Chittenden v. Waterbury Ctr. Comm. Church

Chittenden v. Waterbury Ctr. Comm. Church  (97-235); 168 Vt. 478; 726 A.2d 20

[Filed 11-Dec-1998]


       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.


                                 No. 97-235


Eric Chittenden, et al.                         Supreme Court

                                                On Appeal from
     v.                                         Washington Superior Court

Waterbury Center Community Church, Inc.,        June Term, 1998
et al.

David A. Jenkins, J.

       Matthew C. Colburn, Law Office of Richard A. Unger, Montpelier, for
  Plaintiffs-Appellants.

       Gene Ann Condon and Albert G. Besser (Of Counsel), Stowe, for
  Defendants-Appellees.

       Thomas E. McCormick and Thomas P. Simon of McCormick, Fitzpatrick,
  Kasper & Burchard, P.C., Burlington, and Von G. Keetch and Randy Austin of
  Kirton & McConkie, Salt Lake City, Utah, for Amici Curiae Church of Jesus
  Christ of Latter-Day Saints, et al.


PRESENT:  Dooley, Morse, Johnson and Skoglund, JJ., and Katz, Supr.
          J., Specially Assigned


       DOOLEY, J.   This case concerns a driveway that separates the Cold
  Hollow Cider Mill in Waterbury Center, one of the state's  busiest tourist
  attractions, from a neighboring church. Plaintiffs and counterclaim
  defendants Eric and Francine Chittenden are the owners of the cider mill
  business and the real property it occupies. They appeal from a judgment
  entered in the Washington Superior Court concluding that the driveway in
  question is the property of defendant and counterclaim plaintiff Waterbury
  Center Community Church, Inc., free of any claim by plaintiffs.  The heart
  of plaintiffs' case is  that they are entitled to a prescriptive easement
  over the driveway. On appeal, plaintiffs contend that (1) 12 V.S.A. § 462,
  which effectively protects property belonging to religious institutions and
  certain other entities from claims of adverse

 

  possession, violates both the U.S. and Vermont constitutions,(FN1) (2)
  notwithstanding § 462, plaintiffs enjoy an easement based on the doctrine
  of presumed grants, and (3) the church's claim of  unencumbered title to
  the driveway is barred by laches.  We affirm.

                               I.  Background

       The case was tried to the court, which issued extensive findings of
  fact, not challenged here, and conclusions of law. Accordingly, we draw our
  summary of the relevant facts from the trial court's findings.

       Plaintiffs' business, the Cold Hollow Cider Mill, operates on a 
  four-acre parcel of land located on the east side of Route 100 in Waterbury
  Center.  Bordering plaintiffs' property on the south and  also fronting on
  Route 100 is the real property owned by defendant, Waterbury Center
  Community Church, Inc., a Methodist congregation. Plaintiffs have run their
  business at its present location since April 1976, operating out of a
  series of buildings constructed in the early-to-mid-nineteenth century. 
  The church building was constructed in 1833, and the church traces its
  title to the land to a "conditional lease" executed in the following year. 
  The 1834 conveyance provides that the "premises shall be used and occupied
  by  [grantees] as a site for [a] Meeting house and necessary appendages
  thereto, and for no other purpose."

       Located between the buildings on plaintiffs' property and the  church
  building is a gravel driveway, referred to in the record as the "north
  driveway" and leading eastward from Route 100.(FN2) Branching off from the
  north driveway to the south is a second, semicircular driveway

  

  that provides direct access to the front of the church building.  The
  church uses the north driveway for vehicular access to its semicircular
  driveway as well as for parking to the north of the church building. 
  Plaintiffs use the north driveway to provide public access to their
  business.

       Since 1834, the church has held weekly religious services, additional
  services on religious holidays, and occasional weddings and funerals on its
  premises.  Church suppers have taken place there on an occasional basis
  throughout the twentieth century.  During the 1960s and 70s, church
  attendance fell off, and the condition of the church building deteriorated. 
  As a result, the church did not use the building during the winter months
  for several years.  However, use of the church building increased in the
  1980s, and it was restored.  Various outside groups such as Alcoholics
  Anonymous and Weight Watchers use the church occasionally.  The church
  holds three flea markets and three chicken pie suppers each year.  Weekly
  Sunday services generally attract between 40 and 50 worshipers.

       Plaintiffs' property was owned by Keith H. Gibbs and/or Colleen  R.
  Gibbs from 1945 to 1973, the last year in which Mrs. Gibbs occupied the
  property as a widow.  During this period, the owners used the property both
  for residential purposes and to conduct extensive commercial operations,
  including: a milk-hauling business; a dairy farm; marketing, auctioning and
  transportation of cattle; and the hauling of sand, gravel and fill.  All
  social and business invitees of the owners used the disputed driveway for
  parking and access to the rear of the property, as did their tenants and
  employees.  During this period, many large trucks used the driveway on a
  regular basis.

