MacDonough-Webster Lodge No. 26 v. Wells (2002-103); 175 Vt. 382; 834 A.2d 25
2003 VT 70
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
2003 VT 70
MacDonough-Webster Lodge No. 26, Supreme Court
Free & Accepted Masons
On Appeal from
v. Chittenden Superior Court
Michael and Laurie Wells and October Term, 2002
Mark and Tammy Denison
Ben W. Joseph, J.
George T. Faris, IV of Law Offices of George Faris, IV, Shelburne, for
Robert J. Perry of Perry, Schmucker & Goldsborough, South Burlington,
PRESENT: Amestoy, C.J., Dooley, Morse (FN1), Johnson and Skoglund, JJ.
¶ 1. JOHNSON, J. This dispute arises out of competing claims to
ownership of land at the boundaries of a parcel owned and occupied by
plaintiff MacDonough-Webster Lodge No. 26, Free and Accepted Masons. The
Masons appeal both the trial court's grant of partial summary judgment on
the issue of whether the lodge property qualifies for the charitable use
exception to Vermont's adverse possession statute and the trial court's
decisions on the merits finding that the Masons' neighbors, the Wells and
the Denisons, had acquired certain strips of land located at the boundary
of the Masons' property through adverse possession. We affirm in part and
reverse in part.
¶ 2. The Masons brought a trespass action asking the court for a
declaratory judgment fixing the boundaries of their property to stop
certain uses by their neighbors. Their neighbors filed counterclaims
contending that they have acquired title to some of the Masons' land by
adverse possession. The Masons moved for partial summary judgment, arguing
that 12 V.S.A. § 462, which exempts lands held "for a public, pious or
charitable use" from claims of adverse possession, applied and shielded the
Masons' property against their neighbors' claims. The neighbors also filed
motions for partial summary judgment. The lower court found that § 462 was
not triggered by the Masons' use of the lodge property, and granted partial
summary judgment to the neighbors. Following a hearing on the merits, the
trial court held that the Masons' neighbors had established, through
adverse possession, title over several strips of land at the boundaries of
their property and acquired a prescriptive easement for the use of the
I. The Exemption for "public, pious, or charitable use"
¶ 3. We begin by considering the threshold issue of the application
of the charitable use exception to the Masons. We review the Masons'
appeal from the superior court's grant of partial summary judgment de novo.
Summary judgment is granted only where there are no genuine issues of
material fact and the movant is entitled to judgment as a matter of law.
Bacon v. Lascelles, 165 Vt. 214, 218, 678 A.2d 902, 905 (1996). "[T]he
nonmoving party is to be given the benefit of all reasonable doubts and
inferences." Murray v. White, 155 Vt. 621, 628, 587 A.2d 975, 979 (1991).
We agree with the trial court that 12 V.S.A. § 462 does not protect the
Masons' property from adverse possession claims, but we apply a slightly
¶ 4. In rendering its decision on the cross motions for summary
judgment, the lower court relied on our holding in Jarvis v. Gillespie, 155
Vt. 633, 641-44, 587 A.2d 981, 987-88 (1991). In Jarvis, we considered
whether 12 V.S.A. § 462 automatically applies to any parcel of land owned
by a municipality, no matter whether the land was open for a public use.
We held that under some circumstances a fact finder could determine that a
municipal property is not "given to a public use" and in such case, the
land would not be exempt by § 462 from a claim of adverse possession. Id.
at 642-43, 587 A.2d at 987-88. Following Jarvis, the legal question as
framed by the trial court in the case at bar became whether the Masons'
primary use of their property benefitted the public, such that the land
could be considered "given to a public use" in the Jarvis sense. On the
facts alleged by the Masons, the lower court found that although the Masons
use their property for some charitable uses, the principal use of the
Masons' property is to benefit Lodge members, leaving the Masons subject to
adverse possession claims.
¶ 5. We agree with the trial court's conclusion, but because the
rules we enunciated in Jarvis applied to publicly owned property while the
Masons' claim lies under the "charitable use" exception in 12 V.S.A. § 462,
we clarify the relationship between public and charitable uses based on our
interpretation of the statute and its legislative history. Section 462
exempts properties "given, granted, sequestered or appropriated to a
public, pious or charitable use, or to lands belonging to the state" from
Vermont's fifteen-year statute of limitations on ejectment actions,
established by 12 V.S.A. § 501. This Court has interpreted the language of
§ 462 in the context of pious uses and public lands. See Chittenden v.
