Myers v. LaCasse
Annotate this Case
Myers v. LaCasse (2002-052); 176 Vt. 29; 838 A.2d 50
2003 VT 86A
[Filed 10-Oct-2003]
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.
2003 VT 86A
No. 2002-052
Nancy L. Myers Supreme Court
On Appeal from
v. Bennington Superior Court
James J. LaCasse and Marie A. LaCasse January Term, 2003
John P. Wesley, J.
Andre D. Bouffard of Downs Rachlin Martin PLLC, Burlington, for
Plaintiff-Appellant.
David Putter, Montpelier, and Terrance R. Wolfe, Bennington, for
Defendants-Appellees.
PRESENT: Amestoy, C.J., Dooley, Johnson and Skoglund, JJ., and Allen, C.J.
(Ret.), Specially Assigned
¶ 1. DOOLEY, J. In this foreclosure action, plaintiff Nancy Myers
appeals from the decision of the Bennington Superior Court vacating a
previous order granting summary judgment in her favor and granting summary
judgment for defendants James and Marie LaCasse. Plaintiff argues that the
court erred by (1) reopening and vacating the prior summary judgment
decision based on arguments not raised in connection with the initial
motion for summary judgment, and (2) ruling that a mortgage (FN1) granted
on one of two adjacent parcels several years before common ownership of the
two parcels was severed does not have priority over a way of necessity that
arose on foreclosure of a junior mortgage. We affirm.
¶ 2. The undisputed facts tell a complex and unique story. (FN2) At
different times, in 1987, defendants acquired title to two adjacent parcels
of real estate located in Bennington, Vermont. While the southern parcel
(Parcel I) had approximately 300 feet of public road frontage, the northern
parcel (Parcel II) lacked any such frontage and also had no deeded rights
of access to any public road. Defendants proceeded to mortgage Parcel I
three times, first to Merchants Bank (Merchants) in 1987, then again to
Merchants in 1990, and finally to First Vermont Bank and Trust (First
Vermont) later in 1990.
¶ 3. In 1996, defendants defaulted under the terms of the third
mortgage, and First Vermont subsequently brought a foreclosure action and
obtained a decree of foreclosure. The decree provided that if defendants
failed to redeem they would be "forever foreclosed and barred from all
equity of redemption in the premises and the plaintiff on such date [would]
be entitled to title, possession and ownership of said lands...."
Defendants also defaulted under the terms of Merchants' first and second
mortgages, and Merchants commenced its own foreclosure action. However,
Merchants voluntarily dismissed this action and instead took an assignment
from First Vermont as to all rights under its decree of foreclosure. When
defendants failed to redeem in the First Vermont action, Merchants obtained
a certificate of non-redemption and title to the property subject to the
first two mortgages which, at that point, Merchants continued to hold as
mortgagee. As a result of these events, defendants lost title to Parcel I,
and Parcel II became completely landlocked. Defendants did not appeal the
decree of foreclosure or the writ of possession issued pursuant to it.
¶ 4. Later in 1996, Merchants quitclaimed Parcel I to Atlantic Bank
and Trust Company (Atlantic) and assigned to it the outstanding mortgages
on the property. Atlantic sold the parcel to plaintiff in 1998, also
assigning to her the first and second mortgages given by defendants to
Merchants, together with the related notes. The deed specifically provided
that the title in the property would not merge with the mortgages so that
the mortgages would remain in effect.
¶ 5. Plaintiff subsequently filed this foreclosure action based on
the second mortgage in order to foreclose any outstanding interests in
Parcel I, including any easement by necessity which defendants might claim
to have arisen over Parcel I in order to provide access to Parcel II.
Defendants raised numerous defenses to foreclosure and counterclaims,
including the following:
22. In the event LaCasses' legal title to the mortgaged premises
is deemed already foreclosed and to have succeeded to plaintiff by
virtue of her succeeding to the interests of the other banking
institutions mentioned herein, or as a result of judgment in this
instant action, defendants submit that an easement or right of way
by necessity or implication nevertheless burdens the mortgaged
premises and benefits the other 4.6 acre parcel owned by LaCasses.