       From 1973 to July 1976, plaintiffs' property was occupied by  Richard
  and Linda Angelino. The Angelinos used the driveway for access for
  themselves and for tenants residing in an apartment on the premises, and
  for transporting horses onto and off the property. Farmers used the
  driveway during this period to access the Angelinos'  barn for hay storage. 
  The public was also permitted to use the driveway to gain access to farm
  pastures located to the east of the

 

  parties' property.

       Since purchasing the property in 1976, plaintiffs have used it for
  both residential and business purposes.  Their cider mill business has
  grown steadily during their ownership.  By 1994, annual visitors had
  increased to more than 250,000.  Mail-order and wholesale operations now
  account for more than half of the cider mill's business volume.

       A significant aspect of plaintiffs' business involves patrons 
  arriving by bus.  From the onset of operations through June 1991, defendant
  made no objection to buses gaining access to plaintiffs'  property via the
  north driveway.  During the first year plaintiffs operated their business,
  approximately fifty buses visited the facility.  By the late 1980s, the
  volume had increased to approximately 600 buses per year, ninety percent of
  which make their visits between late August and late October.  During this
  peak period, as many as thirty buses visit daily.  The buses unload their
  passengers on the north driveway and park behind the church on plaintiffs'
  property. Occasionally, a bus remains next to the church  with its engine
  idling to wait for another vehicle ahead of it to unload.

       Over the many years that plaintiffs or their predecessors in title
  have used the north driveway, they performed nearly all of the maintenance
  on it.  This work included grading, graveling and snow plowing, all of
  which have gradually widened the driveway approximately 1 « feet onto the
  lawn of the church.  No one associated with the church ever gave the
  plaintiffs or their predecessors permission to use the driveway and,
  indeed, no such permission was ever requested.

       The church engaged a surveyor in 1973 who determined that the north
  driveway is located entirely on the church's property.  A  second survey
  commissioned by the church in 1991 also confirmed that the church owned the
  north driveway.

       Church trustees invited plaintiffs to attend their meeting on June 13,
  1991.  At that meeting, the church trustees disclosed for the first time
  that they contended that the church owned the north driveway and that
  plaintiffs had no right to its use.  The church demanded

 

  deeded rights to parking on plaintiffs' property in exchange for  deeded
  rights to the north driveway.  Plaintiffs refused, maintaining they owned
  the driveway.  The church trustees warned the plaintiffs they would close
  off the north driveway for one complete day at some point before July 13,
  1991.

       On an unspecified date in July 1991, while the cider mill was open for
  business, one of defendant's trustees placed a barricade across the north
  driveway bearing a sign reading "driveway closed  today."  Plaintiff Eric
  Chittenden immediately removed the barricade  and placed it behind the
  church.  A similar incident occurred on Thanksgiving Day of 1991.  Twice in
  1992, work parties from the church erected fences across part or all of the
  north driveway.  On the last occasion, plaintiff had to use a forklift to
  remove the fence.  When it became clear that the church would continue to
  block the driveway, plaintiffs brought this action and sought a preliminary
  injunction.

       The complaint named as defendants the church, the chairman of its
  trustees and six other individuals whom plaintiffs contended were acting on
  the church's behalf.  Defendants counterclaimed, asserting  trespass and
  seeking a declaratory judgment in their favor on the easement issue.  In
  lieu of the requested preliminary injunctive relief, the parties agreed to
  preserve the status quo ante -- permitting plaintiffs to continue their use
  of the north driveway pending the ultimate resolution of the dispute.  The
  court bifurcated the case, deferring the issue of damages and conducting a
  bench trial to resolve the parties' competing ownership claims. Following
  trial  and the extensive findings summarized above, the court concluded
  that plaintiffs did not acquire an interest in the north driveway via
  adverse possession, a prescriptive easement or a presumptive grant. On
  motion of plaintiffs, the court amended its findings and conclusions to
  determine, in relevant part, that the equitable doctrine of laches has no
  application to this case. The court entered its judgment on May 12, 1997,
  and this appeal followed.

                  II.  Constitutionality of 12 V.S.A. § 462

       Plaintiffs' first claim on appeal is that 12 V.S.A. § 462 is 
  unconstitutional.  The trial

 

  court relied on this statute in determining that plaintiffs have no claim
  to the north driveway by adverse possession or prescriptive easement.

       Generally, Vermont law applies a fifteen-year limitation period to
  actions seeking recovery or possession of land.  See 12 V.S.A. § 502. 
  Accordingly, one who seeks to maintain a claim of adverse possession or to
  assert a prescriptive easement must demonstrate that the use or possession
  in question has outlasted this limitation period.  See Community Feed
  Store, Inc. v. Northeastern Culvert Corp., 151 Vt. 152, 155, 559 A.2d 1068,
  1070 (1989) (noting that elements of adverse possession and prescriptive
  easement claims are "essentially the same").  In this case, however, there
  is no limitation period because of the effect of 12 V.S.A. § 462.  That
  provision exempts from any limitation period all ownership claims relating
  to "lands given, granted, or sequestered or appropriated to  a public,
  pious or charitable use, or to lands belonging to the state."  Id.

