In re Bill

In re Bill  (97-203); 168 Vt. 439; 724 A.2d 444

[Filed 30-Oct-1998]


  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. 97-203


In re Ruth Bill                               Supreme Court

                                              On Appeal from
                                              Addison Superior Court

                                              March Term, 1998


Matthew I. Katz, J.

       Christopher D. Roy of Downs Rachlin & Martin, PC, Burlington, for
  Inervenor-Appellant.

       John W. Whitcomb of Neuse, Smity & Venman, P.C., Middlebury, for
  Appellee.


PRESENT:  Amestoy, C.J., Morse, Johnson and Skoglund, JJ., and
          Corsones, D.J., Specially Assigned


       AMESTOY, C.J.   This appeal arises from a decision of the Addison
  Superior Court granting Petitioner Ruth Bill's request to  declare legally
  discontinued a segment of old highway within the Town of New Haven, a
  portion of which runs across her property. Intervenor Thomas Fisher, whose
  undeveloped parcel of land abuts a segment of the old highway, contends
  that the court erred in concluding that there was statutory authorization
  for a 1926 order by the New Haven selectboard purportedly discontinuing the
  segment at issue.  We agree and, thus, reverse.

       The disputed highway segment was originally laid out two centuries
  ago, but with the exception of the trees which line the route and evidence
  of old bridgework, it is not maintained as a road today.   The road segment
  is located wholly within the Town of New Haven, and runs northerly from the
  intersection of Route 17 and Field Days Road, along the western edge of
  Fisher's  parcel, then over Bill's, finally intersecting with Maple Street 
  Extension near a point

 

  where that road turns into Hallock Road.  The parties in this case are
  neighboring landowners.  Fisher argues that when he bought his twenty-eight
  acre parcel of property in 1979, he was assured that it was accessible by
  way of the old town road.  He contends that the property would be
  landlocked and undevelopable without the highway.  Around the time of his
  purchase, Fisher asked the New Haven selectboard about the legal status of
  the highway segment.  The board informed Fisher that "highway mapping 
  since 1931 has never acknowledged existence of [the disputed highway
  segment]" and that Fisher bore the burden to prove that  the roadway
  exists.

       In 1995, Fisher sought to convey the parcel to his daughter and
  son-in-law so they could build a home.  The Town Zoning Administrator
  denied Fisher's application for a building permit  based on the
  Administrator's determination that the highway  segment had been
  discontinued, and therefore the parcel lacked the necessary road access. 
  Fisher again approached the selectboard to confirm the status of the
  highway, and as a result, the historical origins of the road came to light.

       The road was devised in 1798 when Vermont's General  Assembly adopted
  "An Act Appointing A Committee to Lay Out, Alter  and Straighten the Road
  from Vergennes Through Castleton to Bennington," pursuant to which a
  committee of three individuals  undertook "to view, survey, lay out, and
  alter or turn said road  from Vergennes, through Waltham, Weybridge,
  Cornwall, Whiting, Sudbury, Hubbardton, Castleton, Poultney, Wells, and to
  Colonel Elisha Averill's in Pawlet." The resulting highway, referred to  by
  the parties as the "Legislative Highway," was laid out by the appointed
  committee in 1799, and a survey of the highway's course  through New Haven
  was recorded in the town records.

       In 1812, the New Haven selectboard laid out the town's  portion of a
  highway leading from Vergennes to Weybridge -- the so called "1812 Highway"
  -- which tracked the same course as the Legislative Highway through the
  town.  A survey for the 1812 Highway was recorded in New Haven's town
  records.

       On this evidence, notwithstanding the fact that the road no longer
  appeared on maps, the

 

  New Haven selectboard concluded in November 1995 that the disputed highway
  segment remained a legal highway and issued Fisher a permit to construct
  road access to his property along the highway's right-of-way.  Upon notice
  of the permit's issuance, Bill employed a surveyor who discovered in the
  town land records a 1926 order of the New Haven selectboard purportedly
  discontinuing the highway segment.  The notation read:  "Highway Closed. 
  The road leading from J.S. Marshall's to  the residence of C.C. Tier was
  officially closed by the Selectmen W.H. Patterson and George Palmer."(FN1)
  The parties agree that the  1926 notation refers to the disputed highway
  segment.  Following discovery of the 1926 order, the selectboard held
  hearings in late 1995 and early 1996 to address the highway's status.  In 
  January of 1996, the board concluded that the disputed segment remains a
  five rod, class four highway.