Furthermore, LaCasses submit that this easement is an independent
and separate property right and not one which was, or would be,
considered a part of the property secured by the Merchant's
mortgages, but rather one encumbering it, and therefore not
subject to this foreclosure proceeding for any proved breach of
Merchants' notes and mortgages.
In its prayer for relief, defendants requested the court to lay out
"defendants' recordable rights of access over the mortgaged premises to
their other parcel."
¶ 6. After discovery, plaintiff moved for summary judgment
pursuant to V.R.C.P. 80.1(c). In an August 4, 2000 opinion, the superior
court rejected all of defendants' defenses and granted plaintiff's motion.
The court also dismissed defendants' counterclaim on res judicata grounds.
Regarding the defense that the claimed way of necessity could not be
foreclosed, the court concluded that any way of necessity that may have
arisen as a result of the first foreclosure was necessarily junior to the
outstanding mortgages and therefore was subject to the present foreclosure.
Defendants attempted to take an appeal from this decision, but permission
to do so was denied by the trial court because no judgment of foreclosure
had yet been entered.
¶ 7. Plaintiff then moved for an accounting, as provided in 80.1(f),
and the matter was set for hearing in order to determine the equity of
redemption. Prior to the hearing, the superior court - now with a new
trial judge presiding - issued an entry order in which it raised sua sponte
a number of issues that the court concluded were important but had been
left unresolved by the August 4, 2000 order, and requested that the parties
submit further briefing on these issues. In particular, the court was
concerned that the method of determining the equity of redemption was still
disputed and that the issue of what interest defendants would receive in
the event they did redeem remained unresolved. After the parties submitted
further briefing, the court held a hearing on the accounting issues.
Shortly after, defendants moved to vacate the summary judgment order, and
at the same time filed their own motion for summary judgment. Plaintiff
opposed the motions both on procedural and substantive grounds.
¶ 8. On August 10, 2001, the court issued an opinion and order
granting defendants' motion to vacate as well as their motion for summary
judgment. The court concluded that it could review the earlier summary
judgment order pursuant to Morrisseau v. Fayette, 164 Vt. 358, 363-64, 670 A.2d 820, 824 (1995) and V.R.C.P. 54(b). In granting summary judgment for
defendants, the court first concluded that there was no basis to modify the
summary judgment decision that the First Vermont foreclosure decree
precluded defendants from relitigating issues concluded in that litigation.
The court ruled, however, that the first judge had erred in ruling that the
claimed way of necessity was junior to the mortgages held by plaintiff, and
thus held that the way of necessity was not subject to foreclosure.
Plaintiff subsequently filed a motion for reconsideration, which the court
denied. This appeal followed.
¶ 9. Plaintiff's first argument on appeal is that the trial court
erred by reopening and vacating the prior grant of summary judgment, and
doing so on the basis of arguments never raised in connection with the
prior grant. Plaintiff contends that allowing the trial court to overstep
the bounds of its plenary authority to revise interlocutory orders in this
"horizontal appeal" undermines the finality of orders granting summary
judgment, encourages judge shopping, and inserts unreasonable delay into
the foreclosure process.
¶ 10. Plaintiff acknowledges that the trial court's action violates
no explicit command of our procedural rules. Indeed, the grant of a motion
for summary judgment by itself is an interlocutory order and not a final
judgment. See Powers v. Hayes, 170 Vt. 639, 640, 751 A.2d 781, 782 (2000)
(mem.). Moreover, in this case, the summary judgment decision was intended
to resolve only part of the issues before the court. While it was intended
to resolve completely the issues raised in defendant's counterclaim, it did
not fully resolve the only claim remaining - plaintiff's foreclosure claim.
Thus, it was a partial summary judgment, see Berlin Dev. Assocs. v. Dep't
of Soc. Welfare, 142 Vt. 107, 112, 453 A.2d 397, 399 (1982), that did not
even reach the point where the decision with respect to plaintiff's
complaint was governed by V.R.C.P. 54(b). See Kelly v. Lord, 173 Vt. 21,
31-32, 783 A.2d 974, 982-83 (2001) (application of V.R.C.P. 54(b) requires
final adjudication of one of multiple claims, not merely resolution of some
issues pertaining to a single claim).