       Plaintiffs contend that § 462 violates the Establishment Clause of the
  First Amendment to the United States Constitution as well as Chapter I,
  Article 3 of the Vermont Constitution because it promotes religious use of
  property over non-religious use.  We note, however, that plaintiffs rely
  exclusively on case law interpreting the United States Constitution and do
  not maintain that the Vermont Constitution affords more protection to them
  in this case.(FN3)  Accordingly, we decide the case only under federal
  constitutional law principles.

       The First Amendment to the United States Constitution provides in
  relevant part that "Congress shall make no law respecting an  establishment
  of religion."  The prohibition expressed in the  Establishment Clause
  applies to the states by operation of the Fourteenth Amendment.  See
  Everson v. Board of Educ., 330 U.S. 1, 8 (1946).

       Twenty-eight years ago, the Supreme Court in Walz v. Tax Commission of
  the City of

 

  New York, 397 U.S. 664 (1970), declined to invalidate on Establishment
  Clause grounds New York's property tax exemption for  religious
  institutions.  The applicable statute exempted not only property belonging
  to religious institutions but also to realty owned by entities organized
  for any of the following diverse purposes: "the  moral or mental
  improvement of men and women, or for religious, bible, tract, charitable,
  benevolent, missionary, hospital, infirmary, educational, public
  playground, scientific, literary, bar association, medical society,
  library, patriotic, historical or cemetery . . . ."  Id. at 667 n.1. 
  Noting that the purpose of such  an exemption was "neither the advancement
  nor the inhibition of  religion," the Court observed that New York had not
  "singled out one particular church or religious group or even churches as
  such" but  instead had included houses of worship "within a broad class of 
  property" owned by groups that foster the moral or mental improvement  of
  the community and are generally considered "beneficial and  stabilizing
  influences in community life."  Id. at 672-73.  Thus, the  New York statute
  met what has come to be known in First Amendment jurisprudence as the
  "secular purpose" test.  See Agostini v. Felton, 117 S. Ct. 1997, 2008
  (1997) (citing Lemon v. Kurtzman, 403 U.S. 602 (1971)).

       In the Supreme Court's view, two other factors supported its  analysis
  of the statute's purpose.  First, the statute created an  exemption from
  taxation rather than direct monetary support:  "We  cannot read New York's
  statute as attempting to establish religion;  it is simply sparing the
  exercise of religion from the burden of property taxation levied on private
  profit institutions.   Walz, 397 U.S.  at 673.  Second, property tax
  exemptions of the type represented in the New York statute were in
  existence from the earliest days of the United States:  An unbroken
  practice of according the exemption to churches, openly and by affirmative
  state action, not covertly or by state inaction, is not something to be
  lightly cast aside.   Id. at 678.

       In terms of secular purpose, § 462 cannot be meaningfully
  distinguished from the statute analyzed in Walz.  Section 462 includes
  property dedicated to "pious" use among a broad class of property the use
  of which is generally considered sufficiently benevolent to warrant a

 

  perpetual exemption from adverse possession claims or prescriptive
  easements.  In the early case of Society for  the Propagation of the Gospel
  v. Town of Pawlet, 29 U.S. 480, 505 (1830), the United States Supreme Court
  described the policy behind the Vermont statute:

           There are good grounds why statutes of limitation should
           not be applied against grants for public, pious, and
           charitable uses, when they may well be applied against
           mere private rights.  The public have a deep and
           permanent interest in such charities, and that interest
           far outweighs all considerations of mere private
           convenience.

  This policy is reflected in Chapter II, § 68 of the Vermont Constitution,
  which protects pious activities as part of a broader class of benevolent
  objectives:

           All religious societies, or bodies of people that may
           be united or incorporated for the advancement of
           religion and learning, or for other pious or
           charitable purposes, shall be encouraged and protected
           in the enjoyment of the privileges, immunities, and
           estates, which they in justice ought to enjoy, under
           such regulations as the general assembly of this state
           shall direct.

  The other factors enumerated in Walz are also present here.  There is no
  direct governmental support for religious activities; instead, the statute
  provides an exemption from a law that might inhibit religious activities. 
  The specific statute before us was adopted in a form substantially
  identical to its present form in 1801, see Laws of 1801, at 13, but its
  substance derives from laws adopted before our statehood, see University of
  Vermont v. Reynolds, 3 Vt. 542, 555-56 (1831) (quoting "quieting act"
  passed in 1785 and discussing various enactments applicable between 1785
  and 1801).

