Okemo Mountain, Inc. v. Town of Ludlow

Okemo Mountain, Inc. v Town of Ludlow (98-498); 171 Vt. 201; 762 A.2d 1219 

[Filed 14-Jul-2000]


       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. 98-498


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

Town of Ludlow
John Lysobey, et al.	                          January Term, 2000



Alan W. Cheever, J.

John Lysobey, Pro Se, Ludlow, Appellant.

Richard H. Coutant of Salmon & Nostrand, Bellows Falls, for Appellee Okemo 
  Mountain, Inc.

William H. Sorrell, Attorney General, Montpelier, and Ginny M. McGrath, 
  Special Assistant Attorney General, Waterbury, for Appellee Department of 
  Forests, Parks and Recreation.


PRESENT:  Dooley, Morse, JJ., and Allen, C.J. (Ret.) and Gibson, J. (Ret.), 
  Specially Assigned 


       DOOLEY, J.   Property owner John Lysobey (FN1) appeals from a superior
  court decision,  claiming that the court erred in holding that he does not
  have a right to use Okemo Mountain Road in  the winter, although the road
  provides the only access to his property.  On appeal, he claims that he 
  has an easement over Okemo Mountain Road either by explicit reservation in
  a 1935 deed 

 

  or by necessity.  He also contends that  he has a common-law right to
  access his abutting property via  this public road, and that by denying him
  access to his property, the State violates his constitutional  rights by
  depriving him of the essential attributes of property ownership without
  just compensation.   We hold that Lysobey has a common-law right to access
  his property, and that closing Okemo  Mountain Road for the winter violates
  this property right.  We deny him an injunction to open the  road to his
  use during the winter, but we hold that he is entitled to just compensation
  for the taking of  his property right and remand for the court to determine
  the amount.

       This is the second appeal in this case.  We briefly outline the facts,
  which are more fully  detailed in our previous decision, Okemo Mtn., Inc.
  v. Town of Ludlow, 164 Vt. 447, 671 A.2d 1263  (1995).  In 1986, Lysobey
  purchased thirty-four acres on Okemo Mountain in Ludlow, Vermont.   Access
  to the property is via Okemo Mountain Road, which passes through land owned
  by Okemo  Mountain, Inc., and through Okemo State Forest before reaching
  Lysobey's property.  In 1956,  Okemo Mountain, Inc. began operating a ski
  area on Okemo Mountain.  Access to the base lodge of  the ski area is via
  Okemo Mountain Road.  In 1963, the Department of Forests, Parks and
  Recreation  leased the upper section of Okemo Mountain Road, above the base
  lodge, to Okemo Mountain, Inc.,  which has since used this part of the road
  as a ski trail during the winter.  Because the road is closed  to vehicular
  traffic during the winter, Lysobey cannot access his property at that time.

       In 1988, Lysobey applied to the Town for a permit to build a residence
  on his land, which the  zoning administrator granted.  Okemo Mountain, Inc.
  appealed, claiming that Lysobey had no  frontage on a public road, nor any
  permanent easement to a public road, required under the 

 

  Ludlow zoning regulations to develop land.  The zoning board affirmed the
  zoning administrator,  concluding that Lysobey has a right-of-way over
  Okemo Mountain Road that provides access to a  public road.  Okemo
  Mountain, Inc. and the Department appealed to superior court.  Lysobey 
  intervened and filed a cross-complaint for a declaration of the rights of
  the parties to use Okemo  Mountain Road and for an injunction to prevent
  Okemo Mountain, Inc. and the Department from  interfering with his use of
  the road.  On summary judgment, the superior court concluded that, even  if
  there had been a year-round easement appurtenant to Lysobey's property, it
  was extinguished by  adverse possession fifteen years after the road was
  first used as a ski trail, and thus, that Lysobey has  no frontage on or
  access to a public road.  Consequently, the court denied the building
  permit.   Lysobey appealed to this Court.

