has existed on the property now owned
 by defendants Walker.  In 1839, the mill was rebuilt and operated by William
 H. Williams.  By 1898, the entire gristmill property, including land both
 north of the stream, now owned by landowners, and south of the stream, now
 owned by the Town, was owned by John W. and Fanny C. Williams.  During the
 Williams' ownership, the general public enjoyed full use of the dam area,
 including the right to swim, fish, picnic, draw water for farm animals, cut
 and remove ice, and gather gravel from the stream bed.
        In 1943, John Williams sold the mill buildings and surrounding lands
 north of the stream to Michael Fitzmorris.  The deed described the property
 conveyed as
           Being the Williams Mill property, so-called, on Grist
           Mill Road consisting of the old gristmill and buildings
           pertaining thereto . . . but reserving from this
           conveyance the dam and water power rights formerly

 

           pertaining to said mill and a right of access thereto
           across premises herein conveyed for the grantors, their
           heirs and assigns and the public generally.
 By 1968, Fitzmorris had conveyed the gristmill property to Walter Zuk, the
 Walkers' predecessor-in-interest, and to defendants Druke.  In 1975, Cheney
 Williams, John's son and heir, conveyed by quitclaim deed the land reserved
 to him, including the dam, water power rights, and a right of access, to the
 Town of Newfane.  By the same deed, he also conveyed three parcels on the
 other side of the stream to the Town.
      The trial court held, under a theory of dedication and by deed, that
 the Town owned title in fee simple to the dam area.  We agree that the facts
 found by the court are sufficient to establish a dedication, but disagree
 about the nature and scope of what was dedicated.  We hold that the Town
 received by dedication, and continues to hold, an easement over the dam
 property, which was not extinguished when the dam was breached.
      The court's conclusion that the dam and swimming hole property had
 already been dedicated to the public by 1943 is supported by its findings
 and the record.  Both the facts and the analysis here parallel those of
 Druke.  "Dedication is the setting apart of land for public use, either
 expressly or by implication of law.  It may be shown by the owner's
 writings, affirmative acts, acquiescence in public use, or some combination
 thereof, so long as the owner's intent to dedicate clearly appears."  137
 Vt. at 574, 409 A.2d  at 995.  The court found that, at least since 1912, the
 public had actively and continuously made use of the waters both above and
 below the dam for a variety of activities, including fishing, swimming,
 skating, ice cutting, washing vehicles, sunbathing, and picnicking.  John
 Williams, during the long period he owned the property, did nothing to

 

 discourage and much to encourage the public's enjoyment of it.  He continued
 to repair the dam even after the mill ceased to function and the dam was no
 longer necessary to generate power.  Here, as in Druke, the public's use of
 the land for more than forty years "for the purpose for which it was dedi-
 cated is in law equivalent to an acceptance" and completed the dedication.
 Id. at 576, 409 A.2d  at 996.
      Finally, here, as in Druke, the language in Williams's deed to
 Fitzmorris, reserving the "dam and water power rights" for "the public
 generally," is further evidence of his intention to dedicate the swimming
 hole property.  Id. at 575, 409 A.2d  at 995.  The dedication predated the
 deed.  The deed did not create an interest in the public; it recognized a
 pre-existing interest in the public created by dedication.  Id. at 576, 409 A.2d  at 996.
      Questions remain about the nature of the dedication, that is, what
 interest it conveyed to the public.  Although we agree with the trial court
 that the swimming hole property and dam area have been dedicated, we do not
 agree that the dedication was a fee.  A common-law dedication, unlike a more
 formal statutory dedication, does not pass fee simple; rather, it passes an
 easement to use the property in a manner consistent with the dedication.
 See, e.g., Chester v. Gilchrist, 497 A.2d 820, 821 (Md. 1985), rev'd on
 other grounds, 514 A.2d 483 (1986); Town of Reydon v. Anderson, 649 P.2d 541, 543 (Okla. 1982); Boyd v. Hyatt, 364 S.E. 478, 482 (S.C. Ct. App.
 1988); see also County of Bennington v. Town of Manchester, 87 Vt. 555, 557,
 560, 90 A. 502, 503, 504 (1914) (affirming that town dedicated courthouse to
 county but defining dedication as an easement only and holding that town
 retained fee interest in courthouse property).  The theory underlying

