Sweezey v. Neel

Annotate this Case

Sweezey v. Neel (2004-225); 179 Vt. 507; 904 A.2d 1050

2006 VT 38

[Filed 05-May-2006]

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.

2006 VT 38

No. 2004-225

J. Kent Sweezey Supreme Court

On Appeal from
v. Lamoille Superior Court

Hartley Neel, Virginia Neel and October Term, 2005 Morristown
Landowner's Association

Alan W. Cheever, J.

Robert F. O'Neill and Heather Rider Hammond of Gravel and Shea, Burlington,
for Plaintiff-Appellee/Cross-Appellant.

Christopher D. Roy of Downs Rachlin Martin PLLC, Burlington, for
Defendants-Appellants/ Cross-Appellees.

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

¶ 1. REIBER, C.J. This case concerns a longstanding dispute over
plaintiff J. Kent Sweezey's encroachment upon a deeded easement traversing
his property. Ultimately, the superior court allowed plaintiff to bend the
easement around a new addition to his house and prohibited the easement's
owner from using the right-of-way as an avenue for future development of
the dominant estate. The easement's owner, a landowner's association
comprised of two couples, appeals several aspects of the superior court's
decision. Plaintiff cross-appeals, asking this Court to allow servient
landowners to obtain court approval to unilaterally relocate easements in a
manner that does not unduly burden the dominant estate. We conclude that
the superior court acted prematurely in prohibiting use of the easement as
an avenue for any future development on defendants' adjoining property, but
the court did not err in allowing plaintiff to bend the easement around his
addition. We decline, however, plaintiff's request that we abandon the
general rule that easements cannot be relocated without the consent of both
the servient and dominant landowners.

¶ 2. For the most part, the facts and procedural history of this
case are undisputed. In 1965, William and Marian Bernhard transferred to
themselves and another couple a portion of a large parcel of land that they
had purchased in the 1950s. In consideration of the transfer, the other
couple agreed to construct an eight-acre pond and boathouse on the
property. Earthmoving and other equipment used to construct the pond and
boathouse accessed the conveyed property by way of a shallow portion of a
nearby stream. Out of concerns for potential liability, ownership of the
property was placed in the couples' corporation, Kimibakw, Inc. As part of
the conveyance, the Bernhards deeded to the corporation a fifty-foot-wide
easement over their retained parcel to allow access to the conveyed
property. The easement starts as a single path and then diverges into an
upper and lower fork, forming a "Y" into the dominant estate. (FN1) The
deed conveying the easement does not describe the right-of-way by metes and
bounds.

¶ 3. In July 1978, Kimibakw sold the property to defendant
Morristown Landowner's Association, which was comprised of Virginia and
Hartley Neel and four other couples. Thereafter, the Association's members
and guests used the deeded easement for vehicular and other access to and
from the Association property. In 1988, the Bernhards built a home on
their retained parcel, the servient estate. In doing so, the Bernhards
upgraded as a driveway the first 1100 feet of an access road that was later
ruled to be part of the disputed easement. The Neels initially challenged
the location of utility poles placed near the Bernhards' home, but
eventually dropped that challenge after conferring with Mrs. Bernhard.

¶ 4. In 1997, Mrs. Bernhard sold the servient estate to plaintiff J.
Kent Sweezey. At this point, the Neels and another couple, the Redlichs,
were the only remaining members of the Association. In advance of the
closing, plaintiff had a survey of the property done. The survey, which
was recorded in the town land records, was consistent with a 1977
unrecorded survey with respect to the location of the easement. In 1998
and 1999, plaintiff worked on the upper fork of the easement in the hopes
of converting it into a ski trail. At the same time, he began constructing
an alternative road that would replace the deeded easement. In August
1999, plaintiff met with Mr. Neel to discuss the possibility of the
Association members using the alternative road for ingress and egress to
the Association's property. Plaintiff explained that he was anticipating
building an addition to his house and wanted to reduce the traffic on the
access road running near the house. Mr. Neel indicated that he would
consider using the proposed alternate route.