Waterbury Ctr. Comty. Church, 168 Vt. 478, 485-88, 720 A.2d 20, 25-27
(1998) (upholding "pious use" provision against an establishment clause
challenge); In re .88 Acres, 165 Vt. 17, 19-20, 676 A.2d 778, 780 (1996)
(applying § 462 to property dedicated to use for a town school); Jarvis,
155 Vt. at 642, 587 A.2d at 987 (applying § 462 to municipal lands); Davis
v. Union Meeting House Soc'y, 93 Vt. 520, 526, 108 A. 704, 707 (1920)
(holding that predecessor statute to § 462 exempts lands held for pious use
from susceptibility to adverse possession claims); Hazen v. Perkins, 92 Vt.
414, 420, 105 A. 249, 251 (1918) (applying predecessor statute to § 462 to
public waterways). Application of § 462's "charitable use" language,
however, presents a question of first impression.
¶ 6. When construing a statute, our obligation is to identify and
implement the intent of the Legislature. Brennan v. Town of Colchester,169
Vt. 175, 177, 730 A.2d 601, 603 (1999). In cases where the meaning of the
statute is clear and unambiguous, we apply the plain meaning of the
statute. DJ Painting, Inc. v. Baraw Enters., 172 Vt. 239, 247, 776 A.2d 413, 420 (2001). In cases where the plain meaning of the words is not
obvious, we look to the "whole of the statute and every part of it, its
subject matter, the effect and consequences, and the reason and spirit of
the law." Sagar v. Warren Selectboard, 170 Vt. 167, 171, 744 A.2d 422, 426
(1999) (internal quotations omitted). We favor interpretations of statutes
that further fair, rational consequences. See Braun v. Bd. of Dental
Exam'rs, 167 Vt. 110, 117, 702 A.2d 124, 128 (1997) (statutes construed
with presumption "that the Legislature does not intend an interpretation
that would lead to absurd or irrational consequences"). In circumstances
where the purpose and significance of a statute are unclear, we look to the
statute's legislative history to "shed light" on its meaning. Sagar, 170
Vt. at 172, 744 A.2d at 426; see also Brigham v. State, 166 Vt. 246,
257-65, 692 A.2d 384, 391-95 (1997) (reviewing the "specific historical and
legal origins" of the right to education in Vermont).
¶ 7. Section 462 dates back to the so-called quieting act of 1785,
passed to address the widespread problem of defective land titles held by
early Vermont settlers. 3 Records of the Governor and Council of the State
of Vermont 341 (E. Walton ed., 1875) (hereinafter 3 Records of the Governor
and Council). The act set up a remedy whereby those with legal title had
to pay for the land improvements made by ejected settlers. See "An Act for
Settling Disputes Respecting Landed Property," June 17, 1785, reprinted in
14 State Papers of Vermont 17-20 (J.A. Williams ed., 1966) (hereinafter 14
¶ 8. We have not been able to identify any records discussing why
the legislature of 1785 chose to include the following exception to the
rules for the resolution of conflicting land claims: "[p]rovided always . .
. that this act shall not extend to any persons settled on Lands granted or
sequestered for public, pious, or charitable uses." Id. at 20. This
exemption clause survives today in 12 V.S.A. § 462. The Vermont
formulation is a variation on the traditional common law rule that protects
public landowners at all governmental levels against adverse possession
claims. See In re .88 Acres, 165 Vt. at 19-20, 676 A.2d at 780 ("Section
462 . . . 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.") (citations omitted); 16 R. Powell, Powell on
Real Property, § 91.11-, at 91-78 to 91-83 (M. Wolf ed., 2001)
(providing an overview of the common law prohibition on adverse possession
against governmental entities). This case requires us to examine the
relationship between the traditional common law "public use" exemption and
§ 462's "charitable use" clause.
