Directors of Seasons on Mt. Snow Condo. Owners Assoc. v. Seasons Assoc.

Directors of Seasons on Mt. Snow Condo. Owners Assoc. v. Seasons Assoc.(96-272) 
166 Vt. 618; 693 A.2d 735

[Filed 4-Apr-1997]


                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 96-272

                              MARCH TERM, 1997


Directors of Seasons on Mount        }     APPEALED FROM:
Snow Owners Association acting       }
by and through Seasons on Mount      }
Snow Condominium Owners              } 
Association, Inc.                    }
                                     }
v.                                   }    Windham Superior Court
                                     }    
Seasons Associates, Seasons on       }
Mount Snow, Inc., David Epstein,     }
and Robert S. Epstein                }     DOCKET NO. S289-6-944Wrcv
    

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

       Defendants in this property dispute appeal from a summary judgment in
  favor of plaintiffs.  We reverse.

       In January 1985, defendants Seasons Associates and Seasons on Mount
  Snow, Inc. acquired a 27-acre parcel of land from the estate of Nellie Kull
  and began development of a 250-unit condominium project known as the
  Seasons on Mount Snow.  In June of 1988, defendants acquired a 10.12-acre
  parcel of land known as the Sundance property to construct an additional 82
  condominium units (Sundance Project).  The Sundance parcel adjoined the
  Nellie Kull parcel.  The original project Declaration contained a provision
  purporting to reserve a right-of-way over adjoining property owned or to be
  acquired by defendants.  In addition, quitclaim deeds were executed on
  behalf of the Condominium Owners Association purporting to convey an
  easement to use the Seasons Road for access to the Sundance property.  The
  sole means of egress from and ingress to the Sundance Project was the road
  that served the Seasons Project. 


       The Directors of the Seasons on Mount Snow Owners Association
  (plaintiffs) filed a declaratory judgment action in Windham Superior Court
  to determine whether defendants had a right to use the road for access to
  the Sundance Project.  The parties filed cross-motions for summary
  judgment.  The trial court granted judgment for plaintiffs, ruling that
  defendants could not create a "hybrid" easement over property to be
  acquired in the future, that such an easement would improperly add to the
  burden on the existing easement, and that the quitclaim deeds purportedly
  executed on behalf of the Owners Association did not comply with the
  provisions in the Seasons Project declaration and therefore were invalid.

       The fundamental issue is whether an easement may be reserved to apply
  to after-acquired property.  Section 10.6 of the Declaration in pertinent
  part provides:

              The Declarant [Seasons Associates], on
          behalf of and      for the benefit of itself and
          its successors and assigns, reserves a
          permanent easement over all roads, highways,
          private ways, streets, ski trails, and paths,
          whether now existing, designated as to be
          constructed in the future on any plans
          recorded herewith or shown on any plan or
          survey required for any board, agency,

 

          municipal or state approval of this
          condominium development, which it or its
          successors and assigns may use for access to
          adjoining premises now owned by it or which it
          may hereafter acquire.
          
       The character of an easement depends upon the intent of the parties,
  as drawn from the language of the deed, the circumstances existing at the
  time of execution, and the object and purpose to be accomplished by the
  easement.  Griffith v. Nielsen, 141 Vt. 423, 428, 449 A.2d 965, 968 (1982).  
  Defendants contend that the language of § 10.6 is sufficient to establish
  that an easement for a right-of-way was to be reserved over any adjoining
  property owned or to be acquired in the future.  