¶ 5. In November 1999, plaintiff began work on his planned
addition. Shortly thereafter, Mr. Neel telephoned him to complain about
the addition. After telephoning his contractor, plaintiff learned that no
building permit had been obtained. Plaintiff halted the construction and
applied for a permit. In December 1999, Mrs. Neel and the Association's
attorney attended a hearing before the town development review board,
arguing that the permit should not be issued because the proposed addition
would encroach upon the Association's easement. The board responded that
it lacked jurisdiction to establish the location of the easement, but
encouraged the parties to work out a solution to the problem. In response,
plaintiff, his attorney, Mrs. Neel, and the Association's attorney met in
private before returning to the meeting to announce that they had reached
an agreement. The details of the agreement are in dispute, but, at
minimum, they agreed that the Neels would have an engineer inspect the
alternative road in the spring to determine whether it was a suitable
substitute for the deeded easement. The board eventually issued the
building permit, and, in the ensuing months, plaintiff completed
construction of his addition, which came within ten feet of the fifty-foot
easement's centerline.

¶ 6. In late April 2000, plaintiff's attorney sent the Association's
attorney a letter inquiring about a schedule for having an engineer inspect
the alternative road. The following month, the Association's attorney
responded by stating that the Neels were reluctant to hire an engineer
unless the parties could agree that the proposed right-of-way was for
"unlimited access" to the dominant estate. Plaintiff's attorney then
accused defendants of trying to impose new conditions on their agreement to
use the alternative road as long as it proved to be a suitable substitute
for the deeded easement. Plaintiff threatened legal action if an agreement
could not be reached within ten days.

¶ 7. In June 2000, plaintiff filed suit and obtained an ex parte
temporary restraining order preventing the Association from using the
deeded easement. Thereafter, the parties agreed to an interim order
allowing the Association to use the alternative road and upper and lower
forks of the easement but prohibiting vehicular traffic on the upper fork
pending resolution of their cross-motions for a preliminary injunction. In
June 2001, in response to cross-motions for summary judgment on certain
issues, the superior court ruled that the scope of defendants' permissible
use of the easement "includes pedestrians and vehicles of the kind
ordinarily permitted on unpaved public roads in Vermont such as may be
reasonably necessary to access the dominant estate." In its October 2001
ruling on the parties' cross-motions for a preliminary injunction, the
court denied plaintiff's requests for injunctive relief and granted
defendants' request for a preliminary injunction based on its conclusions
that the location of the deeded easement was clearly marked and plaintiff
had encroached upon the easement without obtaining defendants' consent.

¶ 8. In the fall of 2003, following a four-day bench trial before a
different judge, the superior court issued a final decision upholding the
court's earlier rulings with respect to the location of the easement and
denying, for the most part, plaintiff's requests for injunctive relief.
Nevertheless, the court allowed plaintiff to keep his addition intact by
constructing a bend in the easement away from his house up to a distance of
fifty feet. The court also determined that the scope of the deeded
easement did not include its use as an avenue for future development of the
Association's property.

¶ 9. Defendants appeal the superior court's decision, arguing, among
other things, that the trial court erred by relocating the course of the
deeded easement and by restricting the scope of the use of the easement
with respect to future development. Plaintiff cross-appeals, asking this
Court to adopt the position that the owner of a servient estate can, with
court approval, unilaterally relocate a deeded easement not set forth in
metes and bounds, as long as the relocated easement does not frustrate the
use and enjoyment of the dominant estate.

¶ 10. We first consider defendants' argument that the superior
court erred by allowing plaintiff to bend the easement up to fifty feet
from his house rather than requiring him to remove his encroaching
structure. In support of this argument, defendants rely upon two general
principles of property law. The first "is that the owners of both the
dominant and servient estates must consent to relocate an easement." In re
Shantee Point, Inc., 174 Vt. 248, 261, 811 A.2d 1243, 1254 (2002); see
Sargent v. Gagne, 121 Vt. 1, 12, 147 A.2d 892, 900 (1958) ("It is the
general rule that a way, once located, cannot be changed thereafter without
the mutual consent of the owners of the dominant estate."). This rule is
tempered, however, by the accepted notion that mutual consent to a
relocation "may be implied from the acts and acquiescence of the parties."
Sargent, 121 Vt. at 12, 147 A.2d at 900. If the actions of the dominant
estate's owner indicate acquiescence to an easement's changed location, the
dominant estate is equitably estopped from claiming an entitlement to the
former location. Wagoner v. Jack's Creek Coal Corp., 101 S.E.2d 627, 630
(Va. 1958); cf. Mann v. Levin, 2004 VT 100, ¶¶ 25-28, 177 Vt. 261, 861 A.2d 1138 (determining whether facts supported applying doctrine of
equitable estoppel to preclude enforcement of restrictive covenant).

