State v. Preseault

Annotate this Case
STATE_V_PRESEAULT.93-607; 163 Vt 38; 652 A.2d 1001

[Filed 10-Nov-1994]

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. 93-607

State of Vermont, et al.                  Supreme Court

                                           On Appeal from
     v.                                    Chittenden Superior Court

J. Paul Preseault, et al.                 September Term, 1994

Matthew I. Katz, J.

Jeffrey L. Amestoy, Attorney General, and John K. Dunleavy, Assistant
 Attorney General,   Montpelier, for plaintiff-appellee State of Vermont 

John T. Leddy of McNeil, Leddy & Sheehan, Burlington, for plaintiff-appellee
 City of Burlington 

Paul R. Bowles of Hill, Unsworth, Barra & Myers, Montpelier, for defendant-

PRESENT:  Allen, C.J., Dooley, Morse and Johnson, JJ.

     DOOLEY, J.   Defendants J. Paul Preseault, Patricia Preseault, and 985
Associates, Ltd. appeal the decision of the Chittenden Superior Court
granting partial summary judgment to plaintiffs, the State of Vermont and the
City of Burlington.  Defendants also appeal the court's issuance of a
permanent injunction enjoining them from interfering or encroaching on
property currently maintained by plaintiffs.  We affirm. 

     This appeal represents another chapter in defendants' on-going attempt
to reclaim their purported reversionary interest in a railroad right-of-way
adjacent to their property in the City of Burlington.  In 1962, the State of
Vermont acquired the railroad right-of-way at issue from one railroad
company, and subsequently leased it to another.  In 1975, this company
discontinued rail service for the portion of track abutting defendants'
property, and removed all existing railroad equipment. 

     In 1981, defendants brought a quiet title action alleging that the
railroad company's 


easement had been abandoned, and title to the land in the right of way had
reverted back to them.  The trial court dismissed the action holding that the
matter was within the exclusive jurisdiction of the federal Interstate
Commerce Commission (ICC), and we affirmed.  Trustees of Diocese of Vermont
v. State, 145 Vt. 510, 496 A.2d 151 (1985). 

     Defendants next sought a certificate of abandonment from the ICC, but
pursuant to the National Trails System Act, the ICC approved an agreement
between the State and the City of Burlington to use the right-of-way as a
bicycle and pedestrian path.  See 16 U.S.C.  1247(d)(1988) (ICC given
authority to encourage preservation of railroad rights-of-way by establishing
interim recreational uses).  The ICC Chairperson denied defendants'
application for a stay pending review and their motion for reconsideration. 
They appealed to the United States Court of Appeals for the Second Circuit
arguing that the statute resulted in an unconstitutional taking, and that it
was not a valid exercise of Congress' Commerce Clause power.  Preseault v.
ICC, 853 F.2d 145, 149-50 (2d Cir. 1988).  The Second Circuit rejected these
arguments, id. at 150-51, and the United States Supreme Court affirmed,
although on different grounds. Preseault v. ICC, 494 U.S. 1, 19 (1990). 

     The Supreme Court held that the statute was a valid exercise of
congressional power under the Commerce Clause, and that it was unnecessary to
evaluate the merits of the takings claim because defendants failed to seek
compensation under the Tucker Act. Id. at 17, 19;  see 28 U.S.C. 
1491(a)(1) (providing jurisdiction to United States Court of Claims for
claims against the federal government to recover damages based on
constitutional, statutory, regulatory, or contractual claims).  Accordingly,
defendants filed a complaint against the United States in the Claims Court
seeking compensation for the alleged taking.  For reasons not relevant here,
the Claims Court dismissed defendants' claim, and they appealed to the Second
Circuit where they are still awaiting a decision. 

     In 1987, plaintiffs initiated the present trespass proceedings in state
court seeking damages and injunctive relief based on defendants' excavation
and removal of large amounts of 


soil from the railroad right-of-way maintained by the State and leased to the
City.  Following plaintiffs' waiver of their claim for money damages and
based on their motion for summary judgment, the Chittenden Superior Court
issued a final judgment for plaintiffs and granted a permanent injunction in
November 1993.  The court held that defendants' reversionary interest in the
right-of-way will vest when the ICC issues an unconditional certificate of
abandonment, and until then, plaintiffs have an exclusive possessory interest
in the right-of-way. 

     On appeal, defendants argue that the court erred by failing to address
the nature of the State's interest in the right-of-way, and by concluding
that plaintiffs' rights in the property were exclusive.  In addition,
defendants maintain that the superior court's final order was merely an
advisory opinion because the trespass issue was moot.   Defendants also
assert that the court's issuance of a permanent injunction was improper
because it failed to make any specific finding that defendants were engaged
in a continuing trespass.  Finally, defendants argue that the court exceeded
its authority by permanently enjoining defendants from entering upon the
right-of-way for any purpose.  We consider each argument in turn. 

     Defendants first argue that the superior court erred by failing to
determine whether the State's interest in the right-of-way was an easement or
a fee simple.  They assert that if this interest is merely an easement, then
plaintiffs' rights in the property are not exclusive, and defendants retain
the right to use the property in any way that does not interfere with the
easement.  We do not agree. 