¶ 11. The court had the discretion to modify an interlocutory order.
See Dudley v. Snyder, 140 Vt. 129, 131, 436 A.2d 763, 764-65 (1981); Brown
v. Tatro, 136 Vt. 409, 411, 392 A.2d 380, 382 (1978) ("[A]n interlocutory
order or judgment is left within the plenary power of the court that
rendered it to afford such relief as justice requires . . . ."). We find
no abuse of that discretion here. Once the court began to confront the
ramifications of the summary judgment order on its ability to craft a
foreclosure decree, it concluded that the implementation difficulties
demonstrated flaws in the summary judgment decision. Thus, we are not
dealing with a situation where the court adjudicates all the issues
necessary for a final judgment, but without grounds fails to issue that
judgment, instead repetitively modifying the preliminary decisions on which
the judgment should be based. See Russell v. Russell, 157 Vt. 295, 300,
597 A.2d 798, 801 (1991). "[W]e will not require a judge to perpetuate
error or take a more roundabout way to arrive at an ultimately necessary
judgment...." Morrisseau v. Fayette, 164 Vt. at 363, 670 A.2d at 824
(quoting Kelly v. Town of Barnard, 155 Vt. 296, 307,583 A.2d 614, 620
(1990)).
¶ 12. Plaintiff argues that the trial judge's reversal of the
summary judgment decision was an improper horizontal appeal prohibited by
Economou v. Economou, 133 Vt. 418, 421-22, 340 A.2d 86, 88 (1975). In
Morriseau we overruled Economou's holding that a second judge may not grant
a motion for summary judgment after the first trial judge denied an earlier
motion. 164 Vt. at 364, 670 A.2d at 824. Plaintiff argues that Morrisseau
should not apply where the first judge grants summary judgment. We
disagree. There is no language in Morrisseau that purports to limit the
successor judge's reconsideration authority to prior denials of summary
judgment as opposed to prior grants thereof. Further, we see no principled
reason to distinguish between the two situations, when, as here, the
reversal was of a summary judgement decision intended to resolve only part
of the issues before the court. The concern that the successor judge
should not be "put in error by another judge's ruling," Morrisseau, 164 Vt.
at 364, 670 A.2d at 824, applies equally to both. See E. Air Lines, Inc.
v. Atl. Richfield Co., 712 F.2d 1402, 1405-06 (Temp. Emer. Ct. App. 1983)
(no abuse of discretion in a second judge's reversal of a first judge's
partial grant of summary judgment, based on identical federal rule); United
States v. Desert Gold Mining Co., 433 F.2d 713, 715 (9th Cir. 1970) (same).
¶ 13. We also cannot give controlling effect to plaintiff's argument
that defendants were allowed to raise new arguments in support of their
summary judgment motion after they failed to raise those arguments in
response to plaintiff's motion. We do not believe that defendants waived
the argument that ultimately persuaded the trial court. In their
opposition to plaintiff's motion for summary judgment, they argued that
"equity should demand, that in instances of foreclosure, where the result
would be landlocked property, a right of way by necessity supersedes the
distinction between superior and inferior encumbrances." This is
essentially the argument that persuaded the trial court and persuades us,
as the next section of this opinion indicates. Defendants did predicate
their summary judgment motion in part on a new theory of merger, but the
court rejected this theory.
¶ 14. In any event, we would not hold that waiver prevented the
trial judge's action even if defendants had not preserved their arguments
in their opposition to plaintiff's summary judgment motion. As the
following discussion reflects, this is a complicated issue of first
impression for this Court. The trial court struggled with the issue, sua
sponte raising arguments to which the parties responded. We think that the
potential for systemic abuse of the summary judgment process by the trial
judge's action is minimal, because "[r]outinely, the trial judge refuses to
reconsider refiled motions because of lack of time and discomfort with the
role of reversing the decision of a colleague." State v. Bruno, 157 Vt. 6,
13, 595 A.2d 272, 276 (1991) (Dooley, J., concurring). On the other hand,
accuracy of decisions in difficult cases is promoted when, as in this
context, reconsideration of a prior summary judgment decision was necessary
to a just and comprehensive resolution of the issues before the court. The
interests of justice are thus better served by allowing a second trial
judge to reconsider a prior erroneous grant of summary judgment rather than
by a "rigid application of the Economou rule." Morrisseau, 164 Vt. at 364,
670 A.2d at 824; see also E. Air Lines, Inc., 712 F.2d at 1406 ("A
determination by a second judge that the former presiding judge made
erroneous rulings that will seriously prejudice a party provides a cogent
reason to justify vacating the prior order.") (internal quotation marks
omitted).
