Rowe v. Lavanway
Annotate this Case
Rowe v. Lavanway (2005-043); 180 Vt. 505; 904 A.2d 78
2006 VT 47
[Filed 30-May-2006]
ENTRY ORDER
2006 VT 47
SUPREME COURT DOCKET NO. 2005-043
NOVEMBER TERM, 2005
James Rowe and Valerie Banschbach } APPEALED FROM:
}
v. } Chittenden Superior Court
}
Michael Lavanway and Janet Lavanway }
} DOCKET NO. S1159-02 CnC
Trial Judge: Matthew I. Katz
In the above-entitled cause, the Clerk will enter:
¶ 1. Plaintiffs James Rowe and Valerie Banschbach appeal from the
trial court's order, which found that defendants Michael and Janet Lavanway
possessed a right-of-way across their property pursuant to the terms of an
1881 deed. They argue that the trial court erred in: (1) interpreting the
1881 deed; (2) rejecting their claim that their predecessor-in-interest had
extinguished the right-of-way; and (3) concluding that automobile use was
allowed on the easement. We affirm.
¶ 2. Plaintiffs and defendants are neighboring landowners in
Jericho, Vermont. Defendants own a significant portion of acreage to the
north of plaintiffs, and they claimed a right-of-way extending northerly
from Palmer Lane across the easternmost lands of plaintiffs, terminating at
and affording access to their meadow. In September 2002, plaintiffs filed
a complaint against defendants, alleging that defendants had trespassed on
their property by accessing the alleged right-of-way. Plaintiffs sought
injunctive relief against any further trespass by defendants. A court
trial was held, which included a site visit, and the court found in favor
of defendants.
¶ 3. The court concluded that an appurtenant right-of-way had been
created by an 1881 deed (from Eastman and Nutting to Brown) that was within
defendants' chain-of-title. The deed provided in part:
Said Brown his heirs or assigns are forever to have the right to
pass through other lands now owned by said Eastman and Nutting in
the lane as it now is in passing to and from the land hereby
conveyed to said Brown for all purposes whatever.
* * *
We also hereby mean to convey to the said Brown the lane about
thirty-feet wide on the southeasterly side of the land now
occupied by Levi Nutting as a pasture and leading to land now and
heretofore owned by said Brown, and bounded on the southeasterly
side by land now belonging to Harmon Sherman's Estate. Said Brown
agrees to put up all bars in the lane in passing to and from the
land hereby conveyed.
TO HOLD SAID GRANTED PREMISES WITH THE APPURTENANCES THEREOF
FOREVER.
¶ 4. The court found that the passage cited above in bold
constituted the description and grant of the right-of-way at issue, and the
passage in small capitals was the deed's habendum. See Kipp v. Chips
Estate, 169 Vt. 102, 104 n.1, 732 A.2d 127, 129 n.1 (1999) ("The habendum
clause in a deed typically sets forth the estate to be held by the grantee.
While the granting clause actively transfers the land from the grantor to
the grantee/s, the habendum clause seeks to describe the type of title that
has been granted"). The court rejected plaintiffs' contention that the
absence of words of inheritance rendered the grant a mere personal license
to Brown. The court explained that, although the words of inheritance had
not been included in the granting clause or the habendum, the word
"appurtenances" was included in the habendum. The court found that there
were only two possible appurtenant easements in the deed-those created by
the language italicized and bolded above. It concluded that both
provisions created easements and each satisfied the criteria for an
easement appurtenant because they served a parcel of land. The court thus
found that to give meaning to the word "appurtenances" in the habendum, the
parties must have intended both easements to be appurtenant to their
respective parcels.
¶ 5. The court found its interpretation bolstered by the rule of
construction that an easement appurtenant is favored over a personal
easement. It explained that the right-of-way must be considered an
appurtenance of the parcel for which it provided ingress and egress. As
additional support, the court pointed to an 1883 deed from Eastman to
Nutting, which described a parcel being conveyed as "bounded north by land
of Rufus Brown, east by the lane running north to said Brown's land." The
court thus concluded that the right-of-way had been created by the deed, it
attached to the dominant parcel, and it had been transferred through
defendants' chain-of-title.
