MacDonough-Webster Lodge No. 26 v. Wells

Annotate this Case
MacDonough-Webster Lodge No. 26 v. Wells (2002-103); 175 Vt. 382; 834 A.2d 25

2003 VT 70

[Filed 01-Aug-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 70

                                No. 2002-103


  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
    Plaintiff-Appellant.

  Robert J. Perry of Perry, Schmucker & Goldsborough, South Burlington,
    for Defendants-Appellees.
   

  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
  Masons' driveway.

          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
  different rationale.
   
       ¶  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
  State Papers).
        
       ¶  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[1]-[2], 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
  statutes.").

       ¶  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
  encroachments.   

       ¶  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.
  (FN2)  

       ¶  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
  other events.

   
       ¶  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
  reversed. 
   
       ¶  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[5][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:


                                       _______________________________________
                                       Associate Justice


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                                  Footnotes


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.