¶ 15. Plaintiff's main argument on appeal is that the trial court
erred in granting summary judgment for defendants on the grounds that the
1990 mortgage in this case is junior and inferior to any way of necessity
that may have arisen over Parcel I for the benefit of Parcel II. On review
of a grant of summary judgment, this Court will apply the same standard as
that used by the trial court. Sisters & Bros. Inv. Group v. Vt. Nat'l
Bank, 172 Vt. 539, 541, 773 A.2d 264, 267 (2001) (mem.). "[S]ummary
judgment is appropriate where the record indicates there is no genuine
issue as to any material fact and the movant is entitled to judgment as a
matter of law." Id. Since the material facts in this case are not in
dispute, we are left to decide only whether the trial court's conclusions
of law are correct; accordingly, our review is de novo. See State v.
Longe, 170 Vt. 35, 36, 743 A.2d 569, 570 (1999) (ruling of law by trial
court subject to de novo review in this Court).
¶ 16. A way of necessity is "a fiction of law," Howley v. Chaffee,
88 Vt. 468, 473, 93 A. 120, 122 (1915), that arises when the division and
transfer of commonly owned land results in a parcel left entirely without
access to a public road. See Traders, Inc. v. Bartholomew, 142 Vt. 486,
492, 459 A.2d 974, 978 (1983). In such a case, "the grantee of the
landlocked parcel is entitled to a way of necessity over the remaining
lands of the common grantor or his successors in title." Id. at 491.
Thus, "[t]o 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." Okemo Mountain, Inc. v. Town of Ludlow, 171 Vt. 201,
206, 762 A.2d 1219, 1224 (2000). Our earlier cases described the rationale
for the way of necessity as the implementation of the presumed intent of
the grantor of the landlocked parcel. See Tracy v. Atherton, 35 Vt. 52,
55-56 (1862). Subsequent cases have, however, emphasized the public policy
rationale that "no land be left inaccessible for the purposes of
cultivation." Howley, 88 Vt. at 473, 93 A. at 122; Traders, Inc., 142 Vt.
at 491, 459 A.2d at 979 (" 'Its philosophy is that the demands of our
society prevent any man-made efforts to hold land in perpetual idleness as
would result if it were cut off from all access by being completely
surrounded by lands privately owned.' ") (quoting 2 Thompson on Real
Property § 362, at 382 (1980)). This shift in emphasis is consistent with
the development of the law in other jurisdictions. See J. Simonton, Ways
By Necessity, 25 Colum. L. Rev. 571, 576-77 (1925). Thus, the new
Restatement provision asserts that an easement by necessity
avoids the costs involved if the property is deprived of rights
necessary to make it useable, whether the result is that it
remains unused, or that the owner incurs the costs of acquiring
rights from landowners who are in a position to demand an
extortionate price because of their monopolistic position.
1 Restatement (Third) of Property (Servitudes) § 2.15 cmt. a (2000).
¶ 17. In this case, it is undisputed that a way of necessity arose
over Parcel I for the benefit of Parcel II as a result of First Vermont's
strict foreclosure of the third mortgage on Parcel I and defendants'
failure to redeem, which eliminated defendants' equitable title in Parcel I
and landlocked Parcel II. This is precisely the holding of Traders, Inc.
See Traders, Inc., 142 Vt. at 492, 459 A.2d at 979.
