Okemo Mountain v. Town of Ludlow Zoning Board

OKEMO_MTN_V_TOWN_OF_LUDLOW_ZONING_BD.94-331; 164 Vt 447; 671 A.2d 1263

[Filed 15-Dec-1995]


       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. 94-331


Okemo Mountain, Inc. and Vermont                  Supreme Court
Department of Forests, Parks and
Recreation
                                                  On Appeal from
    v.                                            Windsor Superior Court

Town of Ludlow Zoning Board of
Adjustment, John Lysobey, et al.                  June Term, 1995



John P. Meaker, J.

       Richard H. Coutant of Salmon & Nostrand, Bellows Falls, for
  plaintiff-appellee Okemo Mountain, Inc.

       Jeffrey L. Amestoy, Attorney General, and Conrad W. Smith, Assistant
  Attorney General, Montpelier, for plaintiff-appellee Department of Forests,
  Parks & Recreation

       John Lysobey, pro se, Ludlow, intervenor-appellant


PRESENT:  Allen, C.J., Gibson, Morse and Johnson,(FN1) JJ.



       GIBSON, J.     Landowners John and Christine Lysobey and Wayne and
  Beverly Lysobey appeal from a superior court summary judgment, which held
  in favor of plaintiff Okemo Mountain, Inc. (Okemo) that the Lysobeys do not
  have public road frontage or access by easement to a public road, as
  required under zoning regulations of the Town of Ludlow in order to develop
  land.  The Lysobeys maintain that the court erred in concluding that (1)
  any easement the Lysobeys or their predecessors-in-interest may have had
  over Okemo Mountain Road has been extinguished by adverse possession, and
  (2) Okemo Mountain Road is not a public road under the Town's zoning
  regulation § 610.3 and 24 V.S.A. § 4406(2).(FN2)  We reverse.

 

       In 1986, the Lysobeys purchased thirty-four acres on Okemo Mountain in
  Ludlow, Vermont, adjacent to Okemo State Forest.  Access to the property is
  via Okemo Mountain Road, which begins at Route 103 and proceeds up Okemo
  Mountain passing through land owned by Okemo and then through Okemo State
  Forest.  The Lysobeys' land was once owned by Herbert E. Walker, who
  acquired the property by quitclaim deed dated August 1, 1922.

       During the summer of 1935, the State of Vermont acquired rights-of-way
  across privately owned land to construct Okemo Mountain Road.  Walker was
  one of the landowners who conveyed a right-of-way to the State.  By
  quitclaim deed dated September 23, 1935, Walker conveyed to the State
  "exclusive use and control of a strip of land four (4) rods wide" across
  his land, conforming to the proposed Okemo Mountain Road surveyed and
  marked on the land. Walker reserved rights to all wood cut on the strip and
  "the right to pass and repass over said strip of land above described and
  any other like strips of land" lower down on the mountain and "the road to
  be constructed thereon."  The State subsequently constructed Okemo Mountain
  Road.

       In 1940, Walker quitclaimed to the State of Vermont a 1.75-acre parcel
  of land, which included almost all the land Walker owned over which the
  road passed.  Two small sections of the road, less than one-quarter the
  width of the road, were not conveyed.  The 1940 quitclaim deed states:  "I,
  Herbert E. Walker . . . have REMISED, RELEASED, AND FOREVER QUIT-CLAIMED
  unto the said State of Vermont, all right and title which I, the said
  Herbert E. Walker or my heirs have in, and to a certain piece of land in
  Ludlow . . . ."  It further states that "Herbert E. Walker will have anc
  [sic] claim no right in or to the said quit-claimed premises."

       In 1956, Okemo began operating a ski area on Okemo Mountain.  Access
  to the base lodge at the ski area is via Okemo Mountain Road.  The road
  above the lodge has not been maintained for vehicular traffic during the
  winter, but has been used as a ski trail.  This upper

 

  section of the road is on land owned by the State of Vermont, except for
  the small sections noted above that were not conveyed to the State in 1940. 
  The road is regulated by the Department of Forests, Parks and Recreation
  (Department), which currently classifies the road as a State Forest
  Highway, "Class B," a paved or unpaved State Forest Highway that is
  generally open to the public, but may be closed at certain times of the
  year, restricting public access.  The Department does not consider Okemo
  Mountain Road a public highway, although it is open for public use from
  mid-May through the end of October.