     It is well settled under Vermont law that the holder of a railroad
easement enjoys the right to the exclusive occupancy of the land, and has the
right to exclude all concurrent occupancy in any mode and for any purpose.  
Connecticut & P. Rivers R.R. v. Holton,  32 Vt. 43, 47 (1859); Jackson v.
Rutland & B. R.R., 25 Vt. 150, 159 (1853).  Indeed, the right of a railroad
to the exclusive occupancy of a railroad easement is said to be virtually the
same as that of an owner in fee.  Jackson, 25 Vt. at 159.  Consequently,
whether the State has a fee simple or an easement is not relevant to
determine its rights. 


     Defendants further maintain that the State's interest in the
right-of-way is not exclusive because the scope of the interest depends on
the nature of the use.  In this case, defendants contend that plaintiffs do
not have the same rights as a railroad company because they are not operating
a railroad; they are operating a bicycle and pedestrian path.   Therefore,
defendants argue that although their excavation activities would likely
intrude upon railway service, it presents no threat or danger to a bicycle
and pedestrian path. 

     This argument fails, however, because it does not consider the effect of
the National Trails System Act.  The unambiguous purpose of this legislation
is not only to provide recreational trails, but to preserve established
railroad rights-of-way for future reactivation of rail service.  See 16
U.S.C.  1247(d) (ICC Chairman shall encourage states to establish
recreational trails "in furtherance of the national policy to preserve
established railroad rights-of- way for future reactivation of rail
service");  see also Preseault v. ICC, 494 U.S.  at 6.   To construe the
State's interest in the right-of-way as less than the interest of an
operating railroad creates the risk of frustrating Congress' clear intent and
purpose.  The fact that defendants' excavation activities do not present a
threat to the bicycle and pedestrian path is irrelevant because these
activities impinge upon the original railroad easement.   Consequently, the
superior court did not err by concluding that the plaintiffs' rights in the
property were exclusive. 

     Defendants' second argument contends that the superior court's final
order was merely an advisory opinion because the trespass issue was moot.  In
support of this argument, defendants note that the excavation occurred only
once, and that there was no evidence that they had engaged in any further
wrongful conduct.  As a result, defendants contend, a live controversy no
longer exists.  We disagree. 

     The underlying rationale of the mootness doctrine is that a case becomes
moot "when the issues presented are no longer `live' or the parties lack a
legally cognizable interest in the outcome."  In re S.H., 141 Vt. 278, 280,
448 A.2d 148, 149 (1982) (quoting United States Parole Commission v.
Geraghty, 445 U.S. 388, 396 (1980)).  Furthermore, the parties' stake 


in the litigation must continue throughout its entirety, not merely exist at
the time the complaint is filed.  Winton v. Johnson & Dix Fuel Corp., 147 Vt.
236, 239, 515 A.2d 371, 373 (1986); 

     This case still presents a live and justiciable controversy.  Defendants
continue to insist that they have a current interest in the right-of-way as
long as they do not interfere with the operation of the bicycle and
pedestrian path.  They continue to vigorously defend their asserted right to
engage in excavation or other similar activities in the future.  Defendants
have not relinquished their claims to the property, and therefore, they
continue to have a real stake in the litigation.   As a result, the superior
court's final order cannot be construed as an advisory opinion. 

     Defendants also argue that the superior court's issuance of a permanent
injunction was improper because it failed to specifically find that the
defendants' excavation interfered with the plaintiffs' use and enjoyment of
the property, and that even if it did, one instance of encroachment does not
rise to the level of a continuing trespass.  Regarding the court's failure to
find that defendants interfered with plaintiffs' property, defendants'
original answer to plaintiffs' complaint specifically admitted that
excavation had occurred and that a substantial number of cubic yards of earth
had been removed.  Accordingly, the court's conclusions are fully supported
by the entire record. 

     We are also unpersuaded that one instance of encroachment does not equal
a continuing trespass.   Vermont law is clear that even the threat of
continuous trespass entitles a party to injunctive relief.  See, e.g.,
Barrell v. Renehan, 114 Vt. 23, 25, 39 A.2d 330, 332 (1944) (permanent
injunction appropriate if trespass is threatened); Kasuba v. Graves, 109 Vt.
191, 199, 194 A. 455, 458 (1937) (equity will not refuse relief where a
trespass is likely to be continued under a claim of right). 

     In this case, permanent injunctive relief is appropriate because
defendants refuse to relinquish their claims to the property.  They continue
to maintain that they have the right to use the right-of-way in any manner
not inconsistent with the bicycle and pedestrian path.  These 


claims are tantamount to an ongoing threat to encroach upon the right-of-way,
and therefore, the superior court's permanent injunction order was entirely

     Finally, defendants argue that the superior court exceeded its authority
by permanently enjoining them from entering the right-of-way for any purpose.
Defendants construe the court's order as precluding them from enjoying even
the recreational pleasures of the bicycle and pedestrian path.  Although we
agree that the superior court's final order was broadly worded, we do not
interpret this order as broadly as defendants.  The final order enjoins
defendants from interfering with the present use and enjoyment of the subject
property; it does not prohibit them from using the property in the same
manner as any other member of the general public. 


                              FOR THE COURT:

                              Associate  Justice