In re .88 Acres of Property

In re .88 Acres  (95-308); 165 Vt 17; 676 A.2d 788

[Opinion Filed 08-Mar-1996]


  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. 95-308


In re .88 Acres of Property                            Supreme Court
Owned by the Town of Shelburne
                                                       On Appeal from
                                                       Chittenden Superior Court

                                                       January Term, 1996


Linda Levitt, J.

Steven F. Stitzel of Stitzel & Page, P.C., Burlington, for plaintiff-appellee

Joseph D. Fallon, Hinesburg, for defendants-appellants


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


       GIBSON, J.   The Town of Shelburne brought this action to quiet title
  to a parcel of land donated to the Town in 1807 subject to the condition
  that the Town build a meeting house on the property and continue to use the
  parcel for that purpose.  The heirs of the donor appeal the superior
  court's summary judgment ruling that the Town had acquired the property by
  adverse possession.  We affirm.

       In 1807, by warranty deed, Benjamin Harrington conveyed two parcels of
  land to the Town.  One of the parcels was donated subject to its use as a
  green or parade ground.  The other, the subject property, was donated as
  long as the Town built a meeting house thereon and continued to use it for
  that purpose.  In 1808, a building known as the White Church was built on
  that property.  From 1808 to 1865, the building served as a meeting house
  for various congregations, as well as the town hall and the town clerk's
  office.  In 1865, the White Church burned, and  a new town hall was
  constructed in the same spot two years later.  The new town hall continued
  to serve as a place of public worship.  In 1871, a two-story school
  building was erected next to the town hall.  The town hall and school were
  destroyed by fire in 1925.  The

 

  following year, a new school was built on the site previously occupied by
  the two buildings that had burned.  In 1927, the present town hall was
  built on a nearby parcel of land conveyed to the Town by another donor.

       The Town commenced suit to quiet title in 1994.  In response to the
  parties' opposing summary judgment motions, the trial court ruled that the
  Town was entitled to the subject property free and clear of restrictions in
  the Harrington deed because the Town had used the property since 1926 in a
  manner adverse to the deed's restrictions.

                                   I.

       An action for the recovery of lands must be "commenced within fifteen
  years after the cause of action first accrues."  12 V.S.A. § 501.  This
  limitations period does not apply, however, "to lands given, granted,
  sequestered or appropriated to a public, pious or charitable use, or to
  lands belonging to the state."  12 V.S.A. § 462.  In appellants' view,
  because the subject property was given for a public use, and has since been
  used or appropriated for public purposes, the limitations period in § 501
  does not apply, and thus the Town may not obtain the property by adverse
  possession.  We disagree.

       Appellants concede that the Harrington deed granted the Town a
  determinable fee in the property.  Consequently, when the Town breached the
  deed restriction by building a school on the property and erecting a new
  meeting house on separate property, the fee automatically reverted to the
  heirs of Benjamin Harrington.  See Ball v. Hall, 129 Vt. 200, 208, 274 A.2d 516, 521 (1971); Collette v. Town of Charlotte, 114 Vt. 357, 360, 45 A.2d 203, 205 (1946). From that point on, the Town's possession of the property
  was adverse to the deed's restrictions and the heirs' right to title.

       Appellants argue, however, that because the Town continued to
  appropriate the parcel for public purposes, § 462 bars the Town from taking
  title by adverse possession.  Appellants also assert that if the deed had
  conveyed a fee upon a condition subsequent rather than a determinable fee,
  then reversion could not have occurred absent the heirs taking possession
  of

 

  the property.  See Collette, 114 Vt. at 360, 45 A.2d  at 205 (only practical
  distinction between right of entry for breach of condition subsequent and
  possibility of reverter on determinable fee is that fee in former estate
  does not terminate until entry by person having right, while fee in latter
  estate reverts at once on occurrence of event by which it is limited). 
  According to appellants, the application of § 462 should not hinge on
  whether the subject property is held as a determinable fee or a fee upon a
  condition subsequent.

       We are not persuaded by these arguments.  Section 462, which has
  remained unchanged since 1801, see Society for the Propagation of the
  Gospel in Foreign Parts v. Town of Sharon, 28 Vt. 603, 612 (1856), is
  Vermont's version of the  generally accepted, common-law rule that a claim
  of title or right by adverse possession does not lie against public lands. 
  The principal policy consideration behind this rule is that it would be
  injurious to the public to allow adverse possession of lands dedicated to
  public use.  7 R. Powell, Powell on Real Property  1015, at 91-96-97
  (Patrick J. Rohan ed., rev. ed. 1995); see Williamstown Borough Auth. v.
  Cooper, 591 A.2d 711, 715 (Pa. Super. Ct. 1991) (adverse possession does
  not lie against Commonwealth because land is impressed with public use).