       As plaintiffs conceded at oral argument, the church's  property would
  also qualify for protection under § 462 because it is dedicated to
  "charitable use."  Although it may be possible in theory that the use of a
  property could be pious without being charitable, for purposes of this case
  the reference to "pious" use in § 462 simply serves to clarify that a
  church is part of that broad class of properties -- ones dedicated to
  charitable uses -- that enjoys the statute's protection. At least as
  applied here, the purpose of § 462  is unmistakably secular.

       Plaintiffs argue, however, that the class of beneficiaries at issue
  here is narrower than

 

  the one at issue in Walz and that, as a result, we cannot find a secular
  purpose.  Although the exemption in Vermont of  public, pious or charitable 
  uses is more general than that in the New York statute discussed in Walz,
  it is not clear whether one is broader than the other.  In any event, we do
  not agree that our analysis should turn on a count of enumerated benefitted
  categories.  In the one case following Walz where the United States Supreme
  Court found that an exemption for religious activities offended the
  Establishment Clause, the Court held that the necessary breadth of the
  beneficiary class depended on the  secular aim  involved.  See Texas
  Monthly, Inc. v. Bullock, 489 U.S. 1, 15 (1989).  In reaching its decision,
  however, the Court stated a very narrow rule:

           [W]hen government directs a subsidy exclusively to
           religious organizations that is not required by the
           Free Exercise Clause and that either burdens
           nonbeneficiaries markedly or cannot reasonably be
           seen as removing a significant state-imposed
           deterrent to the free exercise of religion . . . , it
           "provide[s] unjustifiable awards of assistance to 
           religious organizations" and cannot but "conve[y] a
           message of endorsement" to slighted members of the 
           community.

  Id. at 15 (quoting Corporation of Presiding Bishop of Church of Jesus
  Christ of Latter-day Saints v. Amos, 483 U.S. 327, 348 (1987) (O Connor,
  J., concurring)).

       Under this standard, the Court struck down as too narrow a Texas
  statute that provided a sales tax exemption to periodicals only if they
  were published by a religious faith and consisted of writings teaching the
  faith or sacred to the faith.  Id. at 17; see also Appeal of Springmoor,
  Inc., 498 S.E.2d 177, 182 (N.C. 1998) (property tax exemption for home for
  the aged, sick or infirm, only if owned by religious or Masonic
  organization, is too narrowly drawn and has no legitimate secular
  objective).  We have no difficulty in holding that § 462 is sufficiently
  broad to implement its purpose, as expressed in Society for the Propagation
  of the Gospel, and to show a secular objective that justifies the
  preference it contains.  See Walz, 397 U.S.  at 696 (Harlan, J., concurring)
  (critical question is whether "circumference of legislation encircles a
  class so broad that it can  fairly be concluded that religious institutions
  could be thought to fall within the natural perimeter").

 

       As noted in Walz, and as refined in the Supreme Court's  later cases,
  discerning the requisite secular purpose does not end the inquiry.  Id. at
  674.  Whatever a statute's purpose, it runs afoul of  the Establishment
  Clause if its "effect" is that of either "advancing  or inhibiting
  religion."  Agostini, 117 S. Ct.  at 2010.  Further, the  statute is
  unconstitutional if it fosters "an excessive government  entanglement with
  religion."  Lemon, 403 U.S.  at 613 (quoting Walz,  397 U.S. at 674).

       We are unable to discern any sense in which § 462 either advances or
  inhibits religion. "A law is not unconstitutional simply  because it allows
  churches to advance religion, which is their purpose."  Amos, 483 U.S.  at
  337 (emphasis in original).  Rather, the  relevant question is whether "the
  government itself has advanced  religion through its own activities and
  influence." Id. (emphasis in  original).  Here, plaintiffs generate no
  evidence to suggest that the effect of § 462 is any different from its
  purpose, which is not to advance religion but to shield real property
  devoted to charitable purposes from adverse ownership claims.

       Nor is there any basis for concluding that § 462 fosters an excessive
  government entanglement with religion.  "Not all  entanglements . . . have
  the effect of advancing or inhibiting religion.  Interaction between church
  and state is inevitable."   Agostini, 117 S. Ct.  at 2015 (noting that "some
  level of involvement" between church and state has always been
  constitutionally permissible).  Here, the only basis advanced by the
  plaintiffs for a finding of excessive entanglement is that courts are the
  ultimate arbiters of whether § 462 defeats what would otherwise be a
  meritorious claim to an interest in property.  This exact same entanglement 
  was present in Walz by virtue of the judicial determination as to whether
  the property owner was entitled to the tax exemption; that reality was not
  fatal to the constitutionality of the exemption. As pointed out by the
  amici, if a court's analysis and decision-making constituted  excessive
  government entanglement  then religious institutions would never have
  recourse in court as to any dispute in which their religious status was in
  issue.  See Jones v. Wolf, 443 U.S. 595, 604 (1979) (courts may resolve
  dispute over church property,

 

  but only if case does not turn on "religious doctrine and practice").