¶ 6. The court turned next to plaintiffs' claim that their
predecessor-in-title, an individual named Bortz, had extinguished the
right-of-way. The court explained that to divest the holder of a dominant
estate of his interest in an easement, the holder of the servient estate
needed to make clear its intention to work an ouster; it must be hostile,
and it must consist of a clear and affirmative blocking of the
right-of-way. In conducting its analysis, the court viewed the conduct
objectively.
¶ 7. The court found that defendants' predecessor-in-title, an
individual named Higgins, had asserted his right to use the right-of-way,
and he had expressed this view to Bortz. Bortz did not believe that the
right-of-way existed. At some point, Bortz installed a driveway that
proceeded northerly down the right-of-way at issue and then curved westward
toward Bortz's house. In the process, Bortz graded the land in dispute.
The court explained that many years before Bortz's construction of the
driveway, crude stone walls had been erected along either side of the lane.
During construction, Bortz's excavator broke through the westerly stone
wall at the curve of the path of the driveway. Some of the stones were
placed along the outside of the driveway curve. The court found that the
stones might have had the effect of tending to block use of the
right-of-way or constitute an act hostile to passage along it. On a
subjective level, however, the court found no evidence that Bortz directed
his excavator to so place the stones, nor any evidence that the excavator
knew of the potential dispute between Bortz and Higgins regarding the
right-of-way. The court found that, more significantly, the stones did not
remain in that position for very long. They interfered with snow removal,
and with Bortz's permission, the stones were pushed over the edge of the
driveway, and down into the gully that marked the continuation of the
disputed lane.
¶ 8. The court explained that Bortz's creation of a driveway had
resulted in a berm that impeded travel along the lane if one were coming
from defendants' land to the north. The berm created a drop of perhaps
three feet if one were coming from Palmer Lane. The court stated that,
although the driveway and berm might constitute something of an impediment
to ordinary auto travel, a vehicle with four-wheel drive could still access
the route. The court noted that defendant Rowe had driven his Jeep up the
driveway and onto the lane. The driveway had remained in place for well
over fifteen years, perhaps more than thirty. The court found that the
visual effect of the driveway and berm was precisely that-a level driveway
and sloping base necessary to create the driveway from material found on
the site. An objective observer would not view it as Bortz deliberately
blocking access along the lane. The court concluded that the driveway
construction should be considered for what it was-a driveway with a berm of
earth necessary to support it. It explained that, although the berm might
somewhat impede travel along the disputed lane, it was "nothing that a few
yards of fill could not remedy." Its purpose was simply to create a
driveway rather than to block the dominant estate. The court found that
construction of the driveway would not have put Higgins on notice that
Bortz was trying to oust him from his easement. The court therefore found
that plaintiffs had not established ouster.
¶ 9. Finally, the court rejected plaintiffs' assertion that the
lane could not be used for automobile travel. It concluded that because
there had been no limitation on the grantee's use of the right-of-way in
the 1881 deed, none should be imported. In reaching its conclusion, the
court recognized that over time, the possible use of the right-of-way had
evolved from animal traffic to automobile use. Plaintiffs filed a motion
for reconsideration, which was denied, and this appeal followed.
¶ 10. Plaintiffs first argue that the court erred in interpreting
the terms of the 1881 deed. They assert that the deed did not create an
appurtenant right-of-way because the grant did not include words of
inheritance. Plaintiffs maintain that the court erred in looking at the
habendum clause when the granting language was clear. Plaintiffs further
assert that the word "appurtenances" does not mean what the court found it
to mean, and that the court erred in giving the word independent legal
significance and effect. Even assuming that the term could be so
interpreted, plaintiffs argue, the habendum would be inconsistent with the
terms of the grant and therefore invalid. According to plaintiffs, the
context of the full deed evinces the parties' intent to convey an easement
for the exclusive benefit of grantee Brown. Plaintiffs find support for
their position in the deed's imposition of a personal obligation on Brown
to "put up all bars in the lane passing to and from the land hereby
conveyed."