¶ 18. Plaintiff argues, however, that Traders, Inc. does not apply
when additional superior mortgages exist and are thereafter foreclosed. In
such circumstances, she asserts that the priority of the interests in the
land should be determined by the common law rule of "first in time, first
in right." See First Twin State Bank v. Hart, 160 Vt. 613, 613, 648 A.2d 820, 821 (1993) (mem.). She notes that this rule is routinely applied to
easements that come into existence after a mortgage is given so that
foreclosure of the mortgage eliminates the easement. See generally L.S.
Tellier, Annotation, Foreclosure of Mortgage or Trust Deed as Affecting
Easement Claimed In, Over, or Under Property, 46 A.L.R.2d 1197 (1956)
(collecting cases). Here, the 1990 mortgage preexists the foreclosure of
the third mortgage that created the way of necessity, and, as a result,
plaintiff argues, foreclosure of those mortgages should extinguish the way
of necessity if defendants do not redeem.
¶ 19. The trial court disagreed, ruling that the claimed way of
necessity was not junior to the mortgages held by plaintiff and thus not
subject to foreclosure, for three reasons. First, a reservation of
easement must be implied in the granting of the 1990 mortgage because "the
law must charge the parties with foresight of a potential way of necessity,
in the event a foreclosure eventually resulted in a severance of the two
parcels." Second, there is a strong public policy against landlocking
land. Third, plaintiff was attempting to foreclose on collateral that was
not part of the original security agreement. ¶ 20. We agree with the
trial court that defendants will continue to have a way of necessity over
Parcel I for the benefit of Parcel II in the event that the 1990 mortgage
is foreclosed. We believe this result is the necessary consequence of
Traders, Inc.
¶ 21. This is a case of first impression in Vermont, and apparently
elsewhere. Plaintiff argues that we should follow case law from other
jurisdictions holding that a preexisting mortgage has priority over a
later-created way of necessity and thus extinguishes it through
foreclosure. With one exception, however, these cases involve ways of
necessity created by the mortgagor's voluntary transfer of unmortgaged
landlocked property to third parties. See, e.g., Bush v. Duff, 754 P.2d 159, 164 (Wyo. 1988) (easement by necessity extinguished by foreclosure of
mortgage on servient estate granted prior to conveyance that landlocked
dominant estate; citing cases), overruled on other grounds, Ferguson Ranch
v. Murray, 811 P.2d 287 (Wyo. 1991); Penn Mutual Life Ins. Co. v. Nelson,
132 P.2d 979, 981 (Or. 1943) (way of necessity arising after mortgage is
granted on servient estate is subject to foreclosure in later action). The
holding in these cases protects the mortgagee by ensuring that, upon
foreclosure, the mortgagee acquires exactly such title as the mortgagor
owned at the time the mortgage was executed, and no less. Kling v.
Ghilarducci, 121 N.E.2d 752, 757 (Ill. 1954) ("[T]he purchaser at the
foreclosure sale acquires the title as it stood at the date of the
mortgage."); Bush, 754 P.2d at 164 ("A mortgagor is not permitted to create
an easement in mortgaged land paramount to the rights of the mortgagee.").
In other words, the rule prevents the mortgagor from diminishing the
collateral originally given for the loan.
¶ 22. The one exception is Leonard v. Bailwitz, 166 A.2d 451 (Conn.
1960), a case essentially identical to Traders, Inc. As in Traders, Inc.,
the lack of access to the landlocked parcel in Leonard was caused by the
strict foreclosure of the parcel with road access. Id. at 454. Unlike
Trader's, Inc., however, the Connecticut Supreme Court held that the
foreclosure did not create a way of necessity for two reasons. Id. at
454-55. First, the court explained that when the purchase money mortgage
was executed, legal title was conveyed to the mortgagee subject to the
mortgagor's right of redemption should the mortgagee foreclose. Id. at 454.
Consequently, the court held that there was no severance of the parcels at
the time of the foreclosure because the mortgagee already had legal title
and the foreclosure action merely cut off the mortgagor's right of
redemption. Id. Second, the court held that irrespective of the
conveyance of the fee to the mortgagee, because this was a purchase money
mortgage it had priority over claims "arising or attaching through the
purchaser mortgagor." Id. at 455. This second part of the rationale is
essentially the same as that discussed above for situations where the
mortgagor voluntarily transfers the landlocked parcel after the mortgage is
given.