       Plaintiffs further posit that judicial enforcement of § 462 creates an
  entanglement that is excessive because a court may be called upon to
  determine whether a religious institution's particular  use of the property
  in question is truly "pious" within the meaning of the statute. Assuming
  arguendo that judicial determinations of piety would excessively entangle
  the courts in matters of religion, it is a problem we simply do not
  confront here.  There was no issue in the trial court over whether the
  church's property is devoted to pious  use, and, as already noted,
  plaintiffs have conceded that the property is also used for charitable
  purposes within the meaning of the statute.  Because we avoid construing a
  Vermont statute so as to render it unconstitutional whenever that is
  "fairly and reasonably  possible," see In re Delinquency Proceedings
  Concerning a Certain  Juvenile, 129 Vt. 185, 189, 274 A.2d 506, 509 (1970),
  we must assume for present purposes that any property belonging to a
  religious institution would be "pious" within the meaning of § 462.  No
  reason presents itself to conjure the specter of judicial incursions into
  the realm of religious doctrine.

       In sum, the principles first laid out in Walz and subsequently
  elaborated upon in cases from Lemon to Agostini make clear that § 462, as
  applied in the circumstances in this case, does not violate the
  Establishment Clause.  The Vermont Legislature has shielded both religious
  institutions and the more broad category of charitable organizations from
  adverse property claims. An entity that qualifies as either may invoke the
  protection without implicating the First Amendment.

                            III.  Presumed Grant

       As they did in the trial court, plaintiffs also seek to advance a
  theory here by which they would acquire an easement regardless of the
  operation of § 462.  This is the so-called doctrine of presumptive (or
  lost) grant, which we endorsed most recently in University of Vermont v.
  Carter, 110 Vt. 206, 3 A.2d 533 (1939).  Like the present case, Carter
  involved a situation in which § 462 operated to exempt the holder of legal
  title -- there, the University of Vermont --

 

  from the otherwise-applicable limitation period for actions to recover
  possession.  Id. at 210, 3 A.2d  at 535.  We nevertheless held that § 462
  would not defeat plaintiffs' claim of adverse possession because, in the
  circumstances, "a grant can be presumed to the defendants or  some of their
  predecessors in title from the plaintiff. . . ."  Id. at  216, 3 A.2d  at
  537.  Here, while acknowledging the principle articulated in Carter, the
  trial court refused to presume that the church had granted an easement to
  plaintiffs.  We agree with the trial court, although for somewhat different
  reasons.

       Some historical background is useful.  Like many arcane and seemingly
  anomalous principles in the law of real property, the presumed grant has
  its roots in the common law as developed in England prior to the American
  Revolution.  Statutes enacted by Parliament in 1540 and 1623 had the effect
  of imposing what would ultimately come to be a twenty-year limitation
  period on ejectment claims.  See J. Curtis, Reviving the Lost Grant, 23
  Real Prop., Prob. & Tr. J. 535, 536-37 (1988).  The advent of this
  requirement was relevant only to adverse possession and not easements by
  prescription, since the existence of a valid ejectment claim is dispositive
  of the issue of who may lawfully possess (as distinct from simply use) the
  property. See id at 537. The law of prescriptive easements developed along
  different lines:

           [W]ithout regard to a limitation period, an incorporeal
           claim was validated by proof of use alone.  The requisite
           period of use has varied from time to time.  Originally,
           the period may have been either 1066 (the year of the
           Norman Conquest) or a period beyond the memory of living
           persons.  Eventually, the date from which the use had to
           be exercised was fixed as 3 September 1189, often
           described as the time of legal memory.  There it remained,
           despite the statutes of 1540 and 1623, because the English
           courts refused to apply those enactments to cases
           involving incorporeal claims.

  Id. at 537 (footnotes omitted).  Proving that a particular use had existed
  since 1189 grew impractical to say the least, and, as a consequence, courts
  adopted the practice of presuming, based on a showing of longtime use, that
  an actual grant of the right had been made but the instrument granting the
  right had simply been lost.  See id. at 537-38; see also Restatement
  (Third) of Property (Servitudes) § 2.16 cmt. a (Tentative Draft No. 3,
  1993); R. Cunningham

 

  et al., The  Law of Property § 8.7, at 451 (1984); Note, Prescription in a
  Sea of  Servitudes: Postmodernism and the Lost Grant, 43 Duke L.J. 845, 863
  (1994) (lost grant presumption arose "to avoid the  inconvenience of
  searching for an octogenarian with a particularly fertile memory").
  Eventually, English law fixed twenty years as the  period of use that would
  be sufficient to establish the presumption of a lost grant.  See Curtis,
  supra at 536-37; see also 4 H. Tiffany, The Law of Real  Property § 1191,
  at 960 (3d ed. 1975) (noting that this period was established by "analogy
  to the period of limitation").