¶ 11. We reject these arguments. Our goal in interpreting a deed
is to implement the intent of the partes. Kipp, 169 Vt. at 105, 732 A.2d
at 129; see also Barrett v. Kunz, 158 Vt. 15, 18, 604 A.2d 1278, 1280
(1992) ("The character of an easement depends on 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."). We look first to the language of the written instrument
because we presume that it declares the parties' intent. Kipp, 169 Vt. at
105, 732 A.2d at 129. The parties' intent, "when ascertainable from the
entire instrument, prevails over technical terms or their formal
arrangement." Id. (quotations omitted). In interpreting a deed, we "read
the entire written instrument as a whole, giving effect to every part so as
to understand the words in the context of the full deed. In so doing, we
construe the various clauses of the document, wherever possible, so that
the deed has a consistent, or harmonious meaning." Id. (citations and
quotations omitted).
¶ 12. In this case, the trial court concluded that the deed as a
whole reflected the grantor's intent to convey an appurtenant easement. We
agree. An appurtenant easement is one that serves a parcel of land rather
than a particular person, and a construction that an easement is
appurtenant is favored. Barrett, 158 Vt. at 18, 604 A.2d at 1280
(explaining that, in contrast, personal easements, or easements in gross,
are intended only to benefit the holder, and they are usually created for a
limited purpose and a limited duration); Scott v. Leonard, 119 Vt. 86, 98,
119 A.2d 681, 698 (1956) ("A construction that an easement is one
appurtenant rather than in gross is favored."). We reject plaintiffs'
assertions that the absence of the words of inheritance in the granting
clause controls the interpretation of the deed. See Kipp, 169 Vt. at 105,
732 A.2d at 130 ("Although we agree that in some cases according priority
to the granting clause over other deed language is appropriate, we stress
that such priority is only an aid to determining the intent of the grantor,
to be used along with other such aids."). We similarly reject plaintiffs'
assertion that the deed's imposition of an obligation on Brown to "put up
all bars in the lane" necessarily rendered the conveyance a personal
license. This phrase does not conclusively demonstrate that Brown had any
personal interest in securing a right-of-way distinct from his interest as
owner of the lot. See Leonard, 119 Vt. at 98, 119 A.2d at 698 ("[T]here
is nothing in the relation of the grantors to the grantee, to each other,
nor in the nature of the right in question, that shows it to be a mere
personal right or that it was so intended.").
¶ 13. As the trial court found, its interpretation of the deed gave
meaning to the word "appurtenances." We reject plaintiffs' suggestion that
we should give the term a different meaning from that identified by the
trial court. With no evidence that the easement was personal to Brown or
created for a limited purpose or duration, the intent of the parties to
convey a way of ingress and egress to Brown's land is accomplished in the
deed. Mindful that appurtenant easements are favored over easements in
gross, we note that the trial court's interpretation is also consistent
with the common understanding of the term "appurtenance." See Webster's
Ninth New Collegiate Dictionary 98 (9th ed. 1985) (defining "appurtenance"
as "an incidental right (as a right-of-way) attached to a principal
property right and passing in possession with it). When a term is
unambiguous, we give it its plain meaning. See, e.g., N. Sec. Ins. Co. v.
Perron, 172 Vt. 204, 209, 777 A.2d 151, 154 (2001) (Court gives disputed
terms their "plain, ordinary and popular meaning"). The trial court did
not err in finding that the deed established an appurtenant right-of-way.
¶ 14. Plaintiffs next argue that the trial court erred in
concluding that they had not established ouster. They assert that Bortz's
conduct was sufficiently hostile, pointing to evidence of a three-foot high
pile of rocks and dirt in the middle of the lane, a barbed wire fence at
the end of the lane, and Bortz's actions in personally preventing Higgins
from using the lane on several occasions. Plaintiffs also argue that the
trial court erred in requiring evidence of continuous "conduct" for a
period of fifteen years rather than evidence of continuous "possession" of
the right-of-way during that period.
