In re Estate of Harding

In re Estate of Harding (2003-156); 178 Vt. 139; 878 A.2d 201

2005 VT 24

[Filed 18-Feb-2005]


       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.


                                 2005 VT 24

                                No. 2003-156


  In re Estate of Caleb Harding	                 Supreme Court

                                                 On Appeal from
                                                 Chittenden Superior Court

                                                 October Term, 2004


  Matthew I. Katz, J.

  Francis J. Thornton, Charlotte, and Joseph F. Obuchowski, Burlington, for
    Plaintiff-Appellant.

  Robin Ober Cooley of Pierson Wadhams Quinn Yates & Coffrin, Burlington, for 
    Defendants-Appellees.


  PRESENT:  Dooley, Johnson, Skoglund and Reiber, JJ., and 
            Allen, C.J. (Ret.), Specially Assigned

        
       ¶  1.  JOHNSON, J.  This dispute involves the interpretation of deed
  language "[e]xcepting and reserving" a family burial plot from a land
  conveyance in 1837.  Plaintiff is the original grantor's oldest living heir
  and is related, across the generations, to the person buried at the
  gravesite.  Defendants own property that completely surrounds the disputed
  gravesite, and their chain of title includes the deed language referencing
  the burial plot.  The Chittenden Probate Court concluded that a deed with
  language pertaining to a family burial plot does not retain a grantor's fee
  interest in the plot when there is (1) no description of its size or its
  metes and bounds and (2) no indication that the original grantor or his
  heirs ever recorded a separate deed for the burial plot.  The probate court
  ultimately concluded that the language created an easement in the grantor's
  heirs for access to, and maintenance of, the grave.  Plaintiff appeals.  We
  affirm.

       ¶  2.  The probate court found the following facts that are not
  appealed by plaintiff.  The Reverend Doran B. Harding, son of Caleb Harding
  and plaintiff's great-great-granduncle, died and was buried on Caleb
  Harding's farm in Charlotte.  The following year, Caleb Harding sold his
  114-acre farm to Williams Barton.  The deed for this transaction contained
  the following provision whose  meaning is disputed here: "Excepting and
  reserving therefrom the yard or enclosure on said land where Doran B.
  Harding was interred."  The deed did not describe the burial plot's size or
  its boundaries.  Other than the headstone, there is no delineation of the
  gravesite.  There is no record of a separate deed for the gravesite or of
  any attempt to transfer it as a separate piece of property.

       ¶  3.  Defendants Jeffrey and Linda Hanson purchased adjoining
  two-acre parcels of the original Harding farm from the Willard family. 
  Reverend Harding's headstone is located entirely within the boundaries of
  one of their parcels.  After purchasing the property, defendants became
  concerned that the burial plot's presence could affect future resale value. 
  They took preliminary steps to have the reverend's remains removed to a
  local cemetery.  Pursuant to 18 V.S.A. § 5212, the funeral director that
  defendants had enlisted to coordinate the disinterment applied for a permit
  to relocate the reverend's resting place.  The notice of the application
  that appeared in the local newspaper caught the eye of Reverend and Caleb
  Harding's relatives and heirs.  
   
       ¶  4.  Distraught over the potential disruption of Reverend
  Harding's eternal rest, plaintiff contacted defendants to assert her
  interest in the remains.  After negotiations over disinterment broke down,
  plaintiff filed this suit under 18 V.S.A. § 5531(c) seeking, among other
  things, a declaration that Caleb Harding's heirs owned the burial plot in
  fee simple by virtue of the terms of the Harding-to-Barton deed that is
  part of defendants' title chain. (FN1)  As Caleb Harding's oldest living
  relative, plaintiff brought the action on behalf of Caleb Harding's estate
  for the benefit of all his heirs.

       ¶  5.  In the absence of Vermont precedent on this exact issue, the
  probate court looked to decisions in other jurisdictions governing
  conveyances of land with family burial plots located on them.  The probate
  court concluded, and the superior court agreed, that such a transaction
  gives rise to an easement benefitting the grantor and his heirs unless a
  contrary intention and circumstances consistent with the creation of a new
  fee interest in the burial plot are shown.  The court concluded that
  defendants own the burial plot in fee simple subject to an easement held by
  plaintiff and Caleb Harding's other heirs.  The easement entitles the heirs
  to ingress and egress upon defendants' property for the purpose of visiting
  and maintaining the gravesite.   