¶ 11. The second general principle relied upon by defendants is
that one who seeks the enforcement of an established legal property right
is entitled to injunctive relief irrespective of the relative hardships of
the parties. See Welch v. Barrows, 125 Vt. 500, 508, 218 A.2d 698, 705
(1966). In the cases cited by defendants, however, we have strictly
applied this general principle in the context of the enforcement of
restrictive covenants. See Mann, 2004 VT 100, ¶ 29 ("Because this case
involves the enforcement of a restrictive covenant, no balancing of
hardships was required."); McDonough v. W.W. Snow Constr. Co., 131 Vt. 436,
441, 306 A.2d 119, 122 (1973) ("Basic to the enforcement of restrictive
covenants is that they are enforceable through the equitable relief
afforded by an injunction."). Indeed, in Welch, we acknowledged that many
courts balance the relative hardships in determining whether to require the
removal of a permanent encroachment onto another's property, but we
declined to do so in that case, which involved a request to enforce a
restrictive covenant. 125 Vt. at 508, 218 A.2d at 705.

¶ 12. Contrary to enforcing restrictive covenants, locating
easements often allows some flexibility in terms of creating a remedy that
is satisfactory to all parties. Although the owner of an easement is
generally entitled to injunctive relief when the servient estate encroaches
upon the easement, see Knudson v. Leach, 142 Vt. 648, 651, 458 A.2d 1140, 1142 (1983) ("If the right-of-way is illegally obstructed, the owner of the
right-of-way is entitled to injunctive relief."), the trial court is not
necessarily confined to requiring the removal of the encroaching structure
irrespective of the extent or impact of the encroachment. Cf. Renaissance
Dev. Corp. v. Universal Props. Group, Inc., 821 A.2d 233, 238 (R.I. 2003)
(stating general rule that continuing trespass entitles owner of easement
to mandatory injunction, but noting that coercive relief may be withheld in
exceptional cases where encroachment causes little or no damage). Further,
as indicated above, acquiescence may equitably estop the owner of an
easement from demanding removal of an encroaching structure.

¶ 13. We conclude that, under the particular circumstances of this
case, the superior court did not err in allowing plaintiff to bend
defendants' easement to avoid having to move a permanent structure that
encroached a few meters onto the original easement. From the beginning of
this dispute, defendants indicated that they would accept, at minimum, a
slight relocation of their easement, as long as they retained a legal right
to an equally suitable right-of-way. At the development review board
hearing, Mrs. Neel made the following statement:

If Mr. Sweezey at some point came up with an alternative which was
as good an access and which everybody agreed to use, that's a
possibility, because we just as soon be more private and they just
as soon be more private. But . . . [w]e have to have legal right
to it just the way we have legal right to this, and we can't give
up this until we have another, and we can't give up this til we're
sure we want another. . . . [D]epends what it's like. So we'd
have to talk and have engineers look at it and that kind of thing.
. . .

. . . .

. . . [W]e did offer a possibility . . . that if they wanted to
give us alternative legal use farther out so that they could
finish their house we could do that for now. So we'd bend the
right-of-way out, let them finish the house but it would all have
to be legal. And then next summer when we could have engineers
come in and look at alternatives we'd be[] willing to [do] that,
but it would allow them to finish their house in the meantime.
But there are not five people that own the pond property anymore,
just two, but I'd have to get their ok also. So that's an idea.

¶ 14. Based on this and other testimony, the board minutes stated
that Mrs. Neel expressed a willingness "to bend the right-of-way if an
engineer says the road is up to standards." The minutes also stated that
"[b]oth sides expressed an interest in working out the right-of-way and the
start of construction was not really an issue."

¶ 15. Before the superior court, Mrs. Neel testified that, at the
parties' private conference during the board hearing, she told plaintiff
that the Association would consider allowing him to continue building his
addition only if he gave them a legal right-of-way around his house.
According to her, he rejected that idea, so she told him that nothing could
be done until the spring when an engineer could look at the alternative
road. The Association's attorney, who was present with Mrs. Neel at that
private conference, testified that he did not recall whether everyone
understood at the end of the conference that plaintiff could continue
building, but he conceded that no one told plaintiff not to continue
building. He also testified that he informed the board after the parties
ended the conference that an agreement had been reached.

¶ 16. Plaintiff had a slightly different recollection of what was
said. According to him, Mrs. Neel indicated that she had no desire to
interfere with plaintiff's enjoyment of his privacy, but that the
Association had to be sure that an alternative road was acceptable.
Plaintiff testified that Mrs. Neel agreed to withdraw objections to the
building permit and indicated that an engineer would inspect the
alternative road the following spring. When he left the conference, he
believed that defendants had agreed to allow him to obtain the building
permit and continue with the construction of his addition.