       In 1963, the Department leased to Okemo part of Okemo State Forest to
  develop and operate a ski area.  The lease purported to give Okemo
  authority to restrict adjoining landowners from use of the roads and other
  leased premises.  The Department and Okemo entered into a new lease for ski
  area development on Okemo Mountain in 1975.  The parties  dispute whether
  the lease agreement has been continuous since 1963.

       In October 1988, the Lysobeys applied for a permit to build a
  residential home on their land adjacent to Okemo State Forest and accessed
  via the section of Okemo Mountain Road above the base lodge.  The zoning
  administrator approved the permit application, and Okemo filed a notice of
  appeal with the Ludlow Zoning Board of Adjustment, challenging the
  Lysobeys' right to pass over Okemo Mountain Road to their property.  Under
  Ludlow's zoning regulations, "No land development may be permitted on lots
  which do not either have frontage on a public road or public waters or,
  with the approval of the Planning Commission, access to such a road or
  waters by a permanent easement or right-of-way (at least 20 feet in
  width)."  Town of Ludlow, Vermont, Zoning and Flood Hazard Regulations §
  610.3 (Mar. 6, 1990).  Following hearings, the Board affirmed the decision
  of the zoning administrator, concluding that the Lysobeys have a
  right-of-way over Okemo Mountain Road above the base lodge and that it
  provides access to a public road.

       Okemo and the Department appealed the decision of the Zoning Board to
  the superior court.  Subsequently, the zoning administrator granted the
  Lysobeys a second permit to construct decks and a generator house on the
  land; this permit was also affirmed by the Zoning Board and

 

  appealed to superior court.  The Lysobeys intervened in the two appeals and
  filed a cross-complaint for declaratory and injunctive relief, requesting
  (1) a declaration of the rights of the parties to use of Okemo Mountain
  Road, and (2) an injunction preventing Okemo and the Department from
  interfering with the Lysobeys' right to use the road.

       Addressing cross-motions for summary judgment, the superior court
  reversed the decision of the Zoning Board of Adjustment.  The court
  concluded that any year-round right-of-way that may have existed
  appurtenant to the Lysobeys' land was extinguished by adverse possession in
  1978, fifteen years after the Department first leased to Okemo the right to
  control access to upper Okemo Mountain Road.  The court further concluded
  that Okemo Mountain Road was not a public road under the Town zoning
  regulation § 610.3.  Accordingly, it held that the Lysobeys' land does not
  have frontage on a public road or access to a public road by a permanent
  easement.  The Lysobeys appeal.

                                     I.

       In reviewing an appeal from a summary judgment, we apply the same
  standard as the superior court.  "To prevail on a motion for summary
  judgment, the moving party must show that there are no genuine issues of
  material fact and that the moving party is entitled to judgment as a matter
  of law."  Palmer v. Bennington Sch. Dist., 159 Vt. 31, 35, 615 A.2d 498,
  500 (1992).

       We begin by examining the nature of the right reserved by Walker in
  1935, an issue the trial court did not reach.  A reservation is a clause in
  a deed by which the grantor retains one or more rights in the estate
  granted.  See Lincoln Sav. and Loan Ass'n v. State, 768 P.2d 733, 735
  (Colo. Ct. App. 1988).  It lessens the grant from what it would be without
  the reservation. Miller v. Lapham, 44 Vt. 416, 434-35 (1872); see also
  Smith's Ex'r v. Jones, 86 Vt. 258, 260, 84 A. 866, 867 (1912) (to reserve
  is to retain, keep back, withhold from operation of grant). Thus, only
  rights held by the grantor at the time of the conveyance may be reserved in
  a deed. Boudreau v. Coleman, 564 N.E.2d 1, 6 (Mass. App. Ct. 1990).