¶ 15. We reject these arguments. To extinguish an easement held by
a dominant estate, a servient estate must establish an ouster, which
requires "open, notorious, continuous, hostile and adverse possession" of
an easement maintained for fifteen years; "[t]he possession must be
unequivocal and incompatible with possession and use by the dominant
owner." Percival v. Fletcher, 121 Vt. 291, 296, 155 A.2d 737, 740 (1959);
see also Okemo Mountain, Inc. v. Town of Ludlow, 164 Vt. 447, 452, 671 A.2d 1263, 1268 (1995) (same). To start the prescription period, the one
claiming ouster must show that it acted "clearly wrongful as to the owner
of the easement. Its use of the land must be incompatible or
irreconcilable with use of the easement." Okemo Mountain, Inc., 164 Vt. at
453, 671 A.2d at 1268 (citations and quotations omitted).
¶ 16. Use of the road by the servient owner during periods of
non-use by the dominant owner is not adverse use. Id. While an easement
may be extinguished by an abandonment, non-use alone will not suffice, no
matter how long continued. Lague, Inc. v. Royea, 152 Vt. 499, 503, 568 A.2d 357, 359 (1989); Nelson v. Bacon, 113 Vt. 161, 172, 32 A.2d 140, 146
(1943) (explaining that deeded easement-holder has same right of property
therein as owner of the fee and thus it is not necessary that he make use
of his right to maintain his title). "[T]o establish an abandonment there
must be, in addition to non user, acts by the owner of the dominant
tenement conclusively and unequivocally manifesting either a present intent
to relinquish the easement or a purpose inconsistent with its future
existence." Id.; see also Royea, 152 Vt. at 503, 568 A.2d at 359 (applying
same standard and recognizing that party claiming abandonment "bears a
heavy burden"). As we noted in Okemo Mountain, Inc., "it is difficult to
establish adverse possession of an easement where the dominant owner
abstains from using the easement." 164 Vt. at 453, 671 A.2d at 1268
(citing R. Powell & P. Rohan, 3 Powell on Real Property § 34.21, at
34-264-65 (1994)).
¶ 17. In this case, the trial court found that Bortz's construction
of a driveway, and the berm that resulted, were insufficient from an
objective standpoint to put Higgins on notice that Bortz was attempting to
oust Higgins from his easement. In a supplemental order, the court also
found that while there were instances in which Bortz blocked Higgins from
accessing the right-of-way between 1967 and 1975, it was not persuaded that
Bortz's conduct extended over fifteen continuous years. The court also
rejected plaintiffs' assertion that Bortz had installed what was now a
barbed wire pasture fence at the end of the disputed right-of-way or that
the fence had been in place for fifteen years prior to plaintiffs'
commencement of legal action.
¶ 18. Plaintiffs do not challenge the court's findings of fact.
Instead, they maintain that the facts as found do not support the court's
conclusion. More specifically, they assert that the trial court should not
have considered whether the right-of-way was accessible despite the berm
but rather whether the berm itself was sufficient to commence a ouster.
Plaintiffs also maintain that "there can be no doubt" that Bortz's actions
in preventing Higgins from using the lane constituted a hostile act.
¶ 19. We find plaintiffs' arguments without merit. In conducting
its analysis, the trial court properly considered whether the creation of
the berm demonstrated Bortz's unequivocal "possession" of the right-of-way
and whether it was "incompatible with possession and use by the dominant
owner." Percival, 121 Vt. at 296, 155 A.2d at 740. The court concluded
that the berm did not completely block access to the right-of-way and this
finding is supported by the record. We reject plaintiffs' assertion that
the trial court should have found the berm sufficient to commence the
ouster period even if it did not completely prevent use of the
right-of-way. In support of this argument, plaintiffs rely on Okemo
Mountain, Inc., 164 Vt. at 453, 671 A.2d at 1268 ("Less permanent
obstructions may be considered adverse where the dominant owner recognizes
the purpose is to prevent use of the easement."). Unlike the case on which
they rely, however, plaintiffs failed to show that Higgins ever recognized
that the purpose of the berm was to prevent his use of the right-of-way.