¶ 17. Defendants argue that the evidence was insufficient to support
the trial court's apparent ruling that they were equitably estopped from
demanding removal of plaintiff's addition. According to defendants, the
court failed to find that plaintiff reasonably relied upon Mrs. Neel's
statements in going forward with his addition. See Mann, 2004 VT 100, ¶ 27
(listing elements of equitable estoppel). Defendants also argue that (1)
there is no evidence that the Association considered plaintiff's continued
work on the addition to be a nonissue at the conclusion of the board
hearing; (2) the minutes of the board hearing did not accurately reflect
Mrs. Neel's comments at the hearing; and (3) the Association's failure to
sue plaintiff upon commencement of his construction cannot be construed as
acquiescence.

¶ 18. We find these arguments unavailing. As defendants
acknowledged, although the superior court did not expressly rely on the
doctrine of equitable estoppel, its decision appears to be based, at least
in part, on principles underlying that doctrine. Essentially, the court
concluded that, given (1) defendants' statements indicating that they were
amenable to relocating the easement as long as their rights were fully
protected, (2) the relatively minimal encroachment involved, and (3) the
apparent lack of prejudice to defendants in bending the easement around
plaintiff's addition, the most appropriate remedy would be to require
plaintiff to relocate the easement rather than tear down his addition.

¶ 19. The court's decision is supported by the law set forth above
and by the evidence presented. See id. ¶ 28 (trial court determines
credibility of witnesses and persuasiveness of evidence). Throughout the
legal proceedings, the Neels have been the driving force behind the
Association's challenge to plaintiff's encroachment on the easement. Mrs.
Neel's statements at the board hearing, in the presence of the
Association's attorney, led plaintiff to believe that he could build the
addition as long as he could provide the Association with a comparable
alternative easement. Indeed, Mrs. Neel informed the board that she had
suggested to plaintiff that he could finish his addition if he agreed to
give the Association legal title to a comparable relocated right-of-way
that bent around his house. (FN2) For reasons that are not entirely clear,
plaintiff did not accept the proposal.

¶ 20. Nevertheless, based upon the statements made at the board
hearing, plaintiff assumed that he could go forward with his addition
because, at minimum, the Association would allow him to bend the easement
around his addition. The superior court's decision suggests that, under
the circumstances, plaintiff's belief was reasonable, even if incorrect.
Indeed, instead of requiring plaintiff to remove his addition, the superior
court ordered him to provide a survey of a right-of-way "constructed
consistent with the existing roadway" that bends around his house at a
distance not to exceed fifty feet. We conclude that, given the particular
facts of this case, the court did not err by allowing plaintiff to bend the
deeded easement around his house rather than tear his addition down. Cf.
Vossen v. Forrester, 963 P.2d 157, 162 (Or. Ct. App. 1998) (requiring
removal of encroaching structure was "not a proper remedy" where
encroachment was minimal, easement owner permitted defendant to proceed
with construction, and weighing of hardships favored servient landowner).

II.

¶ 21. Although we uphold the superior court's order allowing
plaintiff to bend the easement around his addition, we decline plaintiff's
request on cross-appeal for this Court to hold that a servient landowner,
with court approval, may unilaterally relocate an easement without
obtaining the consent of the dominant owner. Plaintiff seeks a new rule of
law based on § 4.8 of the Restatement (Third) of Property: Servitudes
(2000). Section 4.8(3) of the Restatement provides as follows:

Unless expressly denied by the terms of an easement, as defined in
§ 1.2, the owner of the servient estate is entitled to make
reasonable changes in the location or dimensions of an easement,
at the servient owner's expense, to permit normal use or
development of the servient estate, but only if the changes do not

(a) significantly lessen the utility of the easement

(b) increase the burdens on the owner of the easement in its use
and enjoyment, or

Id. § 4.8(3), at 559.

¶ 22. The drafters of the Restatement acknowledged that this
section rejects the rule espoused by most jurisdictions in this country,
including Vermont, see In re Shantee Point, 174 Vt. at 261, 811 A.2d at
1254; Sargent, 121 Vt. at 12, 147 A.2d at 900, that the servient landowner
may not unilaterally relocate an easement. Restatement (Third) of
Property: Servitudes § 4.8 cmt. f, at 563. Instead, the drafters adopted
"the civil-law rule that is in effect in Louisiana and a few other states."
Id. As the drafters explain, "[t]he primary purpose of the rule is to
increase the value of the servient estate by limiting the easement's
potential to prevent development even when a relocated easement would
equally well serve the interests of the easement holder." Id. at 564.