       ¶  6.  Plaintiff appeals the probate and superior courts' orders,
  claiming that they erred in interpreting the deed language and concluding
  that plaintiff did not have a fee interest in the burial site.  On appeal,
  our review of the courts' conclusions of law is plenary and nondeferential. 
  N.A.S. Holdings, Inc. v. Pafundi, 169 Vt. 437, 438-39, 736 A.2d 780, 783
  (1999).  We agree with the courts' conclusions, and therefore affirm.  
   
       ¶  7.  In resolving this appeal, the only evidence we have before us
  is two one-page deeds that are more than 160 years old.  Plaintiff argues
  that fifteen words in one of those deeds carved out a small fee simple
  estate in the burial plot, although the deed does not delineate exact
  boundaries of that purported fee estate, if ever there were any.  Plaintiff
  asserts that the deed language signified a legal exception from the
  114-acre conveyance.  Defendants counter that classifying the deed language
  as an exception rather than a reservation does not compel the conclusion
  that plaintiff and her fellow heirs hold a fee simple estate consisting of
  the burial "yard or enclosure" that is completely surrounded by defendants'
  property.  They argue that, by itself, the deed language at issue provides
  insufficient evidence upon which the Court could conclude that the parties
  to the original deed recognized a separate fee in the burial yard.  Against
  the background of the common law, and in light of the conduct of the
  parties' predecessors in interest, defendants claim that the Harding heirs
  hold only an easement to access the gravesite and to maintain it in a
  traditional manner.  We agree with defendants.

       ¶  8.  In Nelson v. Bacon, we noted that the terms "reservation" and
  "exception" are often used synonymously in deeds.  113 Vt. 161, 169, 32 A.2d 140, 145 (1943).  In this case, both terms are used conjunctively in
  the original deed.  Therefore, the exception/reservation inquiry focuses
  not on the language used, but on the intention of the parties, the
  circumstances existing at the time the deed was executed, and the subject
  matter of the deed language at issue.  Id.  
   
       ¶  9.  A deed exception takes something out of the conveyance that
  would otherwise pass, while a reservation creates some new right out of the
  thing granted.  Roberts v. Robertson, 53 Vt. 690, 692 (1881).  The property
  interest being excepted, however, will not always be a fee simple estate. 
  Plaintiff cites numerous cases that construe disputed deed language as
  signifying exceptions to the deed conveyances.  In many of these cases,
  however, the interest the grantor excepted was an easement.  Sargent v.
  Gagne, 121 Vt. 1, 9-10, 147 A.2d 892, 898 (1958) (holding that deed
  language was intended as an exception for an easement appurtenant); Nelson,
  113 Vt. at 169, 32 A.2d  at 145 (same); Haldiman v. Overton, 95 Vt. 478,
  481-82, 115 A. 699, 700-01 (1922) (recognizing that original grantor
  intended deed language concerning the use of a well and aqueduct as an
  exception of "an appurtenance to" the property he retained for his use and
  the use of his successors).  One of these cases, Haldiman, presents an
  instructive point of comparison.  In Haldiman, the original grantor
  subdivided a parcel he owned.  A spring located on part of the land being
  conveyed supplied water to his dwelling that was located on part of the
  parcel he was retaining.  We held that the deed language created an
  exception by which the grantor retained an easement in the spring because
  the spring, and the grantor's right to use it, were in existence at the
  time of the grant.  Haldiman, 95 Vt. at 481, 115 A.  at 700; accord Nelson,
  113 Vt. at 170, 32 A.2d  at 145 (distinguishing reservations that are used
  to create new rights and exceptions that are used withhold existing rights
  from a grant).  In supporting her claim that the Harding-to-Barton deed
  contained an exception for the burial yard, plaintiff points out that the
  burial yard, like the well in Haldiman, was in existence at the time of the
  Harding-to-Barton grant.  But as Haldiman illustrates, an exception for an
  existing interest may signify that an easement, not a fee, is being
  withheld from the grant.  

       ¶  10.  An exception may give rise to an "easement in fee," which
  survives after the life of its holder expires, while a reservation without
  words of inheritance creates an easement that terminates upon the death of
  the reserving grantor.  Nelson, 113 Vt. at 170, 32 A.2d   at 145; Smith's
  Ex'r v. Jones, 86 Vt. 258, 260, 84 A. 866, 867 (1912).  Accordingly, Caleb
  Harding's  use of an exception to protect a burial easement would make
  sense here because it would ensure his  heirs the future right to maintain
  his son's grave after he was no longer alive to do so himself.  Thus, while
  we agree that the deed language at issue created an exception from the
  original grant, this conclusion does not help us determine whether the
  interest that plaintiff and her fellow heirs hold in the burial yard is an
  easement or a fee simple estate.   