¶ 9. An 1866 Missouri law adopted the "public, pious, and
charitable" language from Vermont's quieting act. See Dudley v. Clark, 164 S.W. 608, 612 (Mo. 1914) (noting that the statutory language came from
Vermont's law). The Missouri version provides that "[n]othing contained in
any statute of limitations shall extend to any lands given, granted,
sequestered or appropriated to any public, pious or charitable use, or to
any lands belonging to this state." Mo. Rev. Stat. § 516.090 (2002).
Because of the parallel language, the Court may properly consider the
Missouri Court's construction of the statute. See State v. Weller, 152 Vt.
8, 13, 563 A.2d 1318, 1321 (1989) ("Where there are similar statutes in
other states, we look for guidance in the interpretations of those
¶ 10. We find the Missouri Supreme Court's explanation of the policy
behind their version of the law particularly persuasive. In Dudley v.
Clark, the court noted:
Prior to [the enactment of § 516.090,] this state had, through its
statutes, adopted the public policy of allowing the limitations to
run against the state and municipalities. It was found to be a
ruinous public policy, for under it school lands, roads, parks,
streets, etc., were lost to the state and public through the
laches or ignorance of the public or of officials representing it.
Is it not learned at the fireside that what is everybody's
business is nobody's business?
164 S.W. 608, 612 (Mo. 1914). Missouri courts have echoed this reasoning
in contemporary cases. See Empire Dist. Elec. Co. v. Gaar, 26 S.W.3d 370,
376 (Mo. Ct. App. 2000) ("[T]he rationale behind the enactment of § 516.090
was to protect against the loss of public lands due to the carelessness or
oversight of the people charged with protecting the public's interests.");
Reardon v. Newell, 77 S.W.3d 758, 763 (Mo. Ct. App. 2002) (citing Empire
for same proposition). While these cases did not specifically invoke the
"charitable use" provision of the law, we think that Missouri case law
places an appropriate emphasis on the principle that the "public, pious,
and charitable use" exception is designed to protect land that has been
dedicated for the benefit of an indefinite segment of the public. Land
qualifying for the exception lacks the protection of a discrete individual
or group's long term interest in guarding the property against
¶ 11. Given this emphasis on ensuring that adverse possession law
does not infringe upon public benefit, the case law developed to
effectuate the property tax exemption for "public, pious, or charitable
uses" provides a useful analytical framework for determining the
appropriate application of § 462. Section 3802(4) of Title 32 provides an
exemption from property taxes for "[r]eal or personal estate granted,
sequestered or used for public, pious, or charitable uses." The policies
served by the two exemption laws are strikingly similar. Section 462
provides an exception from the typical application of adverse possession
statutes where such laws would otherwise tend to undermine efforts to
maintain property in public use. Similarly, the § 3802(4) exemption was
designed for the "support of schools and churches believed necessary for
the encouragement of settlement in colonial . . . Vermont." Am. Museum of
Fly Fishing, Inc. v. Town of Manchester, 151 Vt. 103, 106-07, 557 A.2d 900,
902 (1989) (quoting Brattleboro Child Development Inc. v. Town of
Brattleboro, 138 Vt. 402, 405, 416 A.2d 152, 154 (1980)); see also
Broughton v. Town of Charlotte, 134 Vt. 270, 272-73, 356 A.2d 520, 522
(1976) (discussing the policy behind § 3802(4)). Both laws encourage
public uses by preventing the normal action of property law from
interfering with property uses that benefit a wide spectrum of citizens.
¶ 12. Legislative history provides additional support for our
decision to harmonize our interpretation of § 462's charitable use
exemption from adverse possession with § 3802(4)'s charitable use exemption
from taxation. The legislature originally enacted provisions providing tax
and adverse possession exemptions for "public" lands on the same day: June
17, 1785. (FN3) The quieting act dealing with adverse possession has
already been discussed at ¶ 7 above. The state's first law exempting
public lands from property taxation, the antecedent to § 3802(4), was
titled "An Act Prohibiting the Taxing [of] Public Lands." See 14 State
Papers, supra, at 14-15. The law stated that "all Lands granted for public
or pious uses as well as public grants within this State, while remaining
for such use or uses shall be (and are hereby declared) free from taxation
of every kind whatever . . . ." Id. In 1787, the legislature incorporated
the same "public, pious, or charitable" language used in the quieting act
into the tax exemption statute, where it is currently codified in §
3802(4). (FN4) The overlapping language, date of passage, and policy
concerns, taken together, provide convincing evidence that the Legislature
intended the two exemptions from the typical legal treatment of property,
one for taxation and one for adverse possession, to accomplish similar
purposes. In determining what test we will use for the "charitable use"
exception contained in § 462, we will therefore look to the tests we have
developed for determining whether an entity qualifies for the "charitable
use" exemption from property tax liability.