¶ 23. A few courts have adopted § 4.8 because its flexible approach
prevents intransigent easement holders from unnecessarily thwarting
development of the servient estate. See, e.g., Roaring Fork Club, L.P. v.
St. Jude's Co., 36 P.3d 1229, 1237 (Colo. 2001) ("[E]ach property owner
ought to be able to make the fullest use of his or her property allowed by
law, subject only to the requirement that he or she not damage other vested
rights holders."); M.P.M. Builders, LLC v. Dwyer, 809 N.E.2d 1053, 1057
(Mass. 2004) (Restatement approach "strikes an appropriate balance between
the interests of the respective estate owners by permitting the servient
owner to develop his land without unreasonably interfering with the
easement holder's rights"); Lewis v. Young, 705 N.E.2d 649, 653-54 (N.Y.
1998) ("consonant with the beneficial use and development of property,"
servient landowner can move undefined right-of-way so long as new location
does not frustrate parties' intent in creating right-of-way or increase
burden on right-of-way's owner); cf. Goodwin v. Johnson, 591 S.E.2d 34, 38
(S.C. Ct. App. 2003) (court may relocate easement of necessity when
evidence supports such relocation).

¶ 24. On the other hand, the traditional approach-which effectively
requires servient landowners to purchase, or obtain by consent, the right
to relocate a legally established right-of-way-"favors uniformity,
stability, predictability, and property rights." MacMeekin v. Low Income
Hous. Inst., 45 P.3d 570, 579 (Wash. Ct. App. 2002) (declining to adopt
Restatement approach). As the Georgia Supreme Court explained in rejecting
the Restatement approach, the traditional rule

provides certainty in land ownership. Allowing unilateral
avoidance of the contract by the owner of the servient estate not
only would violate fairness principles, it also would create
uncertainty in real property law by opening the door for increased
litigation over "reasonableness" issues based on today's
conditions rather than those considered in the original bargain.
No doubt, when the servitude was first created both parties
considered all market factors, including their respective costs
and benefits, before agreeing on the consideration for the
transaction. If the benefits of relocation become substantial
enough, it is the market that should ultimately bring the parties
together again, not the courts.

Herren v. Pettengill, 538 S.E.2d 735, 736 (Ga. 2000). Along the same
lines, the Supreme Judicial Court of Maine explained that permitting
unilateral relocation of easements

would definitely introduce considerable uncertainty into land
ownership, as well as upon the real estate market, and serve to
proliferate litigation . . . . Indeed, the owner of the dominant
estate would be deprived of the present security of his property
rights in the servient estate and could be subjected to harassment
by the servient owner's attempts at relocation to serve his own
conveniences. A unilateral relocation rule could confer an
economic windfall on the servient owner, who presumably purchased
the land at a price which reflected the restraints existing on the
property. Such a rule would relieve him of such restraints to the
detriment of the owner of the dominant estate whose settled
expectations would be derailed with impunity.

Davis v. Bruk, 411 A.2d 660, 665 (Me. 1980).

¶ 25. We find these arguments persuasive. Although there are
legitimate arguments in favor of adopting the Restatement approach, the
potential negatives of doing so demand caution before abandoning our
established law foreclosing unilateral relocation of established easements.
Accordingly, we reject plaintiff's argument on cross-appeal that we should
remand the matter for the trial court to apply the Restatement approach to
require defendants to use the alternative road he constructed.

III.

¶ 26. Next, defendants argue that the superior court erred by
issuing an advisory opinion regarding the burden that might be imposed on
plaintiff as the result of hypothetical future development of the
Association's property. We agree that the court acted prematurely in
limiting defendants' rights to use the easement for potential future
development of the dominant estate.