 

 dedication is that owner-permitted use of private property by the public
 creates an "estoppel in pais," see Druke, 137 Vt. at 576, 409 A.2d  at 996,
 that is, an expectation of continued use that estops the owner from
 preventing it.  Use, not ownership, is the crux of dedication.
      The dedication here was an easement, but the scope of the dedication,
 not the nature of the property interest it conveys, determines how the
 public may use the property.  Jacobs v. Lynn Township, 502 N.W.2d 382, 384
 (Mich. Ct. App. 1989).  Although the chain of deeds from John Williams to
 Cheney Williams to the Town of Newfane reserved only the dam and water power
 rights, that is not the scope of the public's easement.  The public's
 interest was never in the power the dam created and only incidentally in
 taking water from the stream.  What the easement allows is public entry for
 the full range of uses -- primarily recreational, but some utilitarian --
 for which the property was dedicated.  It can reasonably be inferred that it
 was John Williams's intent to dedicate to the public the same rights to
 access and use that it had enjoyed over the previous forty years.
      In his 1943 deed to Fitzmorris, John Williams sold off the gristmill
 property but reserved a private easement to the dam and water power for
 himself and his heirs as well as the public.  He continued to use that
 easement to maintain the dam, with the help of members of the public, long
 after the gristmill ceased to function and even after he no longer owned the
 gristmill property, so that the public's recreational use of the property
 could continue.  The easement thus clearly included the right to maintain
 the dam.  The Williams family continued to share the easement with the
 public until Cheney Williams, John's heir, quitclaimed the easement, along
 with three parcels of land on the opposite side of the stream, to the Town

 

 of Newfane.  The Town now possesses the easement, and with it, the right to
 maintain the dam.
      Relying on Trudeau v. Field, 69 Vt. 446, 38 A. 162 (1897), Percival v.
 Williams, 82 Vt. 531, 74 A. 321 (1909), and Inhabitants of Town of Sabattus
 v. Bilodeau, 391 A.2d 357 (Me. 1978), landowners argue that the Town's
 interest was an easement in a structure only, not in the underlying land,
 and that interest was extinguished by the destruction of the dam.  These
 cases are distinguishable.  In Trudeau, the Court held that an easement for
 water rights to a dam did not imply that the owners of dam had agreed to
 rebuild it when it was swept away in a flood.  69 Vt. at 452-53, 38 A.  at
 164.  Here, the Town wishes to reconstruct the dam, not to force the
 landowners to do so.
      In Percival, the Court held that the reservation in a deed, allowing
 the grantor to construct and maintain a water wheel "in the mill buildings
 on the premises" and to pump water to a certain place, did not survive the
 destruction of the mill.  82 Vt. at 544, 74 A.  at 325-26.  More broadly, in
 Sabattus, the court allowed a landowner to demolish a dam on his property,
 despite the town's easement to draw water for its fire protection system,
 after the town's construction of a new reservoir rendered the need for the
 dam obsolete.  The Court held that the town's easement was an easement in
 gross, that is, in the structure and not in the underlying land, and
 therefore an inadvertent or even intentional destruction of the structure
 extinguished the easement.  391 A.2d  at 359-60.
      Here, the easement is not limited to the dam and water rights reserved
 by John Williams in the 1943 deed.  Rather, the public has an easement by
 dedication, not only to use water power but to pursue a wide variety of

 

 activities in the area of the stream.  It is an easement not only in the
 structure but also in the surrounding land.  Although the loss of the dam
 restricts those activities, water and gravel may still be taken and some
 recreational uses remain.  John Williams himself repaired previous breaches
 in the dam; the intent of the dedication survives a breach of the dam.
      Moreover, none of landowners' cases involves a dedication.  A dedica-
 tion can be extinguished only if the public abandons it.  7 Powell, Law of
 Real Property { 926[3], at 84-107 (1992).  Abandonment must be shown by a
 failure to use the property and an intent to abandon.  Marksbury v. State,
 322 N.W.2d 281, 287 (Iowa 1982).  Nothing in the record suggests an abandon-
 ment has taken place here.  Rather, the evidence shows that the public con-
 tinues to use the dedicated area even in its current state and that the
 Town, on the public's behalf, seeks to continue the dedication by restoring
 the dam.
      Finally, landowners contend that the court erred in finding that the
 boundary of their property was located at the high water mark of the
 stream's north bank, thereby depriving them of any part of the stream bed.
 The court construed the chain of deeds (Williams to Fitzmorris to land-
 owners) in this manner because they all described the boundaries of land-
 owners' properties as going "along" or "to" the stream.  Conveyances of land
 adjoining privately owned stream beds, however, are generally construed as a
 matter of law as going not to the high water mark but to the thread of the
 stream.  Waters and Water Rights { 6.03(a)(4), at 178 (R. Beck ed. 1991);
 see Nilsson v. Latimer, 664 S.W.2d 447, 449 (Ark. 1984)(longstanding prop-
 erty rule that absent an express reservation by grantor, a conveyance of
 riparian property conveys title to thread of stream unless contrary

 

 intention appears; description that land is bounded "along" or "to" bank is
 not sufficient to establish an express reservation); Sheldon v. Sevigny, 272 A.2d 134, 137 (N.H. 1970) (fact that deed runs by the bank of a stream does
 not limit conveyance to the bank in absence of clear expression of intent to
 so limit grant).  The trial court found nothing beyond the deed descriptions
 that would support a boundary at the high water mark.
      The ruling that the swimming hole property and dam area have been
 dedicated to public use is affirmed; the ruling that defendants, boundaries
 are at the high water mark of the stream is reversed.


                                         FOR THE COURT:



                                         ______________________________
                                         Associate Justice