       Municipal lands are presumed to be held for public use, and if that is
  not the case, it is usually because the municipality has failed to put the
  property to any use at all.  See Jarvis v. Gillespie, 155 Vt. 633, 642, 587 A.2d 981, 987 (1991) (land owned by municipality is presumed to be given to
  public use; presumption can be rebutted, however, by demonstrating that
  town abandoned land).  If we were to apply § 462 as suggested by
  appellants, municipalities would, for all practical purposes, be barred
  from obtaining lands through adverse possession.  The moment a town took
  possession of lands for a public purpose, the property would be
  "appropriated" for public use, and under appellant's theory, the town could
  never adversely possess it.  If, on the other hand, a town took possession
  of land but never put it to any use, the elements of an adverse possession
  claim would most likely not be met.

       Precluding towns from adversely possessing property is unrelated to §
  462's objective

 

  of preventing lands in public use from going into private hands.  While we
  recognize that § 462 does not preclude adverse possession of municipal
  lands not in public use, see id. at 644, 587 A.2d  at 988, the statute
  clearly was not intended to prevent municipalities from adversely
  possessing other lands.  Indeed, it is generally recognized that public
  entities, including municipalities, may acquire land by adverse possession. 
  7 R. Powell, supra,  1015, at 91-102-03; 10 E. McQuillin, The Law of
  Municipal Corporations § 28.15, at 43 (3d ed. 1990).

       Here, we need not decide whether § 462 can ever be applied against
  municipalities.  See, e.g., 7 R. Powell, supra  1015, at 91-103 (where one
  governmental entity claims adverse possession from another, courts have
  reached mixed results).  Rather, we take the narrower approach dictated by
  the facts of this case.  Section 462 is intended to enable property owners
  who hold land in public use to oust trespassers and preserve the public
  use, regardless of the length of time the trespasser has possessed the
  land.  Accordingly, the term "given, granted, sequestered or appropriated
  to a public . . . use" in § 462 refers to the use made of the property by
  the legal owner, not the trespasser.  To hold otherwise, as shown above,
  would defeat the purpose of the statute and lead to absurd consequences. 
  See In re A.C., 144 Vt. 37, 42, 470 A.2d 1191, 1194 (1984) (if it can be
  fairly done, statute should be construed to accomplish purpose for which it
  was intended; construction should not render statute ineffective or lead to
  irrational results).

       Because the subject property reverted to the heirs of Benjamin
  Harrington after the Town breached the deed restriction in 1926, the
  property was no longer given or appropriated for a public purpose by its
  legal owners, the heirs of Benjamin Harrington.  Accordingly, the Town was
  not barred by § 462 from adversely possessing the property.  As for
  appellants' argument that the result might be different had the deed
  conveyed the land in fee upon a condition subsequent, we respond only that
  it was not, and that question is not before us.

                                  II.

       Appellants also contend that the Town's use of the doctrine of adverse
  possession to

 

  acquire title to the subject property violated their constitutional rights
  by taking the property without complying with the statutory condemnation
  procedures.  We need not consider this argument, which is raised for the
  first time on appeal.  See Houston v. Town of Waitsfield, 162 Vt. 476, 481,
  648 Vt. 864, 867 (1994) (refusing to consider takings argument made for
  first time on appeal).  We note, however, that appellants are arguing, in
  effect, that a town can never adversely possess lands, a position contrary
  to accepted law.  See 10 E. McQuillin, supra, § 28.15, at 43
  (municipality's right to acquire property by condemnation proceedings does
  not necessarily exclude its right to acquire property by other means, such
  as adverse possession).

                                  III.

       Next, appellants argue that there are genuine issues of material fact
  as to whether the Town's use of the subject property was hostile and
  adverse to the deed restriction.  According to appellants, because the
  property was also used for school purposes to varying degrees from the time
  of the original conveyance, and because the new school hosted different
  types of meetings on occasions, the construction of the new school after
  the 1925 fire did not put the Harrington heirs on notice of a hostile or
  adverse use.

       We find no error in the court's granting summary judgment to the Town. 
  The facts are not in dispute.  Before 1926, the Town had maintained a
  meeting house on the property.  From 1927 on, the town hall was on separate
  property, and only the new school remained on the subject property.  Thus,
  after 1926, there was no meeting house or town hall on the property, and
  the primary use of the parcel was for school purposes.  We conclude that,
  as a matter of law, the building of the new school in the place where the
  town hall had stood, combined with the building of the new town hall on
  separate property, was adverse and hostile to the deed restriction and put
  the heirs on notice that the property was being used in breach of that
  restriction.

                                  IV.

       Finally, appellants argue that if this Court determines that the Town
  is entitled to the

 

  subject property unencumbered by the deed restriction, then they are
  entitled to the green or parade ground free and clear of the Town's
  interest.  Appellants reason as follows: (1) the properties were conveyed
  in one deed, (2) the intent of the deed was to allow the Town use of both
  parcels as long as they were both used for the designated purposes, (3) the
  green or parade ground reverted to appellants along with the subject
  property in 1927, and (4) the Town has failed to show that it adversely
  possessed the green or parade ground.  Thus, according to appellants, they
  now own the green or parade ground.  This argument is without merit.  As
  the trial court stated, the deed conveyed two separate and distinct parcels
  of land for two separate and distinct purposes; thus the grants are
  severable.  There is no evidence that the green or parade ground was ever
  used other than for its intended purpose.

       Affirmed.

                                      FOR THE COURT:

                                      _______________________________________
                                      Associate Justice