       ¶  11.  At common law, the establishment of a family burial plot
  created an easement against the fee. fn2)  See, e.g., Aldridge v. Puckett,
  278 So. 2d 364, 366 (Ala. 1973); Haas v.Gahlinger, 248 S.W.2d 349, 351 (Ky.
  1952); Heiligman v. Chambers, 338 P.2d 144, 148 (Okla. 1959).  When the
  person who established the family cemetery conveys the land upon which it
  is located, the bare legal title to that portion will pass subject to the
  easement.  Aldridge, 278 So. 2d  at 366; Heiligman, 338 P.2d  at 148.  The
  easement benefits the person who established the burial plot, and it
  descends to the heirs.  Aldridge, 278 So. 2d  at 366.  The rights created by
  the easement survive until either its originator or the heirs abandon it. 
  Id.  Moreover, at common law, the interred's next-of-kin have the right to
  protect the grave by taking legal action against anyone, including the
  owner of the fee, who would knowingly and wantonly disturb the grave
  without right to do so.  Johnson v. Ky.-Va. Stone Co., 149 S.W.2d 496, 498
  (Ky. 1941).
                                           
       ¶  12.  Though we cannot definitively discern from the evidence
  whether Caleb Harding intended to retain a burial easement or a fee simple
  estate, we can safely say that, at a minimum, Caleb Harding wanted to
  ensure that he and his heirs had access to his son's final resting place so
  they could visit and maintain it in the future.  Nothing more than an
  easement was required to accomplish this purpose.  By creating a common law
  burial easement, Caleb Harding would have ensured the sanctity of his son's
  grave until such time as he or his heirs abandoned it.  Under such an
  easement, the heirs' rights would be those consistent with the use of the
  yard as a gravesite: ingress, egress, and the ability to maintain the area
  around the grave in a traditional manner.  Ownership in fee, however, would
  not limit Harding or his heirs to using the site as a burial plot; as fee
  owners they could put the area to whatever lawful use they saw fit. 
   
       ¶  13.  Defendants argue that plaintiff has not met her burden of
  proving that she and her fellow heirs own that part of defendants' land
  surrounding and including Doran Harding's grave because neither the deed,
  nor any of plaintiff's other evidence, indicates the proper boundary for
  the fee estate she claims.  Specifically, there is no size description or
  metes and bounds indicated in the Harding-to-Barton deed.  They argue that
  the parties to the original deed would have protected their respective
  interests by including a boundary description if they intended to withhold
  the burial yard as a separate fee.  Plaintiff responds by asserting that
  the  deed's vague description of the burial yard is typical of
  contemporaneous "country deeds of the time."  On the record before us, the
  Court is not in a position to test the general validity of this assertion. 
  Nonetheless, the record does contain the Barton-to-Pettibone deed
  pertaining to the same subject matter that was executed only one year after
  the Harding-to-Barton deed.  It contains very specific descriptions of the
  larger property's boundaries, including measurements in rods.  But it
  includes only a spare, general description of the burial yard, referencing
  it simply as the "enclosure where Dorin [sic] B. Harding is buried."
  Moreover, while the Harding-to-Barton deed does not contain metes and
  bounds describing the property being conveyed, it makes clear that a more
  "particular" description of the property is contained in other deeds within
  the title chain.  A general boundary description will ordinarily suffice
  when other deeds that can provide a more precise description of the
  property boundaries are incorporated by reference, but in this case there
  is no evidence that Caleb Harding recorded a separate deed for the burial
  plot.  Thus, we cannot agree that the absence of a boundary description for
  the purported burial yard fee was consistent with prevailing deed practice
  in early nineteenth century Charlotte. 

       ¶  14.  Plaintiff's stronger contention is that no metes and bounds
  description of the burial yard fee was necessary at the time the property
  was originally conveyed because the yard would have been clearly marked by
  a fence to protect the area from grazing cattle.  This fence would have
  given grantor and grantee actual notice of the boundaries.  The excepting
  clause in the Barton-to-Pettibone deed that references an "enclosure where
  Dorin [sic] B. Harding is buried" appears to support the claim that some
  sort of fence once surrounded the burial yard.  The probate court findings
  indicate that no fence or delineation of the burial yard, other than the
  headstone, is apparent at the site now.  Accordingly, there is no way to
  verify that boundary markers existed on the site in the past, much less
  what boundaries they demarcated. 