       In our first decision, Okemo Mtn., Inc., we reversed the grant of
  summary judgment, and held  that Okemo Mountain, Inc. and the Department
  had not established extinguishment of an easement  by adverse possession. 
  The evidence indicated that until this action, the owners of the Lysobey
  land  did not use the easement in the winter; thus, the use of the easement
  as a ski trail had been  compatible with that of the owner of the easement,
  not adverse.  See Okemo Mtn., Inc., 164 Vt. at  453, 671 A.2d  at 1268.  We
  remanded the matter for a trial on two issues.

       The first issue was whether Lysobey held an easement appurtenant to
  his land.  In support of  this claim, Lysobey relied on a 1935 right-of-way
  deed from Herbert E. Walker, his predecessor-in-title, to the State, which
  purported to reserve to Walker an easement over Okemo Mountain Road.   At
  that time, the State had been planning to build Okemo Mountain Road and was
  acquiring rights-of-way across privately owned land to do so.  Thus,
  Walker, one of the landowners, conveyed to the  State exclusive use and
  control of a four-rod-wide strip of land across

 

  his land, conforming to the proposed Okemo Mountain Road surveyed and
  marked on the land.  In  the same deed, Walker reserved the right to pass
  over the strip of land and any other like strips of  land lower on the
  mountain and the road to be constructed thereon.  Because a grantor may
  reserve  only rights held by the grantor at the time of the conveyance, we
  remanded for the court to determine  "whether an easement appurtenant to
  the Walker lands existed at the time Walker attempted to  reserve the
  easement in the 1935 deed."  Id. at 452, 671 A.2d  at 1268.  If there was no
  easement prior  to the deed, the reservation was a mere nullity.  See id.
  (FN2)

       The second issue was whether Okemo Mountain Road is a public road
  under 24 V.S.A. §  4406(2) and the Ludlow Town Ordinance, which require
  access to a public road in order to develop  land.  We reversed the summary
  judgment holding that Okemo Mountain Road is not a public road,  and we
  remanded for the court to determine whether it had been dedicated as a
  public road, an issue  dependent on the intent of the grantors and other
  landowners who granted the easements to the State  and the intent of the
  State when it accepted the deeds.  See id. at 455, 671 A.2d  at 1269-70.

       Following the trial on remand, the court found that the trail that
  existed to the top of Okemo  Mountain prior to 1935 did not go through or
  near the Walker lands.  Okemo Mountain Road was  designed to be longer and
  less steep than the earlier trail, and the new road passed by 

 

  and through the Walker lands.  The court concluded that there was no
  easement appurtenant to the  Walker lands in 1935 when Walker attempted to
  reserve the right to pass over Okemo Mountain  Road in his deed to the
  State.  Because Walker could not reserve what he did not have, the court 
  concluded that the deed did not reserve any right to pass over Okemo
  Mountain Road. (FN3)  The  court also held that Lysobey had not proved the
  elements necessary to obtain an easement by  necessity.

       On the other hand, the court found that the intent of the State in
  acquiring the right-of-ways  over the private land on Okemo Mountain was to
  construct a road for public use.  It thus declared  Okemo Mountain Road a
  public road because it is on public land for the use of the general public.  
  Nonetheless, the court ruled that the Department exercises control over the
  use of Okemo Mountain  Road under the authority granted to it by 10 V.S.A.
  § 2603.  As noted in Okemo Mountain, Inc., 164  Vt. at 449, 671 A.2d  at
  1266, the Department classifies the road as a State Forest Highway, Class
  B,  a paved or unpaved highway generally open to the public, but that may
  be closed to public access  during certain times of the year.  The court
  found this status consistent with the State's original intent  when it
  acquired the rights-of-way to build the road.

       Based on these conclusions, the court: (1) granted Lysobey the zoning
  and building permits,  including a subsequent application to construct a
  generator house and deck; (2) ruled that the  Department had delegated its
  authority over Okemo Mountain Road to Okemo Mountain, Inc. 