¶ 13. To qualify for tax exemption under § 3802(4), a property must
meet the three criteria laid out in Am. Museum of Fly Fishing, 151 Vt. at
110, 557 A.2d at 904. First "the property must be dedicated
unconditionally to public use." Id. Second, "the primary use must
directly benefit an indefinite class of persons who are part of the public,
and must also confer a benefit on society as a result of the benefit
conferred on the persons directly served." Id. (emphasis added). Third,
"the property must be owned and operated on a not-for-profit basis." Id.
¶ 14. Without reaching the other two requirements, we hold that the
Masons' property fails to meet the second criteria. Even when viewed under
the summary judgment standard-supplying all reasonable inferences in favor
of the nonmoving party-the facts alleged by the Masons fail to establish
that the primary use of the Lodge property benefits an indefinite class of
persons. According to their responses to interrogatories included in the
record, the Masons are a fraternal organization. Their mission is to "make
good men better citizens, parents, moral people, and generally improve
them." The Lodge building is used by the Masons and Eastern Star (the
women's counterpart to the Masons) for events such as meetings, lectures,
rituals, and dinners. It is regularly used only by those two groups,
approximately once a month. Non-members are not allowed at regular
meetings, but do attend educational meetings, as well as some dinners and
¶ 15. At some monthly meetings, Lodge members vote on monetary or
in-kind donations to people in need, or to charities. Although the Lodge
does not keep a record of its charitable activities, their answers to
interrogatories mentioned some recent charitable involvement: in-kind
contribution of items for sale at a flea market, with proceeds to the
Jericho Food Shelf; a spaghetti dinner, with proceeds to benefit a person
in need; cooking and serving lunch at the Jericho's annual Town Meeting;
and helping care for the town cemetery.
¶ 16. The primary use of the Lodge property is to benefit the
Masons-a distinctly definite class of persons. No evidence in the record
suggests that the Lodge was at any time used primarily for a charitable
purpose. (FN5) The property is used for the Masons' monthly meetings aimed
at the moral improvement of the membership. Although a portion of these
meetings is devoted to planning a program of charitable actions, and the
Masons' charitable activities are admirable, the primary use of the Lodge
property for private meetings of a fraternal club cannot be found to
benefit an indefinite segment of the public at large, and thus the Lodge
property cannot qualify for an exemption from adverse possession under §
462. In so holding, we recognize and effectuate "the rule that exemption
statutes are to be construed most strongly against those claiming the
benefits." Tr. of Vt. Wild Land Found. v. Town of Pittsford, 137 Vt. 439,
444, 407 A.2d 174, 177 (1979).
II. Adverse Possession Claims
¶ 17. Having decided that the Masons' property is subject to the
normal operation of Vermont's law on adverse possession, we turn to the
trial court's decision finding that the Masons' neighbors had acquired
rights to portions of the Masons' property. Adverse possession is a mixed
question of law and fact. N.A.S. Holdings, Inc. v. Pafundi, 169 Vt. 437,
438, 736 A.2d 780, 782 (1999), cert. denied, 528 U.S. 1079 (2000). This
Court views factual findings of the trial court in the light most favorable
to the prevailing party below and will not set aside the findings unless
they are clearly erroneous. Id.; Brown v. Whitcomb, 150 Vt. 106, 109, 550 A.2d 1, 3 (1988). Our review of conclusions of law is, in contrast,
nondeferential and plenary. See State v. Madison, 163 Vt. 360, 371, 658 A.2d 536, 543 (1995) ("review de novo" commonly used to describe
nondeferential on?the?record standard of review appellate courts apply to
lower court determinations regarding questions of law or mixed questions of
law and fact).
