Fletcher v. Ferry

Fletcher v. Ferry (2005-295)

2007 VT 8

[Filed 02-Feb-2007]


       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.


                                  2007 VT 8

                                No. 2005-295


  Howard Fletcher                                Supreme Court

                                                 On Appeal from
       v.                                        Washington Superior Court


  Henry W. Ferry                                 September Term, 2006


  Mary Miles Teachout, J.

  Edward M. Kenney of Roesler, Whittlesey, Meekins & Amidon, Burlington, for 
    Plaintiff-Appellee.

  Paul S. Gillies of Tarrant, Marks & Gillies, Montpelier, for
    Defendant-Appellant.


  PRESENT:  Reiber, C.J., Johnson, Skoglund and Burgess, JJ., and 
            Crawford, Supr. J.,  Specially Assigned

        
       ¶  1.  JOHNSON, J.   The case before us arose out of a dispute over
  a right-of-way that defendant Ferry claims over plaintiff Fletcher's
  property.  Both parties are unhappy with the trial court's decision. 
  Defendant appeals the location of the right-of-way, as found by the court,
  and plaintiff cross-appeals, contending the right-of-way was extinguished
  by merger.  We agree with plaintiff that the trial court erred in failing
  to find that common ownership in the chain of title eliminated the
  right-of-way, despite the common owner's acquisition of one of the parcels
  by intestate succession, and his failure to probate the estates of his
  parents.  We therefore reverse.  In view of our holding, it is unnecessary
  to reach the issues raised by defendant's appeal. (FN1)
          
       ¶  2.  The dispute between the present owners began in June 2000, when
  defendant wrote a letter to plaintiff advising that he planned to use a
  right-of-way conveyed for the benefit of his land, known as the Scribner
  woodlot, across plaintiff's land, the Fletcher parcel.  Plaintiff refused
  to recognize the existence of a right-of-way, as it was not indicated in
  the deed to his property.  While the right-of-way described in defendant's
  deed was by that point no longer a visible path, in 2001, defendant drove a
  small tractor across the Fletcher parcel along the course that he believed
  was the route of the original easement. 
   
       ¶  3.  As a result, the dispute ripened into a lawsuit in July 2001
  when plaintiff filed a complaint in the Washington Superior Court,
  disputing defendant's right to cross his land, and seeking declaratory and
  injunctive relief and damages for trespass as well as punitive damages.  In
  count seven of his complaint, plaintiff alleged that any easement across
  his property was extinguished in January 1972, when the two parcels came
  into the common ownership of Franklin Scribner, one of their predecessors
  in title.  The trial court rejected plaintiff's merger-doctrine theory and
  concluded that defendant held an easement across the Fletcher parcel for
  access to the Scribner woodlot.  In its conclusions of law, the court held
  that plaintiff failed to show that Franklin  intended to merge the parcels
  in 1972, and that intent was necessary for the merger doctrine to take
  effect.  Furthermore, the court determined that the right-of-way was not
  extinguished because the estates were not probated and therefore, given the
  possibility that there may have been creditors of the estates, Franklin
  could not be said to have acquired the full legal title necessary for
  merger to take place by operation of law.   

       ¶  4.  Plaintiff claims on appeal that the title history shows unity
  of ownership and possession in Franklin in 1972, thereby extinguishing the
  easement as a matter of law; that the trial court erred in holding that
  intent to merge parcels in common ownership is a prerequisite to merger;
  and that plaintiff's failure to prove that there were no creditors who may
  have had claims against the unprobated estates did not deprive Franklin of
  the quality of title necessary for the merger doctrine to operate.  

       ¶  5.  Under the common-law merger doctrine, an easement ceases to
  exist when the dominant and servient estates come into common ownership. 
  Capital Candy Co. v. Savard, 135 Vt. 14, 15, 369 A.2d 1363, 1365 (1976); R.
  Powell, 4 Powell on Real Property § 34.22[1], at 34-203  (M. Wolf ed.
  2005).  "When the burdens and benefits [of an easement] are united in a
  single person . . . the servitude ceases to serve any function.  Because no
  one else has an interest in enforcing the servitude, the servitude
  terminates."  Restatement (Third) of Property (Servitudes) § 7.5 cmt. a
  (2000).   Merger occurs by operation of law. 
   
       ¶  6.  A review of the title history, as found by the trial court,
  shows that Franklin acquired his interest in the Scribner woodlot, the
  dominant estate, in May 1966 when his mother, Ellen Scribner, died.  She
  was the sole owner of the Scribner woodlot, and her only living heirs were
  her husband, Charles, and son, Franklin.   Ellen's estate was not
  immediately probated and Charles and Franklin succeeded to the property as
  tenants in common by the laws of intestate succession.  Upon Charles's
  death in 1972, Franklin became sole owner of the Scribner Woodlot in fee
  simple by the laws of descent and distribution.  Formal title to the
  Scribner woodlot, however, remained in Ellen's name until Franklin finally
  probated her estate in 1974.  Franklin became the sole owner in fee simple
  of the Fletcher parcel, the servient estate, when his father died in
  January 1972.  Father and son had held the Fletcher parcel as joint tenants
  with rights of survivorship.  Thus, in 1972, Franklin came into sole
  ownership of both the dominant and servient estates.  The property remained
  in the common ownership and possession of Franklin until May 1973 when he
  added his son and wife to the Fletcher parcel's title as joint tenants.
   