       Although, under the English precedents, the presumption of a lost
  grant applied only to incorporeal claims -- that is, non-possessory
  interests -- its adoption in the United States often did not include that
  limitation.  Thus, Carter and the Vermont cases cited therein applied the
  presumption of a lost grant to a possessory interest creating an
  alternative method of accomplishing the purpose of adverse possession that
  did not depend on the running of a limitation period.  See Curtis, supra at
  542-43 (despite analogy to limitation period for ejectment actions, "in
  reality the requisite  period may be longer or shorter than the limitation
  period.").   Meanwhile, our decisions blended the concepts of adverse
  possession and prescriptive easement.  See Community Feed Store, 151 Vt. at
  155, 559 A.2d  at 1070 (elements of prescriptive easement and adverse
  possession claims "essentially the same under Vermont law"); Russell v.
  Pare, 132 Vt. 397, 401, 321 A.2d 77, 80 (1974) (distinction between adverse
  possession and prescriptive easement "not always clear" but the applicable
  rules are "in harmony" and have common roots in doctrine of presumed grants
  and analogy to statute of limitations).

       It is fair to say that the doctrine of presumed grants is presently
  under siege.  The American Law Institute, in its tentative draft of the
  third Restatement of Property, concedes that presumed grants "played a
  substantial role in American law for many years," but takes the position
  that the "vestigial remnants" of the doctrine should now be "eradicated." 
  Restatement (Third) of Property (Servitudes) (Tentative Draft No. 3, 1993)
  at Introduction.  According to the drafters, other historical doctrines
  "provide a satisfactory  explanation" for the law of 

 

  prescriptive easements.  Id.  Or, as other commentators have noted,

           [t]he blending of prescription and adverse possession
           [in American law], whether right or wrong in history and
           theory, has in fact made title arise simply by the
           running of the applicable statute of limitations.  There
           is no need to presume usage back to 1189 (in America?)
           and so no need to presume a lost grant.  Except for
           historical purposes, discussions of the subject should
           drop out of the legal literature.

  Cunningham, supra, § 8.7, at 451.

       Defendants urge us to eliminate presumed grants from our law as wholly
  inconsistent with the protection to public, pious and charitable uses that
  the Legislature adopted in 12 V.S.A. § 462. That position has some appeal. 
  If, as we said in Russell, the theories underlying both prescriptive
  easements and adverse possession lead to the conclusion that "the
  applicable statute of limitations [is] a part of the doctrine" underlying
  both kinds of claims, Russell,  132 Vt. at 401, 321 A.2d  at 81, and given
  that the Legislature has so plainly declared that what is essentially an
  infinite limitation period should protect owners of land dedicated to
  public, pious or charitable uses as well as the state as landowner, the
  presumed grant doctrine in Carter could plausibly be discarded as a
  mischievous anachronism.

       We need not take that step at this time.  As discussed above, a
  statutory exemption from the limitation period has existed for public,
  pious and charitable uses at least since 1785, and the 1831 decision in
  University of Vermont v. Reynolds, 3 Vt. 542 (1831) held that the
  presumption of a lost grant applied to such uses despite the statutory
  protection.  Although we are "not slavish adherents to  stare decisis,"
  State v. Berini, ___ Vt. ___, ___, 701 A.2d 1055, 1056  (1997), we do not
  "lightly overrule settled law especially where it  involves construction of
  a statute which the legislature could change at any time," Estate of Girard
  v. Laird, 159 Vt. 508, 515, 621 A.2d 1265, 1269 (1993).  Here, our
  construction of the statute has existed, without legislative change, for
  almost two centuries.

       We do believe, however, that the doctrine of presumed grants is at
  least in need of a modern restatement, at least as applied to uses covered
  by § 462.  "[T]here is a presumption that

  

  the Legislature does not intend to enact meaningless legislation . . .
  [and], thus, when we construe a statute, we must do so in a manner that
  will not render it ineffective or meaningless."  State v. Yorkey,  163 Vt.
  355, 358, 657 A.2d 1079, 1080 (1995) (citations omitted).  The result urged
  upon us by the plaintiffs would render § 462 a meaningless nullity by
  allowing a party with a claim adverse to an entity protected by the statute
  to defeat it by simply repeating the magic words:  presumed grant.  We
  cannot accept a doctrine, the only remaining purpose of which evading a
  statutory protection in all cases where it would arise.