Indeed, it appears that the berm was merely a byproduct from the driveway
construction. The evidence that Bortz and Higgins had a long-standing
dispute over the right-of-way, and that Bortz occasionally blocked Higgins
from using the lane, does not show that the creation of the berm was a
hostile act intended to initiate an ouster. As to the barbed wire fence,
the trial court found that it had not been erected by Bortz, nor had it
been in place for the requisite time period. As noted, plaintiffs do not
challenge these findings.
¶ 20. Plaintiffs are left then with an assertion that Bortz's
personal confrontations with Higgins were sufficient to extinguish the
deeded easement. The trial court rejected this argument and its decision
is supported by the evidence. The personal confrontations between Higgins
and Bortz did not deprive Higgins of his ability to use the right-of-way
for the statutory fifteen-year period, nor did Bortz use the land in a way
that was incompatible or irreconcilable with the use of the easement. See
id. We need not decide, therefore, whether the trial court erred in
considering whether Bortz's "conduct" continued throughout the statutory
period rather than whether his "possession" of the property was continuous
throughout this period. To the extent that plaintiffs suggest that Bortz's
conduct caused Higgins to abandon the easement, the evidence does not
support their argument. While Higgins may not have used the easement, he
lawfully and physically could have, and plaintiffs have not established
that Higgins "conclusively and unequivocally" manifested a present intent
to relinquish the right-of-way. Nelson, 113 Vt. at 172, 32 A.2d at 146.
We find no error in the trial court's rejection of plaintiffs' claim that
the right-of-way was extinguished by their predecessor-in-title.
¶ 21. Finally, we turn to plaintiffs' assertion that the trial
court erred in concluding that the right-of-way could be used for
automobile travel. Plaintiffs argue that the language of the deed
"strongly suggests" that the easement was intended to serve as a lane for
cattle and other farm animals, and the use of automobiles on the lane falls
outside of the historical use of the right-of-way, and it should be
prohibited.
¶ 22. The trial court concluded that because there was no
limitation on the grantee's use of the right-of-way in the 1881 deed that
created it, none should be imported merely because, over time, horses had
been replaced by automobiles and cows by ATVs. The court's conclusion is
consistent with Vermont law and with the principle cited by plaintiffs that
a servient estate must use a right-of-way in a manner consistent with the
use contemplated at the time of its creation, and it may not use it in a
way that materially increases the burden on the servient estate. Greenberg
v. Hadwen, 145 Vt. 112, 116, 484 A.2d 916, 918 (1984). As the deed
reflects, and the trial court found, there was no expressed limitation on
how the right-of-way could be used at the time it was created.
¶ 23. In general, a dominant estate is entitled to use an easement
"in a manner that is reasonably necessary for the convenient enjoyment of
the servitude." Restatement (Third) Property, Servitudes § 4.10 (2000);
see also F.T. Chen, Annotation, Extent and Reasonableness of Use of Private
Way in Exercise of Easement Granted in General Terms, 3 A.L.R.3d 1256, 1284
(1965) (explaining that a right-of-way which is general and without
limitation in its terms "is generally held properly subjected to animal and
vehicular use, the theory being that such use, being necessary to the
reasonable and proper use and enjoyment of the dominant estate, was within
the contemplation of the parties") (collecting cases). We recognize that
"[t]he manner, frequency, and intensity of the use may change over time to
take advantage of developments in technology and to accommodate normal
development of the dominant estate or enterprise benefited by the
servitude." Restatement (Third) Property, Servitudes § 4.10 (2000)
(explaining that the policy underlying this rule is that "it permits
servitudes to retain their utility over time and probably reflects the
expectations of the parties who create servitudes of indefinite duration");
see also Skow v. Goforth, 618 N.W.2d 275-76, 278 (Iowa 2000) (deed that
granted "right-of-way to drive teams" over land "must be interpreted to
allow ingress and egress for modern vehicular traffic, including farm
tractors and implements"); Hodgkins v. Bianchini, 80 N.E.2d 464, 467 (Mass.
1948) (holding that grant of a "cart road" did not restrict use of easement
to horse-drawn vehicles but rather created a general right of way for
vehicles, and stating that "[w]e should be very slow to hold that even
ancient rights of way, not expressly restricted as to the type of vehicle .