       The 1935 deed granted the State exclusive use and control of a strip
  of Walker's land to

 


       construct Okemo Mountain Road and reserved to Walker a right-of-way
  over the section of the road on this strip of his land.(FN3)  The deed also
  attempted to reserve a right-of-way over portions of Okemo Mountain Road
  below his land, where the State had obtained similar rights of use in order
  to construct Okemo Mountain Road.  Walker could not reserve rights,
  however, that he did not already have, nor could the State create an
  easement across its land merely by accepting Walker's deed.  Thus, the
  issue is whether Walker had an easement over lower parts of the mountain at
  the time he granted the deed to the State in 1935.

       In support of its motion for summary judgment, Okemo presented the
  affidavit of its attorney, stating that none of the deeds in the chain of
  title to the Lysobey land contains any reference to an access easement or
  right-of-way over adjacent properties.  The Lysobeys pointed out that the
  Walker deed did indeed reference such an easement, as did the deeds of
  other landowners who granted the State similar easement rights to build
  Okemo Mountain Road.  To construe a deed, we look first at the language of
  the instrument because we presume it declares the intent of the parties. 
  Withington v. Derrick, 153 Vt. 598, 603, 572 A.2d 912, 914 (1990). It is
  reasonable to infer from these deeds that the landowners intended these
  deeds to reserve a right-of-way to access their lands.  Because the deeds
  are ineffective to grant such a right-of-way to the landowners, we presume
  that the landowners intended to retain a right that they believed that they
  already had.  The use of the word "reserve" also supports this
  interpretation.

       To ascertain the intention of the parties, it is also proper to
  consider the circumstances existing at the time the deed was made.  Sheldon
  Slate Prods. v. Kurjiaka, 124 Vt. 261, 267, 204 A.2d 99, 103 (1964).  The
  Lysobeys presented maps indicating that a roadway going up Okemo Mountain
  existed prior to the State constructing Okemo Mountain Road and newspaper

 

  articles indicating that the Okemo Mountain ski run has existed since at
  least 1938.  Cf. Barrett v. Kunz, 158 Vt. 15, 20, 604 A.2d 1278, 1281
  (1992) (public use of easement for recreational purposes defeats claim of
  easement abandonment).  This evidence also supports the Lysobeys'
  contention that an easement existed prior to 1935 and was reserved in the
  deeds.  Moreover, to reach the conclusion urged by Okemo, the fact-finder
  must infer that Walker and his predecessors-in-interest had no right-of-way
  to access their land and that the reservation in the 1935 deed was a mere
  nullity.

       On this record, we cannot say that Okemo has met its burden of showing
  that there is no genuine issue regarding whether an easement appurtenant to
  the Walker lands existed at the time Walker attempted to reserve the
  easement in the 1935 deed.  This factual issue is central to a resolution
  in this case.  Accordingly, summary judgment was improperly granted.(FN4)

                                     II.

       The Lysobeys argue that the court erred by concluding that any
  easement that may have existed to access the Lysobey land was extinguished
  by adverse possession.  We assume the existence of an easement to consider
  whether actions by Okemo may have extinguished it.  To extinguish an
  easement by adverse possession, Okemo must show an ouster of the dominant
  owner of the easement by open, notorious, continuous, hostile and adverse
  possession of the road for the statutory period of fifteen years.  12
  V.S.A. § 501; Percival v. Fletcher, 121 Vt. 291, 296, 155 A.2d 737, 740
  (1959).  "The possession must be unequivocal and incompatible with
  possession and use by the dominant owner."  Id.  To start the prescription
  period, Okemo must show that it acted "clearly wrongful as to the owner of
  the easement."  R. Powell & P. Rohan, 3 Powell on Real Property § 34.21, at
  34-261 (1994).  Its use of the land must be incompatible or irreconcilable
  with use of the easement.  Id.

       Use of the road by Okemo during periods of nonuse by the Lysobeys or
  their predecessors-in-title is not adverse use, but is more accurately
  characterized as privileged use.

