Barrett v. King

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                                 No. 90-279


 Edward Barrett                               Supreme Court
 and Virginia Shields
                                              On Appeal from
      v.                                      Orange Superior Court

 Ernest W. and Marion C. Kunz                 November Term, 1991



 David A. Jenkins, J.

 Richard A. Cawley, Bradford, for plaintiffs-appellees

 Edwin W. Free, Jr. of Richard E. Davis Associates, Inc., Barre, for
   defendants-appellants



 PRESENT:  Gibson, Dooley, Morse and Johnson, JJ.



      JOHNSON, J.   This is a dispute between adjoining landowners over the
 nature and extent of a right-of-way that provides access over defendants'
 property to plaintiffs' property.
      Plaintiffs acquired a vacation home on a 104-acre parcel of land in
 Topsham, Vermont, from Robert Armstrong and Hollis Ewing, by warranty deed
 dated May 24, 1988.  Plaintiffs' property is virtually inaccessible without
 the use of an old road that crosses defendants' parcel.  The existence of
 the road predated plaintiffs' purchase.  Predecessors in title had also used
 this road to reach the property, and, in fact, townspeople and others had
 used the road for various recreational purposes for many years.  The deed
 conveyed to plaintiffs the 104-acre parcel and "all privileges and
 appurtenances thereof," but it did not specifically mention the right-of-
 way.  Nor was the right-of-way specified by the previous grantors, Barent
 and Constance Stryker, in the deed to Armstrong and Ewing, although the road
 was in existence on the date Armstrong and Ewing acquired the parcel, with
 all privileges and appurtenances, in 1973.
      Defendants acquired the deed to their land in 1987, also from the
 Strykers.  Defendants' chain of title shows the existence of a right-of-way
 reserved by the Strykers in a deed from them to Marcus and Janet McCorison
 on April 8, 1952.  The Strykers were farmers and used what they referred to
 as a "farm road" to gain access to the 104-acre parcel that plaintiffs now
 own.  Because the farm road went across the lands being conveyed to the
 McCorisons, the deed specified "a right-of-way across the northwest of said
 buildings which served as a farm road for [the] past several years."  The
 Strykers later repurchased the land and conveyed it to Louise Forrest in
 1961, with the same reservation repeated.  In 1969, the Strykers stopped
 farming.  The Strykers again repurchased the land from Louise Forrest and
 then conveyed it to defendants in 1987, but without the language that had
 appeared in the earlier deeds to McCorison and Forrest.
      In 1988, shortly after plaintiffs purchased their land, defendants
 constructed a barrier across the old farm road to prevent plaintiffs from
 using it to gain access to their land.  This suit followed.
      The trial court held that the easement relating to the road was not
 personal to the Strykers, but was intended to benefit the land, and that the
 use of it was general and not limited to farm purposes.  It also found that
 the Strykers had not abandoned the easement when they stopped farming, but
 that the predominant use of the road had changed.  Therefore, the court held
 the plaintiffs had an ownership interest in the right-of-way and enjoined
 defendants from obstructing it.
      On appeal, defendant raises two claims -- that the trial court erred by
 concluding that a right-of-way reserved by the original owners of the
 property was appurtenant, and not personal to them; and that the court's
 finding that the right-of-way was reserved for general use was unsupported
 by the evidence and unlawfully imposed an increased burden on defendants'
 property.  We reject these claims and affirm.
                                     I.
      The thrust of defendants' first argument is that no specific language
 in plaintiffs' deed gives them a right-of-way across defendants' land, and
 that the language mentioning a right-of-way in defendants' chain of title
 created a personal easement that was not conveyed as an appurtenance to
 plaintiffs' parcel.
      Appurtenant easements serve a parcel of land, rather than a particular
 person.  R. Cunningham, W. Stoebuck & D. Whitman, The Law of Property { 8.2,
 at 440 (1984).  The land benefited by the easement is known as the dominant
 tenement, and the land burdened by it is the servient tenement.  Id.
 Although the owner of an appurtenant easement may be said to benefit person-
 ally by its use, the benefit lasts only as long as the owner owns the land,
 and when conveyed, it passes to a new owner.  Scott v. Leonard, 119 Vt. 86,
 98, 119 A.2d 691, 698 (1956); Nelson v. Bacon, 113 Vt. 161, 169, 32 A.2d 140, 145 (l943).  Thus, an appurtenant easement passes with subsequent
 conveyances, even if the specific language of the right-of-way is not
 repeated.  Russell v. Pare, 132 Vt. 397, 407, 321 A.2d 77, 84 (1974)
 overruled, in part, on other grounds, LaGue, Inc. v. Royea, 152 Vt. 499,
 502-03, 568 A.2d 357, 359 (1989); Sabins v. McAllister, 116 Vt. 302, 306, 76 A.2d 106, 108 (1950) overruled, in part, on other grounds, Lague, Inc. v.
 Royea, 152 Vt. 499, 502-03, 568 A.2d 357, 359 (1989).
      By contrast, personal easements, or easements in gross, are intended to