       The key to any modern application of the doctrine of a presumed grant
  is that it involves a presumption.  As noted by a contemporary defender of
  the presumed grant doctrine, a decision like Carter, applying the theory in
  the face of the legislative determination made by § 462, "assume[s] that
  legislators know the  difference between a statute of limitation and a rule
  of evidence and that legislative qualifications to limitation periods do
  not repudiate this ancient evidentiary rule."  Curtis, supra, at 549.  Our
  cases  reflect the view that Vermont's doctrine of presumed grants is
  indeed  a rule of evidence and involves a presumption, although the nature
  of that presumption has been at times ill defined.  See Trustees of
  Caledonia County Grammar Sch. v. Howard, 84 Vt. 1, 11-15, 77 A. 877, 879-82
  (1910) (discussing when the presumption of a lost grant arises); Tracy v.
  Atherton, 36 Vt. 503, 511-13 (1864) (discussing nature of presumption of
  lost grant); Townsend v. Administrator of the Estate of Downer, 32 Vt. 183,
  205 (1859) (noting, in discussion of lost grant presumption, that 
  [s]ometimes these presumptions are held to be conclusive, at others open to
  be rebutted  and concluding that [t]he line between conclusive and
  disputable presumptions is not well defined ); Reynolds, 3 Vt. at 560 (long
  standing possession was evidence  that possession was commenced under title
  and jury should have been instructed, inter alia,  to presume an antecedent
  grant ).

       In Tyrrell v. Prudential Insurance Company, 109 Vt. 6, 23, 192 A. 184,
  192 (1937), this Court attempted to bring method and order to our law on
  presumptions after concluding  that a false doctrine has dominated the
  subject and persisted in our law too long . . . .   We went

 

  on to hold that a disputable presumption is "locative, merely  --  i.e.,
  "[i]t points out the party on whom lies the duty of going  forward with
  evidence on the fact presumed" -- and of itself  contributes "no evidence
  and has no probative quality."  Id. at 23, 192 A.  at 192.  By Vermont Rule
  of Evidence 301(a), we have now adopted the policy that all presumptions in
  civil cases are Tyrrell "bursting bubble" presumptions "except as otherwise
  provided by law.    See Reporter's Notes to V.R.E. 301 (noting that, under 
  bursting bubble  theory,  a presumption shifts only the burden of
  production, losing its mandatory effect as soon as evidence sufficient to
  support a finding of the nonexistence of the presumed fact is
  introduced.").   The exception "recognizes the possibility that for reasons
  of policy  in a particular situation, the legislature, by statute, or the
  Court by judicial decision, may give different effect to a presumption than
  that accorded by the rule."  Id.

       We believe that much of the lack of definition in our cases about the
  presumption of a lost grant involves the doctrinal conflicts resolved by
  Tyrrell.  See id. (contrasting "bursting bubble" with other formulations of
  presumption theory); Tyrrell, 109 Vt. at 22-23 (discussing inconsistent
  presumption theories in prior Vermont cases). Despite the then-existing
  confusion, this Court noted in Tracy, 36 Vt. at 513, that  whether the
  presumption arising from the length of possession is one of law, or one of
  fact, . . . whichever it may be it is liable to be rebutted in various
  ways. Since the presumption could be rebutted, it was subject to the 
  bursting bubble  rule of Tyrrell and is covered by Rule 301(a).(FN4) We have
  no policy reason to reach a different result, particularly where § 462 is
  involved.  Indeed, treating the presumption of a lost grant as a
  rebuttable, "bursting  bubble"  presumption is fully consistent with the
  policy behind 

 

  § 462.

       Although the trial court did not analyze the presumption of a lost
  grant under V.R.E. 301, we have no doubt that it reached the correct
  conclusion.  The trial court declined to invoke the presumed grant
  doctrine, concluding:

     Plaintiffs are not entitled to the presumption of the grant
     of church property merely because their business activities
     currently enjoy a greater attendance than church services.
     Moreover, the plaintiffs' commercial use of the driveway has 
     altered and swelled with the growth of their business to such
     a degree that it fundamentally affects the church's pious use 
     of its property.  The noise and fumes that accompany the
     comings and goings of buses and motorcoaches transporting up
     to 6,000 customers daily to the mill excessively intrude on
     church uses of its land.

  Accordingly, the trial court determined that presuming a lost grant "would
  be unjust and unreasonable where plaintiffs' commercial use has  been in
  common with church's religious use but has steadily expanded to  overwhelm
  it.

       We reach the same result under V.R.E. 301.  The church's title to the
  property traces to a conveyance expressly providing that it shall use and
  occupy the land for religious purposes and no other.  The trial court
  determined that the church's grantor retained a right of reentry in certain
  circumstances.(FN5)   We believe that the existence of the right of reentry
  was sufficient to rebut any presumption of a lost grant because it
  establishes that the church would have put its title to the driveway at
  risk if it gave plaintiffs, or their predecessors in title, an easement to
  use the driveway for commercial purposes.  Cf. Reynolds, 3 Vt. at 560 ( If
  it was necessary in this case to presume a deed from the trustees of the
  university to establish the defendant's claim, it  would not be
  established, as the trustees never had any power to convey by deed. ). 
  Because any presumption of a lost grant was rebutted and was no longer in
  the case, see V.R.E. 301(c)(3) (providing that issues involving rebutted
  presumption are presented to factfinder "on 

 

  the evidence as a whole without reference to the presumption), the trial
  court properly applied 12 V.S.A. § 462 to resolve the dispute in
  defendant's favor.