¶ 23. If we were to accept the purchase money mortgage rationale of
Leonard, which is plaintiff's position, we would not allow the foreclosure
of any mortgage on the parcel with road access to create a way of necessity
because in every foreclosure action a mortgagee holds legal title which
precedes in time any way of necessity. Accordingly, all mortgagees could
argue equally that they were entitled to a security unburdened by the way
of necessity because their interest(s) had priority over the foreclosed
party's. In Trader's, Inc., we declined to follow this reasoning and held
that the mortgagee's interest did not have priority over the foreclosed
party's newly created way of necessity-essentially the mortgagee was
treated as a purchaser of the property and its preexisting property
interest was given no effect. In short, to follow Leonard is to overrule
Traders, Inc.
¶ 24. Although we did not explain our holding in Traders, Inc.,
as the court attempted in Leonard, we think that the considerations
discussed by the trial court in this case are paramount. That is, when the
mortgagee took its mortgage covering only a part of the mortgagor's
adjacent property, it must be charged "with foresight of a potential way of
necessity in the event a foreclosure eventually resulted in a severance of
the two parcels." The same can be said of the mortgagees in this case.
Accordingly, the Traders, Inc. rationale requires that we recognize the way
of necessity in this case.
¶ 25. We do not view a rationale that is based on the knowledge of
the mortgagee when the mortgage was created as inconsistent with the
holding of Traders, Inc. that a severance occurred by operation of law when
the mortgagee foreclosed. Nor do we question the Traders, Inc. holding,
which is the main point of theoretical disagreement with Leonard and is
thus central to the decision. We must consider the mortgagees both when the
mortgage was given and when the foreclosure action occurred. We reconcile
the need to look at both points in time in a case involving mortgage
foreclosure in equity, because it is appropriate to look at the knowledge
and expectations of the parties. The first mortgagee knew or should have
known that under Traders, Inc. if the mortgagor defaulted, its foreclosure
would have created a way of necessity. This was the necessary consequence
of taking a mortgage on the property with road access, while leaving the
property without road access unencumbered. It is illogical to increase its
rights because of the presence of junior mortgages.
¶ 26. Although our holding follows from the public policy rationale
for the way of necessity, it is fully consistent with equitable principles.
See Merchants Bank v. Lambert, 151 Vt. 204, 206, 559 A.2d 665, 666 (1989)
("[F]oreclosure actions are equitable in nature and therefore it is proper
for the court to weigh the equities of the situation."). The "first in
time, first in right" rule on which plaintiff relies is, in fact, an
equitable maxim that can be subject to other equitable considerations. See
Beeman v. Cooper, 64 Vt. 305, 307-08, 23 A. 794, 795 (1892). For example,
in a very early decision, this court held that a mortgage securing future
advances gave priority to debts arising after those secured by a second
mortgage, at least where the second mortgagee does not give notice to the
first mortgagee that it will not be subject to the future debts. See
McDaniels v. Colvin, 16 Vt. 300, 306 (1844). As another example, we have
held that a mortgagee that gives up a superior position over an inferior
mortgage by mistake nevertheless retains priority when creating a new,
subsequent mortgage. See Burlington Bldg. & Loan Ass'n v. Cummings, 111
Vt. 447, 453, 17 A.2d 319, 322 (1941). Here, plaintiff's mortgage interest
is subject to a greater equity.
¶ 27. Further, it is entirely consistent with equitable principles
to charge the mortgagee with knowledge that the mortgagor has an interest
that will become a way of necessity on foreclosure. Equity recognizes both
actual and implied, or inquiry, notice. Thus, if a party has "sufficient
facts concerning . . . [another's] interest in the property to call upon
him to inquire, he is charged with such facts as diligent inquiry would
disclose." Black River Assoc., Inc. v. Koehler & Dion, 126 Vt. 394, 399,
233 A.2d 175, 179 (1967); see also Fed. Land Bank v. Pollender, 137 Vt. 42,
46, 399 A.2d 512, 515 (1979). Here, defendants' title to the
now-landlocked land was of record, and a reasonable inquiry would have
shown that its only road access was through the mortgaged property.