 

  pursuant to lease agreements; and (3) held that Okemo Mountain, Inc. has
  the legal right to maintain  the upper portion of Okemo Mountain Road as a
  ski trail, and Lysobey has no right to interfere with  such use.  Lysobey
  appeals to this Court again.

                                I.  Easement

       Lysobey first claims that the 1935 Walker deed alone proves the
  existence of an easement to  access his property.  As we held in our
  previous decision, Walker could reserve by deed only rights  that he held
  at the time.  See id. at 452, 671 A.2d  at 1268.  On remand, Lysobey had the
  burden of  proving that Walker had an easement to access his land when he
  executed the reservation of such an  easement in the 1935 deed.  He failed
  to do so.  The State presented evidence indicating that the old  trail did
  not provide access to the Walker lands, and the court found this evidence
  credible.   Accordingly, the court concluded that Walker did not have an
  easement over Okemo Mountain Road  when he attempted to reserve one in the
  1935 deed.  Because the trial court is in a unique position to  assess the
  credibility of the witnesses and weigh the evidence, we will uphold its
  findings unless  clearly erroneous.  See Kanaan v. Kanaan, 163 Vt. 402,
  405, 659 A.2d 128, 131 (1995).  Here, the  evidence supported the court's
  findings; thus, there was no error in concluding that Walker had no 
  easement to access his land at the time he attempted to reserve an easement
  by the 1935 deed. 

       Lysobey also claims that the court erred in ruling that he does not
  have a right-of-way by  necessity over Okemo Mountain Road.  To obtain a
  way of necessity, one must show that (1) there  was a division of commonly
  owned land, and (2) the division resulted in creating a landlocked  parcel. 
  See Traders, Inc. v. Bartholomew, 142 Vt. 486, 492, 459 A.2d 974, 978
  (1983).  In such  circumstances, the owner of the landlocked property is
  entitled to a way of 

 

  necessity across the land formerly held in common.  Here, the court found
  that Lysobey had failed to  prove that there was a division of commonly
  owned land over which he was seeking a right-of-way.   On appeal, Lysobey
  points to no evidence showing a common ownership.  Accordingly, there was
  no  error in concluding that Lysobey failed to prove an easement by
  necessity.

       Lysobey also relies on two opinions of the Attorney General, issued in
  1970 and 1987.  He  contends that they establish that he and the other
  successors in title to the grantors of the Okemo  Mountain Road easement
  have a right to access their property via the road.  The opinions of the 
  Attorney General are, however, merely advisory opinions for the benefit of
  state officers.  See 3  V.S.A. § 159 (attorney general shall advise state
  officers on questions of law relating to official  duties and shall furnish
  written opinion when so requested).  They have no binding effect in this 
  Court.  See, e.g., Ruiz v. Hull, 957 P.2d 984, 992 (Ariz. 1998) (opinions
  of attorney general are  advisory and not binding; however, reasoned
  opinion should be accorded respectful consideration);  City of Bismarck v.
  Fettig, 601 N.W.2d 247, 253 (N.D. 1999) (attorney general opinions are not 
  binding, but court will follow them if they are persuasive).  The 1970
  opinion recognizes a common-law right of access, a claim that Lysobey
  advanced before the trial court and again here on appeal.

                       II. Common-Law Right of Access

       Lysobey contends that: (1) he has a common-law right to access his
  property via Okemo  Mountain Road because his property abuts this public
  road; (2) the right to access abutting public  roads is one of the
  incidents of ownership of real property; (3) he has a right to an
  injunction to  prevent interference with his right of access during the
  winter months; and (4) by denying him access  to his property during the
  winter months, the State has caused a taking of his private 

 

  property rights under the state and federal constitutions for which he is
  entitled to just compensation. 