       Bill petitioned the Superior Court, pursuant to 19 V.S.A. §§ 701 -
  819, to overturn and vacate the selectboard's 1995 and  1996 orders
  respecting the disputed segment.  In response to Fisher's motion that the
  petition be considered pursuant to  V.R.C.P. 75, the court ruled that it
  would treat Bill's petition  as a declaratory judgment action to determine
  whether the highway exists, focusing specifically on whether the 1926
  action by the New Haven selectboard constituted a valid discontinuance
  under the General Laws of 1917, the law then applicable.  The court
  concluded that the 1926 board acted within its authority.  Fisher appeals.

       The rule consistently applied in Vermont has been that "[t]he
  procedure to be followed in laying out or discontinuing a  highway is
  wholly statutory and the method prescribed must be substantially complied
  with or the proceedings will be void."  In  re Mattison, 120 Vt. 459, 462,
  144 A.2d 778, 780 (1958); see also Town of Barton v. Town of Sutton, 93 Vt.
  102, 103, 106 A. 583, 584 (1919).  We presume that action taken by a selectboard in the
  scope of its official duties is in accordance with statutory requirements. 
  See Traders, Inc. v. Bartholomew, 142 Vt. 486, 489, 459 A.2d 974, 977
  (1983).  Nonetheless, because the selectboard of a town constitutes an
  inferior tribunal with certain quasi-judicial powers, see Town of
  Shrewsbury v. Davis, 101 Vt. 181, 187, 142 A. 91, 93 (1928), when a
  selectboard acts outside its statutory authority with respect to a
  discontinuance, the defect is akin to a lack of jurisdiction over the
  subject matter.  See Mattison, 120 Vt. at 463, 144 A.2d  at 780.  The
  proceedings and order would be void and may be impeached in any way and at
  any time.  See id.

       The parties agree that the present-day legal status of the disputed
  highway segment turns on the validity and legal effect of the 1926
  selectboard's purported discontinuation of the  highway:  if the board
  substantially complied with the then-existing statutory scheme for highway
  discontinuances, the highway is discontinued and no longer exists; if not,
  the highway still exists.(FN2)  We pause to note matters over which there is
  no dispute.  The parties agree that the disputed segment constitutes a
  portion of both the 1798 Legislative Highway and the 1812 Highway. 
  Further, the parties agree that the disputed segment which was purportedly
  closed lies wholly within New Haven.

       In relevant sections, the 1917 General Laws of Vermont provided as
  follows:

      § 4452. When towns in different counties; proceedings.  An
      application to lay out, alter or discontinue a highway extending into
      or through two or more towns . . . where such towns lie in different
      counties, shall be made to the supreme court, which shall have the
      same power, and shall proceed in the same manner as the county
      court, when the towns lie in the same county.

      § 4453. . . . When the public good requires a highway to be laid out,
      altered or discontinued, extending into or through two or more towns
      in the same county, seven or more freeholders of such towns, or the
      vicinity, may apply to the county court; and such 
      court . . . may render judgment, as when the highway is located

 

       in only one town . . . .

       § 4482. Selectmen may alter or discontinue a highway laid
       out by a committee appointed by the general assembly; but if the
       highway is laid through two or more towns, the same proceedings
       shall be had as in laying, altering or discontinuing highways
       through two or more towns.

  Bill argues that the 1926 selectboard derived its authority from the first
  clause of § 4482 because the highway had been laid out by a committee
  appointed by the general assembly and the highway being discontinued lay
  wholly within one town.  Because the highway being discontinued was not
  "laid through two or more  towns," id., she contends that § 4453's
  requirement that the  county court rule on such discontinuances was not
  triggered.  The trial court adopted this reasoning and, accordingly, ruled
  that the selectboard had jurisdiction to order the discontinuance.

       Fisher counters that the Legislative Highway as a whole must be
  considered to determine which body had jurisdiction to discontinue the
  disputed segment.  Under Fisher's construction,  where the entire highway
  extends through two or more towns, discontinuance of a segment located
  wholly within a single town nonetheless implicates the second clause of §
  4482, and thus discontinuance is only valid when done by means of "the same 
  proceedings . . . as in laying altering or discontinuing highways through
  two or more towns."  Id.  We are persuaded that  Fisher's is the correct
  construction of the statute.