¶ 27. After finding that the Association members intended to use the
Kimibakw property for family recreational purposes rather than develop it,
the court concluded that developing the property now would unduly burden
the servient estate. Consequently, the court ruled that the scope of the
easement does not include the right to use it as an avenue for future
development. (FN3) The court made this ruling even though there was no
controversy concerning future development. No development was planned, and
neither party sought to limit the scope of the easement with respect to any
future development. (FN4)

¶ 28. Under these circumstances, the superior court's ruling that
the scope of the easement does not include its use as an avenue for future
development is an impermissible advisory opinion. "For a court to make a
declaratory judgment, it must have before it an actual or justiciable
controversy." Mass. Mun. Wholesale Elec. Co. v. State, 161 Vt. 346, 363,
639 A.2d 995, 1006 (1994). Thus, declaratory relief is available only when
a party is threatened with "actual injury to a protected legal interest."
Id. The claimed consequences of the controversy must be reasonably
expected rather than based on fear or anticipation. Id. Here, the trial
court should have refrained from ruling on the scope of the easement as to
any future development because there was no actual controversy with respect
to that issue. Accordingly, we strike from the court's decision both that
ruling and the findings in support of that ruling.

IV.

¶ 29. Finally, we reject defendants' remaining arguments concerning
the court (1) allowing plaintiff to maintain a permanent locked gate at the
entrance to the easement; (2) finding that utility poles erected by
plaintiff's predecessors-in-title were outside the easement; (3) concluding
that a boulder placed across the upper fork of the easement did not
unreasonably burden defendants; and (4) suggesting that defendants used the
easement in an unreasonable manner by damaging flowers alongside the
easement. Regarding the first issue, defendants make a general argument
concerning the erection of gates, without explaining the significance of a
locked gate under the circumstances of this case. The evidence at trial
showed that there had been a gate at the entrance of the easement for
decades. Defendants failed to convince the court that a gate would
unjustifiably burden access to their property. The court determined that a
locked gate would be reasonable as long as plaintiff provided access to
Association members, their guests, and emergency vehicles. We find no
abuse of discretion. See Lovitt v. Robideaux, 78 P.3d 389, 395 (Idaho
2003) (servient owner may erect gate to restrict use of easement to
rightful users, as long as gate does not unreasonably burden dominant
owner); Rupert v. Gunter 640 P.2d 36, 39 (Wash. Ct. App. 1982) (whether
servient owner may maintain gate across easement depends on intention of
parties creating easement, as shown by circumstances of case, situation of
property, and manner in which easement has been used).

¶ 30. Regarding the telephone poles, the superior court found that,
after consulting with Mrs. Bernhard (plaintiff's predecessor-in-title),
Mrs. Neel determined that the utility poles would be placed outside of the
right-of-way, and that placement of the poles would not affect use of the
easement. At trial, Mrs. Bernhard testified that after Mrs. Neel wrote her
a letter expressing concern about the location of the poles, she consulted
an attorney, who told her that as long as the poles were staggered and more
than fifty feet apart they would not interfere with the right-of-way
because of its indefinite center line. Mrs. Bernhard further testified
that Mrs. Neel accepted this explanation. Thus, the court's challenged
findings are supported by this testimony.

¶ 31. Regarding the alleged obstruction, the trial court found that
the only obstruction plaintiff had erected was a boulder on the upper fork
of the easement to protect grass-covered ski trails. The court noted that
the boulder had been removed and determined that no damage award was
warranted. We find no abuse of discretion. Nor do we find any reversible
error in the court suggesting that the destruction of flowers along the
right-of-way could be considered an unreasonable use of the easement but
finding a lack of evidence as to the amount of damages.

The superior court's April 15, 2004 decision is affirmed in all
respects, except that its restriction on using the easement as an avenue
for future development and its accompanying findings on that issue are
stricken from the decision.

FOR THE COURT:

_______________________________________
Chief Justice

------------------------------------------------------------------------------
Footnotes

FN1. The deed actually conveyed two easements forming the "Y," but, for the
sake of simplicity, we will refer to them as one easement.

FN2. In their brief on appeal, defendants state that Mrs. Neel was willing
to recommend to her partners an alternative that "would have entailed
deeding the minimum detour necessary for the Access Road to bend around the
proposed footprint of the addition pending further discussions about a
permanent solution." Even at oral argument before this Court, defendants'
attorney conceded that defendants could "live with" the trial court's
ruling allowing plaintiff to bend the easement around his addition.

FN3. The superior court also ruled that Association members could not use
the easement to access any property other than the Kimibakw parcel.
Defendants have not challenged that aspect of the court's ruling, which was
not advisory in nature.

FN4. While plaintiff's complaint sought a declaratory judgment establishing
the specific scope of the easement, that request went to the type of
traffic allowed, and the court determined in its June 6, 2001 decision that
"the scope of permissible use includes pedestrians and vehicles of the kind
ordinarily permitted on unpaved public roads in Vermont such as may be
reasonably necessary to access the dominant estate."

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