       Under the common law, property owners have a right to access abutting
  public roads.  See,  Sebree v. Board of County Comm'rs, 840 P.2d 1125, 1129
  (Kan. 1992); State ex rel. OTR v. City of  Columbus, 667 N.E.2d 8, 12 (Ohio
  1996); Moore v. Commissioners Court of McCulloch County.,  239 S.W.2d 119,
  121 (Tex. Civ. App. 1951); Gillmor v. Wright, 850 P.2d 431, 437-38 (Utah
  1993).   See generally Annotation, Power to Directly Regulate or Prohibit
  Abutter's Access to Street or  Highway, 73 A.L.R.2d 652, 656-57 (1960)
  (overwhelming weight of authority recognizes right of  access to and from
  public highway as incident of property ownership); Annotation, Power to
  Restrict  or Interfere with Access of Abutter by Traffic Regulation, 73
  A.L.R.2d 689, 691 (1960) (same).  The  general rule is that an owner of
  property abutting a public road has both the right to use the road in 
  common with other members of the public and a private right for the purpose
  of access.  See Smith  v. State Highway Comm'n, 846 P.2d 259, 266 (1959);
  City of Columbus, 667 N.E.2d  at 12.   Although we have never detailed the
  specifics of these rights, our decisions have recognized them.   See, e.g., 
  Kelbro, Inc. v. Myrick, 113 Vt. 64, 68, 30 A.2d 527, 529 (1943); Skinner v.
  Buchanan,  101 Vt. 159, 165, 142 A. 72, 74 (1928).

       Under this doctrine, when a public road is opened adjacent to private
  property, the owner of  the abutting property obtains a right to access the
  public road by operation of law, see Southern  Furniture Co. v. Department
  of Transp., 516 S.E.2d 383, 386 (N.C. Ct. App. 1999), and when a  public
  road is discontinued or abandoned, the abutting landowner retains the
  private right of access,  see Gillmor, 850 P.2d  at 437-38 (abandonment of
  public right-of-way has no effect on 

 

  right of abutting landowner to use way).  The right of access has two
  requirements: (1) the person  claiming the right must own land that abuts
  the road, and (2) the road must be a public road.  See  Spurling v. Kansas
  State Park & Resources Auth., 636 P.2d 182, 183 (Kan. Ct. App. 1981). 
  Neither  element is in dispute in this appeal.

       First, Lysobey's property abuts Okemo Mountain Road.  "Abut" means
  "[t]o reach; to touch. .  . .  No intervening land."  Black's Law
  Dictionary 11 (6th ed. 1990); accord Sebree, 840 P.2d  at 1130  (holding
  "abut" means "to touch"); Miller v. Berryhill Nursery Co., 218 N.E.2d 467,
  470 (Ohio Ct.  App. 1966) ("abutting" means to end, to border on, to
  touch).  To claim an abutting owner's right to  access, some courts have
  required that the owner's land touch the public road at least at one point, 
  while others have required that the property be contiguous to the road, in
  other words that the  owner's land adjoin the public road at more than one
  point.  See Sebree, 840 P.2d  at 1130.  We need  not resolve that issue here
  because Lysobey's land touches Okemo Mountain Road at more than one  point. 
  Indeed, two sections of the road pass over land owned by Lysobey.

       Second, there is no dispute that Okemo Mountain Road is a public road. 
  The trial court  found that Okemo Mountain Road is a public road under 24
  V.S.A. § 4406(2) for zoning purposes  and a highway under 19 V.S.A. § 1(12)
  for purposes of state highway law.  Indeed, in Okemo Mtn.,  Inc., we held
  that the definitions of public road and highway under these two statutes
  are  synonymous.  164 Vt. at 454, 671 A.2d  at 1269.  Under 19 V.S.A. §
  1(12), highways may be  established in several ways.  Here, the trial court
  found that Okemo Mountain Road was constructed  over lands conveyed to the
  State for public use, which is one way to establish a public road.  See 19 
  V.S.A. § 1(12) (roads that have been constructed for public travel over
  land