 benefit only the holder.  Usually, they are created for a limited purpose
 and a limited duration.  Because a personal easement exists apart from a
 holder's ownership of land, there is no dominant tenement, and the easement
 expires when the property is conveyed unless specifically reserved.  R.
 Cunningham, W. Stoebuck, & D. Whitman, supra, at 440.  Personal easements
 are typically those held by utility companies, which give them access to
 land to erect poles and lines, but they hold no dominant estate.  Id.
      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.  Griffith v. Nielsen, 141 Vt. 423, 428, 449 A.2d 965, 968 (1982)
 (right-of-way reserved by grantor, her heirs and assigns, was passed on to
 subsequent grantees); Hunsdon v. Farrar, 128 Vt. 410, 415-416, 264 A.2d 809,
 813 (1970) (circumstances surrounding right-of-way reserved by deed
 established appurtenant easement); Sabins, 116 Vt. at 305, 76 A.2d  at 108
 (right to use driveway established by deed of common grantor was a benefit
 to the land, not a specific grantor).
        In the instant case, the question depends on the character of the
 easement in defendants' chain of title, first reserved by the Strykers in
 the deeds to the McCorisons in 1952, and to Louise Forrest in 1961, while
 the Strykers still owned the 104-acre parcel now owned by plaintiffs.  Both
 deeds specified "a right-of-way across the northwest of said buildings which
 served as a farm road for [the] past several years."
      Although the language of the deed is somewhat ambiguous, in that "farm
 road" may be interpreted as words of description or words of limitation,
 the circumstances surrounding the use of the road lead to the conclusion
 that the use was not limited.  The right-of-way was used for access to the
 104-acre parcel for agricultural purposes and logging by the Strykers, and,
 at all material times, for recreational purposes by the general public.
 Although the Strykers ceased farming in 1969, the public continued to use
 the road for hiking, snowmobiling, skiing, hunting and horseback riding.
 The trial court found that it was known in the community that the public was
 permitted to use the road.
      In view of the surrounding circumstances, it is apparent that the
 right-of-way was intended to benefit the land, by allowing the owners and
 the public to make use of it for a variety of purposes.  It benefited the
 Strykers only as long as they owned the dominant estate.  When their owner-
 ship ceased, they had no personal interest in the right-of-way that was
 separate and distinct from their ownership of the 104-acre parcel.  Thus,
 when the Strykers conveyed the land to Armstrong and Ewing in 1973, the
 right-of-way was conveyed by the deed.  Russell, 132 Vt. at 407, 321 A.2d  at
 84; see also Crabbe v. Veve Assoc., 150 Vt. 53, 57, 549 A.2d 1045, 1048
 (1988) (rule regarding extinguishment by cessation of purpose should be
 applied only if easement is qualified by express limitations in deed).
      Defendants also contend that the right-of-way was abandoned by the
 Strykers when they stopped farming, and, therefore, non-use extinguished it
 prior to the conveyance to Armstrong and Ewing.  In LaGue, 152 Vt. at 503,
 568 A.2d  at 359, we held that the burden on a party claiming abandonment of
 an easement is a heavy one.  "Such an abandonment may be established only by
 '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. (quoting Nelson, 113 Vt. at
 172, 32 A.2d at 146).  Here, the trial court found there were no acts by the
 Strykers indicating their intent to abandon the easement.  When they ceased
 farming, the predominant use of the easement changed from agricultural to
 recreational, but this did not manifest any purpose inconsistent with the
 future existence of the easement.  Rather, it confirmed its purpose.
      Finally, defendants claim that the right-of-way was a "reservation"
 without words of inheritance, which could not pass to subsequent grantees.
 Because the easement had been in existence for many years at the time it was
 specifically mentioned in the deed to defendants' immediate predecessor in
 title, Louise Forrest, it was an "exception," rather than a reservation, and
 did not require any formal words of inheritance for conveyance.  Sheldon
 Slate Products Co. v. Kurjiaka, 124 Vt. 261, 266-67, 204 A.2d 99, 103
 (1964).
                                    II.
      In view of our holding on the nature of the right-of-way, and our
 discussion of its general use, defendants' argument that the trial court
 impermissibly burdened the servient estate by expanding the use of the
 easement from farm purposes to general purposes requires little discussion.
 The trial court's findings on the history of use of the right-of-way by the
 public are well supported by the record, and are not clearly erroneous.
 V.R.C.P. 52(a); Harte v. Town of Bennington, 153 Vt. 256, 259, 571 A.2d 53,
 54 (1989).   The trial court did not recognize any use that went beyond the
 evidence, and the servient estate was not impermissibly burdened.
      Affirmed.



                                         FOR THE COURT:



                                         _________________________________
                                         Associate Justice