       ¶  7.  In denying that merger occurred in 1972, two issues were
  significant to the trial court.  The first was that plaintiff failed to
  show that Franklin intended that the parcels be merged in 1972.   We have
  not previously held that intent to merge is required, however, and we
  decline to do so now.  The trial court relied on dicta from an Illinois
  intermediate appellate court that stated that "[t]he merger of estates is a
  question of intent."  Ellis v. McClung, 683 N.E.2d 911, 918 (Ill. App. Ct.
  1997).  The Illinois court, however, appears to have confused merger in the
  context of termination of an easement with termination of a mortgage
  interest.  The Illinois court erroneously relied on Chicago Title & Trust
  Co. v. Wolchinovesky, which dealt with merger related to mortgages, for its
  conclusion that intent is necessary for merger to extinguish an easement. 
  61 N.E.2d 264, 266 (Ill. App. Ct. 1945).  In the mortgage context, intent
  is a factor in determining whether merger of estates has occurred because
  operation of the doctrine may unjustly harm  a first mortgagee and unfairly
  elevate a junior one to senior status.  Salazar v. Terry, 911 P.2d 1086,
  1092 (Colo. 1996); 12 Thompson on Real Property  § 101.03(e), at 383
  (Thomas ed.1994) (if merger is applied where a first mortgagee has accepted
  "a deed in lieu of foreclosure while a junior mortgage is outstanding. . .
  . the first mortgagee would be deemed an owner subject to one mortgage
  which was formerly a second mortgage," potentially unjustly enriching the
  junior mortgagee).  "Unity of ownership should not always destroy the
  existence of a mortgage when other interests are dependent on it." 
  Salazar, 911 P.2d  at 1092.  None of these considerations apply in the
  easement context where the right-of-way is extinguished because, as
  explained in the Restatement, supra, ¶ 5, there is no longer a need for
  it.  No other person's interest was affected or foreclosed by merger in
  this context, so there was no need on the part of plaintiff to prove that
  Franklin intended to merge the Fletcher parcel with the Scribner woodlot.

       ¶  8.  The second issue of concern to the trial court was the quality
  of Franklin's title.  The trial court made much of the fact that Franklin
  did nothing to put title to the Scribner woodlot in his name, and that
  "prior to the Decrees of Distribution in the Estates of Ellen Scribner and
  Charles Scribner, the Scribner woodlot was subject to claims of creditors." 
  We cannot agree with the trial court that either of these concerns had any
  bearing on whether the merger doctrine should extinguish the right-of-way
  in this case.   Franklin was the owner of the Scribner woodlot because the
  property  passed to him by the laws of descent and distribution upon
  Ellen's and Charles's deaths.   An heir's rights and title to property "do
  not originate in the decree of distribution, but are derived from the
  decedent . . . under the statute of distribution." In re Callahan's Estate,
  115 Vt. 128, 135, 52 A.2d 880, 884 (1947).  Legal title to real property
  vests in heirs immediately at death, subject only to liens and legally
  enforceable debts.  Lysak v. Grull, 174 Vt. 523, 525, 812 A.2d 840, 843
  (2002) (mem.); In re Estate of Bettis, 133 Vt. 310, 313, 340 A.2d 57, 59
  (1975).  
   
       ¶  9.  Although we have held "a distributee has no right of action
  to compel delivery to him of title or possession of such property until it
  has  been determined that, after the payment of debts due from the estate
  and all other legal charges against it, there remains property for
  distribution," this principle is not violated by recognition of the merger
  of estates here.  First, no creditors were in evidence, and the trial court
  erred in requiring plaintiff to prove their nonexistence.  Although the
  estates were not probated for several years after Ellen's and Charles's
  deaths, no creditor acted to open an estate for either Ellen or Charles
  because their descendants eventually probated the estates.  See 14 V.S.A. §
  903(2) (stating that if a person dies intestate, administration of the
  estate "may be granted to one or more of the principal creditors").  We can
  infer from these facts that no substantial creditors existed.  Second, the
  operation of the merger doctrine and the consequent elimination of an
  easement connecting the two parcels could not affect any general creditor's
  interest in any event.  Whether or not the parcels were merged, general
  creditors have only a monetary interest in the property comprising a
  debtor's estate, both real and personal, and not the sort of real property
  interest like a mortgage that could be diminished by the elimination of a
  right-of-way.

       ¶  10.  In short, as of January 1972, Franklin was the only person who
  had a property right to the Fletcher parcel and Scribner woodlot.  Although
  formal title to the Scribner woodlot was not decreed in him until after his
  death, no other person could or did lay claim to the parcel.  Thus, the
  utility of the right-of-way disappeared because Franklin was the only
  individual with an interest in accessing the Scribner woodlot through the
  Fletcher parcel, and he could lawfully do so without the easement, as he
  owned the Fletcher parcel in fee simple.  
   
       ¶  11.  Once a right-of-way has been extinguished by merger, it
  "[can]not be re-created by the mere subsequent separation of the parcels." 
  Capital Candy, 135 Vt. at 16, 369 A.2d  at 1365.  Although defendant's deed
  to the Scribner woodlot purported to convey the right-of-way to him over
  the Fletcher parcel, the easement was extinguished by merger and no longer
  existed in plaintiff's chain of title.  As the Scribner woodlot was not
  landlocked, the easement was not revived by necessity, and no one in
  plaintiff's chain of title recreated the easement by reservation or grant. 
  See Id. (where right-of-way is extinguished, it can only be recreated by
  "proper new grant or reservation").  Therefore, defendant has no legally
  cognizable interest in crossing the Fletcher parcel.  

       Reversed.    

                                       FOR THE COURT:



                                       _______________________________________
                                       Associate Justice


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

FN1.  Defendant argued on appeal that the trial court's placement of the
  easement partly through a wetland buffer zone is inconvenient,
  unreasonable, and inaccessible.  Defendant failed, however, to address
  plaintiff's extinguishment-by-merger argument, as he erroneously believed
  that plaintiff had not timely filed his cross-appeal.