¶ 18. We begin our discussion with an overview of the disputed land
holdings. The Masons' property lies on the southern side of Vermont Route
15 in the Town of Jericho. Defendants Michael and Laurie Wells own the
adjacent parcel to the east of the Masons. Defendants Mark and Tammy
Denison own the adjacent parcel west of the Masons. The parcels owned by
the Masons and the Denisons were at one time owned by the Vermont Baptist
Convention. The Masons' lodge structure and parcel served as a church
while the Denisons' house served as a church parsonage.
¶ 19. The Masons' property includes a U-shaped driveway that loops
around their lodge, passing by the Denisons' parcel on the west side and
the Wells' property on the east. Because of its shape, the driveway has
two entrances to Route 15, one to the east of the Lodge and one to the
west. The deeds to both the Mason and Denison properties include an
easement allowing the Denisons to use the western side of the driveway for
ingress and egress. The Denisons, however, like their predecessors in
interest, the Browns, almost always used the east exit from the driveway
because a hill and curve in Route 15 are so close to the western exit that
it is dangerous for drivers to pull out onto the highway from the west end.
The Browns were never given, and never asked for, permission to use the
Masons' eastern driveway.
¶ 20. For years the Masons and their neighbors coexisted amicably.
Unfortunately property disputes arose shortly after the Denisons purchased
the property. Within a few weeks after the Denisons assumed ownership,
various conflicts arose over their use of property claimed by the Masons.
When neighborly discussions failed to resolve the disputes, the Masons
procured the services of surveyor Warren Robenstien. Robenstien's survey
revealed a number of encroachments onto the Masons' land. The Denisons'
barn overlapped the Masons' southern boundary by approximately five feet.
The Denisons' stone wall and flower bed encroached upon the western edge of
Masons' property. The Robenstien survey also determined that the Wells'
barn and fence protruded onto the eastern edge of the Masons' lot.
¶ 21. The Masons filed a trespass suit against both neighbors.
They sought declaratory relief as to the property boundaries as well as the
existence of easements across their eastern driveway. The Denisons and
Wells counterclaimed for adverse possession of the disputed land and for
prescriptive easements for the use of the eastern driveway. They hired a
different surveyor, Mark Ward, and his survey revealed slightly different
property lines. For purposes of this appeal, the place where Ward's survey
differed materially from the Robenstien survey was the eastern edge of the
Mason property, which Robenstien placed farther east than Ward. The
Robenstien survey had shown that the Wells' barn on the east encroached
slightly on the Masons' land, and that a fence between the Wells' and
Masons' properties actually ran on the Mason property; the Ward survey
depicted the property line such that the fence and the barn were located on
the Wells' property. The trial court found that the Ward survey
"accurately and correctly depicts the boundaries of the Wells lot."
¶ 22. The Masons' first assignment of error is that the trial court
ignored Robenstien's survey and made no findings of fact to support its
conclusion of law designating Ward's survey as correct. Because the
discrepancies between the two surveys presented a question of fact
requiring the court to weigh the credibility of two expert witnesses, our
standard of review is to determine whether the court's finding of fact is
supported by the record and whether those findings reasonably support its
conclusions. Omega Optical, Inc. v. Chroma Tech. Corp., __ Vt. __ , __,
800 A.2d 1064, 1069-70 (2002). As we have held:
When evidence conflicts, the credibility of witnesses, the weight
and sufficiency of evidence, and its persuasive effect are matters
accorded to the exclusive determination of the trier of fact. If
the record contains any credible evidence that fairly and
reasonably supports the findings, the trial court's ruling must
stand even though inconsistencies or substantial evidence to the
contrary may exist.
Lawrence v. Pelletier, 154 Vt. 29, 33, 572 A.2d 936, 939 (1990) (citations
omitted). During trial on this matter, Ward testified extensively about
the basis for his survey and the reasons that he believed his results were
accurate. We conclude that there is ample evidence in the record to
support the trial court's finding that the Ward survey accurately depicts
the boundary between the Wells and the Masons' respective properties,
despite Robenstien's conflicting testimony.
¶ 23. The Masons' second assignment of error concerns a fifteen
foot strip awarded to the Denisons along the southern boundary of the
Masons' property. The court awarded this land to the Denisons on the basis
that the Denisons' barn encroached on the Mason property by five feet, and
that the Browns, the Denisons' predecessors, had used the area in front of
the barn for parking and thus acquired title through adverse possession.