. . could not be employed at all for the means of transportation in common
use by a succeeding generation") (quotation omitted). In addition to this
general principle, it is compelling that in this case the deed contained no
restriction as to use. See generally 3 A.L.R.3d at 1287 (explaining that
"[w]here the grant was not limited in its terms, it has usually been held
that the right of passage included the right to pass by automobile or motor
vehicle, even though such vehicles might not have been in use at the time
the easement was created") (collecting cases). The trial court did not err
in refusing to read a use restriction into the deed.
¶ 24. The cases cited by plaintiffs do not compel a contrary
result. Plaintiffs assert that, as in Greenberg, the historical use of the
easement should constitute its reasonable use. As discussed above,
however, the use of an easement can change over time to reflect modern
developments. Moreover, it is not clear that the discussion in Greenberg
on which plaintiffs rely involved an easement. In Greenberg, the Court was
asked to determine whether a landowner had wrongfully interfered with an
adjacent landowners' use of "land in common" by allowing large trucks to
obstruct the common area, which had historically been used for parking.
The trial court determined that the reasonable use of the property was for
parking and the plaintiffs did not challenge this finding on appeal.
Greenberg, 145 Vt. at 116, 484 A.2d at 918. We upheld the trial court's
conclusion that the plaintiff's use of the common land constituted "an
undue interference with the parties' reciprocal rights, as defined by the
parties' long usage." Id. We analogized to easements, and specifically,
the requirement that "no use may be made of [a] right of way, different
from that established at the time of its creation, so as to burden the
servient estate to a greater extent than was contemplated at the time of
the grant." Id. (citation omitted). In the instant case, as discussed
above, we agree with the trial court that the use of automobiles on the
right-of-way would not burden the estate to a greater extent than was
contemplated at the time of the grant. The purpose of the right-of-way was
to provide access to the land that lay beyond it, and the use of
automobiles to traverse the route is consistent with that purpose.
¶ 25. Plaintiffs' reliance on Dennis v. French, 135 Vt. 77, 80, 369 A.2d 1386, 1388 (1977), is equally unavailing. Plaintiffs assert that, as
in French, a departure from an easement's previous use unquestionably
constitutes an additional burden on the servient estate. The French case
involved the scope of a prescriptive easement, not an express easement, and
the use to which a prescriptive easement may be put necessarily depends on
past use. See id. ("The extent of the presumed right is determined by the
user, upon which is founded the presumed grant; the right granted being
only co-extensive with the right enjoyed."); see also Gutcheon v. Becton,
585 A.2d 818, 822 (Me. 1991) ("Unlike an express easement, whose terms can
usually be ascertained from the creating instrument, the permissible uses
of an easement acquired by prescription are necessarily defined by the use
of the servient land during the prescriptive period."). In French,
plaintiffs acquired a prescriptive right of user over a roadway for certain
discrete purposes based on their past use of the property. We concluded
that plaintiffs were not entitled to make a different use of the roadway
because it would increase the burden on the servient estate and it would
extend the right acquired by plaintiffs' prior use of the property.
French, 135 Vt. at 80, 369 A.2d at 1388. Thus, French does not support
plaintiffs' assertion that the reasonable use of the right-of-way at issue
here depends on its historical use. Cf. Nelson, 113 Vt. at 172, 32 A.2d at
146 (holding that one who possess deeded easement need not use the easement
to maintain his title, and easement cannot be extinguished from nonuser
alone). Moreover, as previously discussed, we agree with the trial court
that the use of automobiles on the lane is consistent with the easement's
purpose. We find no error in the trial court's interpretation of the deed.
Affirmed.
BY THE COURT:
_______________________________________
Paul L. Reiber, Chief Justice
_______________________________________
Denise R. Johnson, Associate Justice
_______________________________________
Marilyn S. Skoglund, Associate Justice
_______________________________________
Brian L. Burgess, Associate Justice
_______________________________________
Francis B. McCaffrey, District Judge,
Specially Assigned
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