 

  See Beebe v. Swerda, 793 P.2d 442, 447 (Wash. Ct. App. 1990) (use of
  property subject to easement by servient owner during periods of nonuse by
  dominant owner is not adverse but rather privileged).  Indeed, it is
  difficult to establish adverse possession of an easement where the dominant
  owner abstains from using the easement.  R. Powell & P. Rohan, supra, §
  34.21, at 34-264-65.  Erection of a permanent structure, such as a building
  or wall that clearly interferes with the right of use, would be sufficient
  to extinguish it.  Id. at 34-261-62; see e.g., Percival, 121 Vt. at 297,
  155 A.2d  at 740-41 (stone wall extending across easement was adverse use). 
  Less permanent obstructions may be considered adverse where the dominant
  owner recognizes the purpose is to prevent use of the easement.  See id. at
  297, 155 A.2d  at 741 (clothesline barrier across right-of-way was
  unequivocal act where understood to be so by dominant owner who cut lines).

       In this case, there is no indication that Okemo's use of the road was
  at any time adverse to the use of an easement to access the Lysobey land. 
  There is no permanent structure across the road, nor any evidence that
  Okemo prevented the Lysobeys or their predecessors-in-title access to the
  Lysobey land at any time prior to this action.  On the contrary, the
  evidence indicates that the dominant owners did not use the easement during
  the winter; thus, Okemo's use of the road was compatible with that of the
  owner of the easement and could not have been adverse.  See R. Powell & P.
  Rohan, supra, § 34.21, at 34-262-63.  Accordingly, we conclude that Okemo
  did not assert facts sufficient to establish extinguishment of the easement
  by adverse possession.
 
                                    III.

       The Lysobeys also argue that the trial court erred by concluding that
  Okemo Mountain Road is not a public road under Ludlow Town Ordinance §
  610.3 and 24 V.S.A. § 4406(2). Section 4406 provides that no municipality
  may adopt zoning regulations that do not provide for access to public roads
  or waters. "No land development may be permitted on lots which do not
  either have frontage on a public road or public waters or, with the
  approval of the planning commission, access to such a road or waters by a
  permanent easement or right-of-way at least

 

  twenty feet in width."  24 V.S.A. § 4406(2).  Ludlow Town Ordinance § 610.3
  adopts this language.  Neither the statute nor the ordinance defines a
  public road.

       We apply the same rules in construing the statute and the ordinance. 
  Blundeon v. Town of Stamford, 154 Vt. 227, 229, 576 A.2d 437, 439 (1990). 
  Our primary objective is to effectuate the intent of the Legislature. 
  Bisson v. Ward, 160 Vt. 343, 348, 628 A.2d 1256, 1260 (1993).  We presume
  the Legislature intended the plain meaning of the statutory language. Id. 
  Black's Law Dictionary defines "public road" as a "highway."  Black's Law
  Dictionary 1193 (5th ed. 1979).  It defines a "highway" as a "free and
  public roadway or street; one which every person has the right to use." 
  Id. at 656.  "Its prime essentials are the right of common enjoyment on the
  one hand and the duty of public maintenance on the other."  Id.

       The Lysobeys argue that "public road" is synonymous with "highway" as
  defined by 19 V.S.A. § 1(12).  The Department maintains that 19 V.S.A. §
  1(12) should not be determinative because the purposes of the two statutes
  are distinct and because the two statutes use different words: "highway"
  versus "public road."  We reject any distinction between "public road" and
  "highway" as they are commonly understood and defined.  See, e.g.,
  Webster's Ninth New Collegiate Dictionary 571 (1991) ("highway" defined as
  "a public way"); id. at 1018-19 ("road" defined as a "highway").  Moreover,
  the definition of "highway" provided by 19 V.S.A. § 1(12) is consistent
  with the plain meaning of "public road or highway," a road over which the
  public has a right to pass and which the government has the obligation to
  maintain.  Because the obligation to maintain exists if the road in
  question is a "highway" under 19 V.S.A. § 1(12), this definition and case
  law regarding the obligation to maintain may be applied to determine
  whether Okemo Mountain Road is a public road under Ludlow Zoning Ordinance
  § 610.3.