       The trial court ruled as a matter of law that an easement cannot be
  applied to property acquired in the future regardless of the language in
  the deed or the parties' intent to do so.(FN1)  In this regard, we believe the
  trial court was in error.  We first recognized the validity of an easement
  over property to be acquired in the future in Percival v. Williams, 82 Vt.
  531, 542-3, 74 A. 321, 324-5 (1909).  There we upheld an easement over
  property that the grantor did not own based upon testimony by the grantor
  that at the time he made the reservation he expected to become the owner of
  the benefitted farm.  Percival has been cited and relied upon by numerous
  other courts for the principle that an easement may, in appropriate
  circumstances, be applied to after-acquired property.  See, e.g.,
  Rosenbloom v. Grossman, 351 S.W.2d 735, 740 (Mo. 1961) ("`[W]e perceive no
  reason why as between the parties there may not be an agreement or contract
  to grant an easement appurtenant to property to be acquired in futuro. . .
  .'") (quoting Wells v. Northeast Coal Co., 72 S.W.2d 745, 747 (Ky. 1934));
  Kalinowski v. Jacobowski, 100 P. 852, 855 (Wash. 1909) ("as so far as we
  are able to ascertain, it has always been the law that where a servitude,
  such as a right of way, has been granted by an instrument in writing, the
  fact that the dominant tenement has not been acquired at the date of the
  instrument cannot, after it has been actually acquired, prevent the
  servitude from becoming a legal accessory to the dominant tenement,
  provided the servitude was so used as to give reasonable notice of the
  burden to any person in whom the property of the land might subsequently
  become vested.").

       Plaintiffs also contend that the language of § 10.6 is insufficiently
  precise to establish an easement benefitting the Sundance Parcel, and could
  be construed, if defendants prevailed, to expand the easement indefinitely
  over a number of parcels of subsequently acquired property.  The
  Declaration states, however, that the easement applies only to adjoining
  properties to the Nellie Kull parcel, a finite and precise category of
  property.  Furthermore, "the failure of an easement description to specify
  details . . . does not render the easement excessively vague or
  unenforceable."  Egidi v. Town of Libertyville, 578 N.E.2d 1300, 1308
  (Ill.App. Ct. 1991); see also  Bradley v. Arkansas Louisiana Gas Co., 659 S.W.2d 180, 181 (Ark. 1983) ("Since no specific location of the right of
  way was given, the grantee was free to locate it any place on the described
  property it chose, subject to accepted standards of reasonableness and
  convenience.").  Thus, we cannot say that the reservation is ineffective as
  a matter of law.

       Plaintiffs also rely on that portion of § 10.6 providing that the
  easement applied to all roads "whether now existing, designated as to be
  constructed in the future on any plans recorded 

 

  herewith or shown on any plan or survey required for any board, agency,
  municipal or state approval of this condominium development."  Plaintiffs
  contend that the "spur" road to the Sundance project was not "existing" at
  the time of the Declaration, was not designated to be constructed on any
  plan recorded with the Declaration, and was not shown on any plan required
  for approval of the condominium development.  Plaintiffs also assert that
  defendants represented to the Seasons unit owners that the easement was
  intended only to serve the Seasons project.  Defendants counter that
  plaintiffs' construction of § 10.6, limiting the easement to previously
  recorded plans, conflicts with the Declaration's express purpose of
  reserving an easement for "access to adjoining premises . . . which it may
  hereafter acquire."  (Emphasis added.)  They also assert that official
  plans related to "this condominium project" would include any plan showing
  an easement over the Seasons project; they note, in this regard, that plans
  for an Act 250 permit for the Sundance project show the road as an easement
  over the Seasons parcel. 
    
       The parties' disparate interpretations of § 10.6, and the conflicting
  evidence of its scope and purpose, are sufficient to demonstrate an
  ambiguity that cannot be resolved by this Court.  As noted, the precise
  character of an easement ultimately depends upon the "intentions of the
  parties,"  Griffith, 141 Vt. at 428, 449 A.2d  at 968, and "determining the
  parties' intent in making the agreement was a question of fact for the
  [trier of fact]."  Villa v. Heilmann, 162 Vt. 543, 549, 649 A.2d 768, 772
  (1994).  Therefore, because an easement may be reserved to apply to after-
  acquired property, and because material questions of fact exist concerning
  the precise scope of the easement asserted, we conclude that the summary
  judgment in this case must be reversed, and the matter remanded for further
  proceedings.

       Reversed and remanded.   
  



    BY THE COURT:



    
_______________________________________
Jeffrey L. Amestoy, Chief Justice

    
_______________________________________
Ernest W. Gibson III, Associate Justice

    
_______________________________________
John A. Dooley, Associate Justice

    
_______________________________________
James L. Morse, Associate Justice


    
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                                  Footnotes


FN1.  The trial court also ruled that the quitclaim deeds purporting
  to grant an easement on behalf of the Owners Association were invalid. 
  Defendants have not appealed from this portion of the judgment.