Indeed, the obligation of the mortgagee to inquire and learn of the
potential way of necessity is implied in our decision in Traders, Inc. See
William Dahm Realty Corp. v. Cardel, 16 A.2d 69, 71-72 (N.J. Ch. 1940)
(subsequent grantee of land burdened by easement of necessity charged with
notice thereof because examination of land records and inspection of area
would have revealed landlocked character of land in favor of which easement
was implied).
¶ 28. In reaching our holding, we reject plaintiff's position that
by sequencing mortgage foreclosures, mortgagees can create, and then
extinguish, ways of necessity. If the first mortgagee had foreclosed on
its mortgage, it would clearly have created a way of necessity under
Traders, Inc. As we discussed above, we can think of no reason why it is
freed of that way of necessity because the third mortgagee foreclosed
first. Again, we emphasize that the primary rationale for the way of
necessity is the public policy against having land lay idle because of lack
of access. See Simonton, supra, 25 Colum. L. Rev. at 602 ("[T]here have
been very few cases where the owner of landlocked land has been unable to
get an easement by necessity."). Allowing sequencing of mortgage
foreclosures alone to defeat the way of necessity wholly undermines this
public policy.
¶ 29. We also reject plaintiff's argument that defendants can
adequately protect their interests through their right to redeem. If we
were to follow plaintiff's logic and hold that the way of necessity creates
only an equity of redemption, the right to redeem is of limited value.
Defendants cannot redeem their way of necessity without also redeeming the
legal title to the land and paying the outstanding mortgage indebtedness.
See Restatement (Third) of Property (Mortgages) § 6.4 cmt. b (2000) ("The
mortgagee is not obligated to discharge the mortgage, or to give it up by
subrogation, unless it has received payment in full. This includes not
only the principal debt, but all legally enforceable additional charges.").
Of course, if defendants could pay off the mortgages, they would have done
so to retain their legal title to the land, not to protect the way of
necessity. In these circumstances, therefore, the right to redeem to
protect the way of necessity is illusory.
Affirmed.
FOR THE COURT:
_______________________________________
Associate Justice
______________________________________________________________________________
Footnotes
FN1. Although appellant initially brought this foreclosure action based
upon the first and second mortgages held by her - dated July 31, 1987 and
January 5, 1990, respectively - she amended her complaint during the course
of the proceedings to limit the action to the second mortgage.
Accordingly, this opinion concerns only the second mortgage.
FN2. In the trial court's opinion Judge Wesley wrote,
The law's search for justice is always most challenging when the
facts prove to be distinctly beyond the ordinary. This case is no
simple foreclosure action. The byzantine background established
by the circumstances here has guaranteed that the Court's usual
resort to prior precedent would provide but dim illumination on
facts that elude direct comparison to those associated with
previously settled principles.
-------------------------------------------------------------------------------
Meyers v. LaCasse (2002-052)
[Filed 10-Oct-2003]
ENTRY ORDER
SUPREME COURT DOCKET NO. 2002-052
SEPTEMBER TERM, 2003
Nancy L. Meyers } APPEALED FROM:
}
}
v. } Bennington Superior Court
}
James J. and Marie A. LaCasse }
} DOCKET NO. 29-1-99 Bncv
Trial Judge:
In the above-entitled cause, the Clerk will enter:
Appellant's motion to clarify that this Court's September 5, 2003
opinion applies only to the second mortgage that is the subject of the
foreclosure action is granted. The opinion is revised and reissued as
follows: (1) footnote one in 1. is added; and (2) the phrase "the first
and second mortgage" is replaced by the phrase "the 1990 mortgage" in 18.,
19., and 20.
BY THE COURT:
_______________________________________
Jeffrey L. Amestoy, Chief Justice
_______________________________________
John A. Dooley, Associate Justice
_______________________________________
Denise R. Johnson, Associate Justice
_______________________________________
Marilyn S. Skoglund, Associate Justice
_______________________________________
Frederic W. Allen, Chief Justice (Ret.)
Specially Assigned
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