       ¶  15.  Plaintiff further cites the excepting clause in the
  Barton-to-Pettibone deed as evidence demonstrating Barton's understanding
  that he could not pass title to the burial enclosure because he did not
  receive title to it from Harding.  This evidence is, however, equivocal
  because the language could just as easily be a reference to a burial
  easement.  An easement, like a fee, would have belonged to Caleb Harding
  and his heirs such that Barton would have had no power to transfer it to
  his grantee or to extinguish it for his grantee's benefit.  Therefore,
  Barton might have inserted the language to provide notice of this
  encumbrance on the title. 
   
       ¶  16.  Defendants argue that the subsequent actions of Caleb Harding
  and his heirs do not support plaintiff's claim that Harding retained a fee
  interest in the disputed site because the record contains no evidence that
  Caleb Harding or his heirs ever recorded a separate deed for the gravesite. 
  Harding accepted several deeds when he acquired his fee interests in the
  individual lots that comprised his 114-acre parcel, and then executed a
  deed when he conveyed it away.  It is therefore reasonable to expect that,
  subsequent to the grant to Barton, he would have executed a separate deed
  for the purported fee in the burial plot that had not previously stood
  alone as its own fee estate.  Defendants also point out the absence of
  record evidence that Caleb Harding or any of his heirs tried to transfer
  the fee interest from one generation to the next. 

       ¶  17.  Plaintiff counters that no separate deed was required to
  accomplish Caleb Harding's purpose in retaining the burial yard in fee:
  ensuring that his son's gravesite remained in his family's possession.  She
  argues that Harding would not have needed a deed to pass the property on to
  his other descendants and relatives because the burial yard fee would have
  passed with the rest of his estate at the time of his death, and this
  process would continue from one generation to the next.  She has not,
  however, produced evidence showing that other Harding heirs who may have
  died testate included any reference to the separate fee in their wills. 
  There is no other record evidence that any Harding heir has ever acted as
  if they owned the burial plot in fee. 

       ¶  18.  After reviewing the evidence in this case, it is difficult for
  the Court to ascertain the true intent of the long-deceased parties to the
  original deed.  In the absence of a clearer expression of intent in the
  original deed, we will determine the issue by referencing the common law of
  family gravesites mentioned above.         
   
       ¶  19.  Our review leads us to conclude that plaintiff did not carry
  her burden of proving, by a preponderance of the evidence, the existence of
  the purported fee in the burial yard.  The evidence does indicate that her
  progenitor retained at least a common law burial easement by excepting the
  right to access and maintain the reverend's gravesite from the deed he gave
  to Williams Barton.  The probate court reached the same conclusion and
  entered an order securing plaintiff and her fellow heirs the rights
  attendant to such an easement.  The probate court rejected defendants'
  argument that any such easement has been abandoned.  Defendants have not
  appealed this ruling.  We conclude that, on this record, the probate court
  reached the correct result.       

       Affirmed.
      


                                       FOR THE COURT:



                                       _______________________________________
                                       Associate Justice
     


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                                  Footnotes


FN1.  Plaintiff does not appeal the probate court's adverse decisions on the
  other claims she asserted.

FN2.  Defendant cites Goss v. Congdon, 114 Vt. 155, 40 A.2d 429 (1945), as
  an example of a case where a grantor withheld a burial yard from a grant by
  means of an exception.  The deed language at issue in Goss read as follows:
  "Excepting from the operation of this deed the following reservations and
  easements: Land sold by Lillie S. & Frederick G. Ritchie to Town of
  Wallingford, recorded in Book 21, page 422-and Burying Ground just
  southwest of the dwelling.  Also all growing timber, . . . ."  Id. at 156,
  40 A.2d  at 429.  Goss provides no guidance here because it concerned only
  the status of the timber rights mentioned in the cited passage; the
  interest retained in the "Burying Ground" was not addressed.  Id. at
  156-57, 40 A.2d  at 429-30.  Moreover, because the passage states that
  certain "easements" were excepted from the operation of the deed; it is
  possible that the "burying ground" reference concerned an easement and not
  a fee simple estate.