                                 IV.  Laches

       Finally, plaintiffs contend that the trial court erred in not applying
  the equitable doctrine of laches so as to bar any effort by the church to
  defeat plaintiffs' claim to an easement in the driveway.  We  disagree.

       "Laches is the failure to assert a right for an unreasonable  and
  unexplained period of time when the delay has been prejudicial to the
  adverse party, rendering it inequitable to enforce the right."  In  re
  Vermont Elec. Coop., Inc., 165 Vt. 634, 635, 687 A.2d 883, 884-85 (1994)
  (citation omitted).  The delay must be  unexcused  and prejudicial.  In re
  Estate of Neil, 152 Vt. 124, 132, 565 A.2d 1309, 1314 (1989).   "[L]aches
  is so much a matter of discretion by the lower court that its action will
  not be disturbed unless clearly shown to be wrong."  Vermont Elec. Coop.,
  165 Vt. at 635, 687 A.2d  at 885 (citation  and internal quotation marks
  omitted).  The trial court did not commit clear error.

       We are unable to agree with plaintiffs that they suffered the
  requisite prejudice.  Any delay by the church in asserting its exclusive
  right to possess the driveway actually benefitted rather than harmed
  plaintiffs because it tended to bolster their claim of a prescriptive
  easement. Moreover, even if prejudice were established on this record, we
  cannot find that church's delay in asserting its rights was unexcused. 
  Because of § 462, it had no legal obligation to raise its rights at any
  particular time.  It could consent to shared use of the driveway until the
  frequency and intensity of plaintiffs' use became inconsistent with the
  functioning of the church.   Laches is not an elixir that automatically
  relieves landowners of the effects of any erroneous assumptions they may
  make as they use and develop their property -- particularly in the face of
  public policy determinations that conflict with the assumptions in
  question.  See, e.g., State v. Central Vermont Rwy. Inc., 153 Vt. 337, 353,
  571 A.2d 1128, 1136 (1989) (holding that laches would not bar claim
  deriving from pre-revolutionary public trust doctrine).  Assuming arguendo
  that

 


  there was both some delay and some prejudice here, the trial court
  still acted within its sound discretion.

                               V.  Conclusion

       12 V.S.A. § 462, which prevents the statute of limitations period from
  running against the church's claim of exclusive rights to  the church's
  north driveway, is neither constitutionally infirm nor  evaded by the
  doctrine of presumed grants in the circumstances of the case.  The trial
  court correctly so concluded and did not abuse its discretion in declining
  to change the result based on laches. Accordingly, we leave undisturbed the
  trial court's ultimate determination that the church owns the property at
  issue free of any claim by plaintiffs and that plaintiffs have no right to
  use or to cross over any part of the church's premises without its
  permission.

       Affirmed.


                       FOR THE COURT:



                       _______________________________________
                       Associate Justice



  ---------------------------------------------------------------------
                                  Footnotes


  FN1. On this point, defendant is supported here by an amici curiae
  brief filed by the Church of Jesus Christ of Latter-Day Saints; Baptist
  Joint Committee on Public Affairs; Christian Legal Society; First Church of
  Christ, Scientist; United Methodist Church; General Assembly of the
  Presbyterian Church; Reorganized Church of Jesus Christ of Latter Day
  Saints; Seventh-day Adventists Church; United House of Prayer; and
  Worldwide Church of God.

  FN2. There is also a south driveway on the church's property.  At 
  times it has been used to give access to parts of plaintiffs' property,
  particularly that lying behind and to the east of defendant's parcel.  The
  parties' respective rights to the south driveway were also an issue in the
  trial court, which made extensive findings on the subject.  Since the south
  driveway does not directly figure in the issues on appeal, we have omitted
  the findings relevant to it.

  FN3.  In fact, plaintiffs note in their reply brief that amici curiae
  assert that the protections of the First Amendment are greater than those
  of Chapter I, Article 3 and state that they "agree on this point."

  FN4. The only lost grant case after Tyrrell us Carter.  Although
  Carter definitively held that 12 V.S.A. § 462 did not foreclose the
  invocation of the presumed grant theory in a case involving property
  covered by the statute, left unresolved was the applicability of Tyrrell in
  such a situation. The Court stated:  In view of the concluding statement in
  the agreed statement of facts . . . , it is not necessary to determine the
  nature of the presumption, nothing appearing in the agreed statement to
  rebut or repel the same.   110 Vt. at 216, 3 A.2d  at 537.

  FN5. The issue of the grantor's right of reentry was actually raised
  by     plainfiffs, who sough to enforce it and oust the church from
  possession of the realty.  The trial court rejected this argument.  We
  agree that it does not defeat the church's current title.