¶ 24. The trial court correctly stated the relevant law on adverse
possession: "[t]o achieve title through adverse possession, a claimant must
demonstrate that possession of land was open, notorious, hostile, and
continuous throughout the statutory period of fifteen years." Pafundi, 169
Vt. at 440, 736 A.2d at 784 (1999). The Masons contend that the trial
court's finding of fact that the Browns' use of the parking area had been
continuous overlooked the fact that the Masons had also continually used
the property. The Masons emphasize uncontradicted testimony showing that
the Masons had always used the fifteen foot strip at the southern edge of
their property for parking during their meetings, including testimony to
this effect from Mark Denison. The Masons argue that their regular usage
interrupted the Browns' use of the parking area and rendered the trial
court's finding that the Browns' use was continuous erroneous. We agree.
"It is presumed that the use of land by one who has record title is the
exercise of his right to enjoy it, and such use interrupts the continuity
of adverse possession by another." Harlow v. Miller, 147 Vt. 480, 483, 520 A.2d 995, 998 (1986); see also Rueda v. Kuban, 133 Vt. 584, 586, 349 A.2d 907, 908 (1975) ("[U]se by the record owner during the period interrupts
the continuity of possession necessary . . . ."). A person can gain title
by adverse possession even without the intention of taking land not
belonging to him "so long as he does intend to exclude all others." Ganje
v. Schuler, 659 N.W.2d 261, 266 (Minn. Ct. App. 2003) (internal citation
and quotation omitted). The trial court's failure to take into account
uncontroverted evidence showing that the Masons had used the parking area
was clearly erroneous. This is not a case where the Denisons have planted
their flag on the land and left it unfurled, without retreating in their
claim to it. See Pafundi, 169 Vt. at 444, 736 A.2d at 787; Barrell v.
Renehan, 114 Vt. 23, 29, 39 A.2d 330, 333 (1944) (claimant must "unfurl his
flag on the land, and keep it flying" to give the owner notice of
occupancy). We find that viewing the evidence in the light most favorable
to the Denisons, who prevailed below, we cannot uphold the trial court's
decision granting the Denisons' title to the fifteen foot parking area in
front of the barn. There is no evidence challenging the Masons' regular
use of the parking area. The statutory period for adverse possession for
this parcel has not begun because the Masons have continuously used the
land in question. The trial court's holding that the Denisons have
acquired title to the five foot encroachment made by their barn into the
Masons' property is upheld, but its determination that the Denisons had
also obtained title to the remaining portion of the parking strip is
¶ 25. The Masons' third assignment of error concerns a strip of
land on the western side of the Masons' property that the trial court found
had been acquired through adverse possession by the Denisons. In 1953 and
1954, the Browns built a stone wall along what they believed to be a
portion of the eastern boundary of their property and installed a flower
bed to the west of that wall. The wall was actually several feet inside
the Masons' property. The Browns maintained the flower bed near the wall
until the Denisons bought the property in 1998. In 1963, Gerald Brown
became a Mason, and he performed routine maintenance on the Masons'
grounds, including taking care of the Masons' lawn and planting numerous
trees, until he sold the property to the Denisons in 1998. The trial
court's order grants the Denisons title to not only the flower garden
separated from the Masons' property by the stone wall, but extends the area
acquired by the Denisons through adverse possession all the way up to Route
15, drawing a straight north-south axis from the stone wall to the end of
the Denisons' property. Most of the area north of the wall included in the
trial court's order consists of gravel driveway subject to an existing
deeded easement to the Denisons' property.
¶ 26. The Masons contend that the trial court's findings of fact do
not support its conclusion of law that this strip was obtained by the
Denisons because there is no finding that the Browns' use of the strip was
hostile to the Masons' claim of ownership, and therefore the Denisons have
not proved an essential element of their claim for adverse possession of
the strip. We agree and reverse, allowing the Masons to retain ownership
of the entire western strip of the lodge property.