       This Court has, on many occasions, addressed the jurisdictional issues
  raised in connection with highways extending into two or more towns.  In
  Mattison we considered a challenge to the town of Manchester selectboard's
  alteration and reclassification of a  highway segment within the town.  At
  about the same time as Manchester's action, the selectboard of the town of
  Sandgate  similarly altered and reclassified a section of the same highway
  within that town.  Like the statute in this case, the applicable statute in
  Mattison, 47 V.S. § 5076, provided that when a highway extending into or
  through two or more towns in the same county was to be laid out altered, or
  discontinued, application was to be made to the county court.  The Court

 

  held that the Manchester selectboard was without jurisdiction to make the
  alteration to the highway segment within the town, stating:

     [T]he highway in question commences in the town of Sunderland,
     crosses through a portion of the town of Manchester and runs into the
     town of Sandgate.  The county court under § 5076 and not the
     selectmen had jurisdiction.

  Mattison, 120 Vt. at 463, 144 A.2d  at 780.  The Court's reference  to the
  three towns through which the highway traversed indicates its consideration
  of the highway as a whole rather than the segment to be closed, and
  undercuts Bill's contention that only  the segment to be discontinued
  should control.

       We applied similar reasoning in Traders, Inc. v. Bartholomew, 142 Vt.
  486, 459 A.2d 974 (1983).  There, an owner of a landlocked parcel sought a
  declaratory judgment to determine whether the town's 1908 discontinuance of
  a highway segment  running over his land had been in conformance with
  applicable statutory law.  The landowner claimed that the road itself had
  continued into the next town and, therefore, the county court, and not the
  selectboard, had jurisdiction over the discontinuance.  The trial court
  found that the highway had not extended into the next town.  We concluded
  that the court's  finding was not clearly erroneous, and thus affirmed the
  court's  ruling that the highway had been properly discontinued by the
  selectboard.  See Traders, 142 Vt. at 489, 459 A.2d  at 977; see also
  Kelley, 46 Vt. at 511 (where highway connecting multiple towns has been
  laid over older highway originally laid out solely within single town,
  though town board would have jurisdiction to discontinue its old town road,
  it would be powerless to discontinue the highway because it extended "`into
  or through two  or more towns.'" (quoting 24 G.S. § 52)).

       Bill asserts that Fisher's construction of the statute would  render
  the first clause of § 4482 superfluous.  She contends that all highways
  laid out by act of the general assembly are laid through two or more towns,
  and, therefore, basing jurisdiction on the highway as a whole, rather than
  the segment to be discontinued, would always trigger the second clause of §
  4482,

 

  thus rendering the first clause superfluous.  We are unpersuaded for the
  simple reason that we find in the session laws numerous highways
  commissioned by the general assembly which were confined to a single town.
  See, e.g., "An act appointing a committee to  lay out and examine the roads
  in Woodbury, and for other purposes therein mentioned"  Act of Nov. 6,
  1813, reprinted in Laws of  Vermont of a Public and Permanent Nautre: 
  Coming Down to and Including, the Year ch. XLIV at 61.  Our construction of
  § 4482 gives effect to all parts of the statute.

       We are mindful that strict adherence to statutory rules with respect
  to highway discontinuances could, theoretically, produce the absurd result
  of bringing back highways long since gone.  See Ferguson v. Town of
  Sheffield, 52 Vt. 77, 83 (1879) (court would not apply strict common law
  rules of res judicata to highway proceedings where result would have absurd
  result of perpetuating unnecessary highway: "Such a decision would involve 
  the idea of permanency in our highways not heretofore entertained."). 
  Here, however, our decision does not lead to an  absurd result, but rather
  allows for the use of a road that clearly has some continuing utility to a
  landowner whose land would otherwise be undevelopable and landlocked.  The
  result, moreover, is consistent with the most recent determination of the
  New Haven selectboard that the highway still exists.

       We therefore hold that because the highway was laid through two or
  more towns, the 1926 New Haven selectboard lacked jurisdiction to
  discontinue the town's portion of the highway.   The selectboard's failure
  to comply with the then-existing  statutory scheme voids its proceedings
  and order purporting to discontinue the highway segment, and, therefore,
  the highway still legally exists.

       Reversed.


                       FOR THE COURT:



                       _______________________________________
                       Chief Justice


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                                  Footnotes



FN1. The 1926 order was discovered in the town land records, rather
  than the town records, which fact is significant for two reasons. The town
  custom has apparently been to file surveys and notations affecting highways
  in the town records, not the land records. The misfiling of the highway
  closure notation accounts for why it went for decades without discovery by
  successor boards and, perhaps accounts partly for why the 1996 New Haven
  selectboard concluded that the road had never been properly discontinued.

FN2. This  is so because, if the 1926 action was a valid
  discontinuance, subsequent selectboard orders declaring the highway as
  legally existing would be void for failure to follow the proper statutory
  procedures for laying out a highway.