       A highway or public road may be established by statute or by
  dedication and acceptance. See 19 V.S.A. § 1(12); Town of Springfield v.
  Newton, 115 Vt. 39, 43, 50 A.2d 605, 608 (1947).  There is nothing before
  the Court to indicate that Okemo Mountain Road was established as a public
  road by statute.  Dedication of a road as a highway or public road is the
  setting apart of the land for public use, and may be either express or
  implied from the acts of

 

  the owner.  Druke v. Town of Newfane, 137 Vt. 571, 574, 409 A.2d 994, 995
  (1979).  The essential element is the intent of the owner.  Newton, 115 Vt.
  at 43-44, 50 A.2d  at 608-09. "Where the evidence is conflicting, the
  question of dedication is one of fact."  Id. at 44, 50 A.2d  at 609. 
  Walker's intent is evidenced in part in his deeds and those of other
  landowners who granted easements to the State, see Druke, 137 Vt. at 576,
  409 A.2d  at 996 (deeds recognizing preexisting right of public to pass are
  evidence of intent to dedicate), and counters Okemo's contention that there
  is no genuine question of material fact on this issue.

       In addition to dedication, however, the road must be accepted by the
  government as a public road.  Newton, 115 Vt. at 44, 50 A.2d  at 609.  Here
  again, "intention is vital, for there cannot be an acceptance without it." 
  Id.  Such evidence may be inferred from evidence of assuming the burden of
  maintaining the road.  Id. at 45, 50 A.2d  at 609.  Again, intent is a
  question of fact, and the evidence in this regard is scarce and
  conflicting.  We conclude that the issue of whether Okemo Mountain Road is
  a public road rests on the intent of the parties when Walker granted rights
  to the State for the road to be improved.  This is a material factual issue
  in dispute.

       On motion for summary judgment, Okemo presented two documents to
  support its contention that Okemo Mountain Road is not a public road: the
  affidavit of Edward Leary, Director of Lands Administration for the
  Department, and the Department Policy #13.  Neither document entitles Okemo
  to summary judgment.  Policy # 13 became effective May 15, 1991, after the
  applications for the zoning permits were filed -- indeed, after the appeal
  to the superior court was filed; accordingly, it is irrelevant to
  determining whether Okemo Mountain Road is a public road.  Further, facts
  in the affidavit by Mr. Leary were disputed by documents submitted by the
  Lysobeys, and Mr. Leary does not state how he has personal knowledge of
  events concerning Okemo Mountain Road during the 1930s and prior thereto. 
  Assertions by the Department -- by administrators or by policy adopted
  after the commencement of this action -- declaring that Okemo Mountain Road
  is not a public road are legal arguments, not evidence to establish this
  fact.

 

       Reversed and remanded.



                              FOR THE COURT:



                              _______________________________________
                              Associate Justice



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                                  Footnotes


FN1.  Justice Johnson sat at oral argument but did not participate in this
  decision.

FN2.  The Lysobeys also argue that they have an easement by necessity
  over Okemo Mountain Road and that denial of a permit to build on their land
  amounts to a taking of property in violation of the Fifth Amendment and the
  Contract Clause of the United States Constitution.  We do not reach these
  issues.

FN3.  To the extent that Walker created and retained an easement over
  the section of the road traversing his land, that easement was extinguished
  by the 1940 quitclaim deed by which Walker quitclaimed to the State of
  Vermont "all right and title" to the 1.75-acre parcel.  See Town of Wolcott
  v. Behrend, 147 Vt. 453, 458, 519 A.2d 1156, 1160 (1986) (quitclaim deed
  conveys to grantee only interest that grantor had at time of conveyance). 
  This deed is, however, evidence that supports the notion that Walker
  intended to dedicate this land to public use.

FN4.  We do not consider the extent of any easement, as this is more
  properly considered by the trial court in the first instance.