¶ 27. We discuss separately the northern portion of the strip,
consisting mainly of the gravel driveway, and the southern portion of the
strip, consisting of the flower bed behind a stone wall. The northern part
of the strip is covered by an existing deeded easement to the Denisons'
property allowing the Denisons to use the driveway to access the road. The
trial court offers no explanation for its decision granting this strip to
the Denisons, and we can find none. Any use the Denisons made of this
strip would have been pursuant to their deeded easement. No use of this
strip alleged by the Denisons was incompatible with the use of the strip by
the record title holders, the Masons. "[I]f a claimant's use of the
property is shown to be permissive, then he cannot acquire title by adverse
possession." Hovendick v. Ruby, 10 P.3d 1119, 1122 (Wyo. 2000). Moreover,
when possession has begun with permission of the true owner, "such
possession cannot acquire the character of adverse possession until there
has been some subsequent act demonstrating open disavowal of the owner's
title." 16 R. Powell, Powell on Real Property, § 91.05[a], at 91-30 (M.
Wolf ed., 2001) (emphasis in original). We find no evidence in this record
tending to show that the Denisons took any act regarding the northern part
of the western strip that could be seen as disavowing the Masons' title.
¶ 28. The situation in the southern portion of the western strip,
the part upon which the Browns had built a stone wall and tended a flower
garden, is somewhat different, but again the trial court's conclusion that
the Denisons established ownership of the strip through adverse possession
is not supported by the trial court's findings. Before considering the
issue of the flower garden, the trial court held that "defendants' claim to
the entire lawn around the [Masons'] property cannot stand because the
[Masons] ha[ve] shown that the Browns had permission to maintain the lawn."
The trial court apparently distinguished the walled-off garden from the
rest of the lawn on the basis that the Browns' act of building the wall was
sufficient to put the Masons on notice of their claim to ownership of the
flower garden area. Marking a claim to land with a fence is an indication
of an intent to possess which, if combined with other acts of possession,
can establish the presumption that land is held adversely up to the fence.
See Pafundi, 169 Vt. at 441-42, 736 A.2d at 785 (recognizing that marking
claim to land with a fence has same effect as proceeding under color of
title; that is, it "extends acts of possession on any part of the land to
the boundary so marked"); Hovendick, 10 P.3d at 1123 (noting that
occupation of land under the mistaken belief that a fence marks a boundary
of the land establishes presumption of adverse possession but
distinguishing a boundary fence from a fence of convenience and holding
that a fence of convenience creates a permissive use that cannot change
into adverse title). In this case evidence in the record rebuts the
presumption of adverse possession. The court found that "[f]rom 1963 until
1998, Mr. Brown mowed the [Masons'] lawn and helped to maintain the grounds
of the [Masons'] property." The Masons could easily have assumed that the
maintenance of the garden area was simply part of Mr. Brown's work as
groundskeeper. Under these circumstances, despite the existence of the
stone wall, the evidence was not sufficient to establish the element of
hostility required for an adverse possession claim to succeed.
¶ 29. The final issue on appeal is the trial court's grant of a
prescriptive easement for use of the western part of the Masons' driveway.
The trial court found that the Wells have acquired a prescriptive easement
to use this part of the driveway for delivery vehicles that bring fuel oil
and propane to their home, and that the Denisons have acquired a
prescriptive easement giving them the right "to use the [Masons'] driveway
for all types of vehicle traffic including, but not limited to, cars and
trucks." The Masons do not appeal the part of the order granting a
prescriptive easement to the Wells. They claim, however, that the trial
court's findings were insufficient to award a prescriptive easement to the
Denisons for all types of vehicles and that the Denisons' easement should
be limited to personal passenger vehicles. We cannot agree with the
Masons' characterization of the trial court's findings and affirm. The
trial court found that the Browns used the driveway "for all types of
vehicles including, but not limited to, cars, trucks, horse trailers, and
hay wagons." This finding is adequately supported by the record. The
Browns' usage satisfied the fifteen year period of prescription and is
sufficient grounds for the trial court's award.
The parts of the trial court's orders regarding the border between the
Wells' and the Masons' properties and the Denisons' prescriptive easement
over the western part of the Masons' driveway are affirmed. The parts of
the trial court's order finding that the Denisons had acquired strips of
land to the west and south of the Masons' property are reversed except that
part of the trial court's order recognizing the Denisons' claim to the 5
foot strip of property to the south of the Masons upon which their barn is
located. The Denisons should file amended copies of Exhibit 25 showing the
boundaries of their property in accordance with this opinion.
FOR THE COURT:
FN1. Justice Morse was present when the case was submitted on the briefs
but did not participate in this decision.
FN2. This emphasis on the "public benefit" aspect of the charitable use
exception can also be derived applying the canon of construction "noscitur
a sociis," meaning roughly, "it is known by its associates," to the phrase
"public, pious, and charitable." By this approach, our construction of the
term charitable is colored by our understanding of the term public as used
in § 462. See Parks' Adm'r v. Am. Home Missionary Soc'y, 62 Vt. 19, 25, 20 A. 107, 108 (1889) (explaining the application of noscitur a sociis as
seeking "the meaning from the context, and by the light of what precedes or
follows"); see also Gutierrez v. Ada, 528 U.S. 250, 255 (2000) ("The maxim
noscitur a sociis . . . while not an inescapable rule, is often wisely
applied where a word is capable of many meanings in order to avoid the
giving of unintended breadth to the Acts of Congress.") (quoting Jareki v.
G.D. Searle & Co., 367 U.S. 303, 307 (1961)).
FN3. Presumably because of its highly controversial subject matter, the
quieting act went through a series of enactments, repeals and re-enactments
in the pre-statehood era. See generally 3 Records of the Governor and
Council, supra, at 341-56 (discussing the history of the quieting acts).
The first version, passed October 27, 1781, which did not contain an
exemption for "public" uses, was repealed by a February, 1783 resolution
prohibiting "Trials for Titles of Lands that have been possessed by virtue
of any Conveyance for more than a term of five Years before the passing
hereof." 3 Records of the Governor and Council, supra, at 344-45; "An Act
to Enable Persons Who Have Entered And Made Improvements on Lands . . . ,
Oct. 27, 1781, reprinted in 13 State Papers of Vermont 67-68 (J.A. Williams
ed., 1965); Journal of the General Assembly of the State of Vermont,
February 27, 1783, reprinted in 3 State Papers of Vermont 180 (1925)
(resolving to prohibit land trials). Betterment bills were taken up in
both the February and October 1784 sessions but failed to pass each time.
3 Records of the Governor and Council, supra, at 345-49. The proposed
October 1784 bill, which was published, along with a preamble explaining
its purpose, in Vermont newspapers, appears to have contained the first
instance of an exception for public, pious, or charitable uses. See
Vermont Gazette, Dec. 6, 1784, at 5. However, the enacted version of the
law including that language passed on June 17, 1785. "An Act for Settling
Disputes Respecting Landed Property," June 17, 1785, reprinted in 14 State
Papers, supra, at 17, 20. After the June 1785 Act was published in Vermont
newspapers, the Legislature re-enacted it with minor changes-probably in
response to their failure to submit the act to the people before its
original enactment in June of that year. "An Act for Settling Dispute
Respecting Landed Property," Oct. 27, 1785, reprinted in 14 State Papers,
supra, at 64-67.
FN4. Compare "An Act Prohibiting the Taxing [of] Public Lands," June 17,
1785, reprinted in 14 State Papers, supra, at 14-15 (without language
matching that of § 3802(4)), with "An Act Directing the Listers in their
Office and Duty," Oct. 26, 1787, reprinted in 14 State Papers, supra, at
380, 383-84 (incorporating the same "public, pious, or charitable" language
as the current law). Interestingly, a March 1787 act repealed virtually
all of the laws passed between 1779 and 1786 except for a token few. Among
the laws kept in force were the quieting act and the law exempting public
lands from taxation. See "An Act to Repeal the Several Statutes Therein
Mentioned or Described," Mar. 10, 1787, reprinted in 14 State Papers,
supra, at 337-339.
FN5. Because we find nothing in the record that shows that the Lodge has
ever been used primarily for a charitable purpose, we need not consider
whether § 462 would apply if the Lodge were being used primarily for a
charitable purpose at the time this litigation commenced but had not been
so used for fifteen years before the litigation, or had been used in a
manner that would meet the charitable use standard at some time within the
fifteen year period claimed as prescriptive but was not in such charitable
use at the time the litigation commenced.