128 A.3d 407
Vt.2015Background
- Bruce and Gordon Kirkland own land in Rockingham, Vermont, with a segment of Petty Road crossing defendants’ property providing access to Kirklands’ land.
- Eastern segment of Petty Road was historically established as a public highway; western segment location and status are disputed.
- Early 1800s records and later deeds reference Petty Road and its use, but no complete, surviving statutory records confirm the western segment’s lay-out.
- Defendants began constructing a dwelling and sought to limit access in 2006, depositing debris on Petty Road and obstructing the road; plaintiffs lost practical northwestern access.
- Trial court found evidence of pre-1806 establishment and 1842–1843 reestablishment implying dedication by acquiescence, and granted injunction to keep Petty Road as public.
- Vermont Supreme Court held the western segment was not proven to be a public highway under statutory condemnation, dedication and acceptance, or prescriptive easement, reversing the injunction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether western Petty Road was properly laid out as a public highway via statutory condemnation | Kirkland: records show road laid out entirely; evidence supports public status | Kolodziej: western segment lacks statutory survey, act, and opening certificate | Not proven; western segment not public highway under statutory condemnation |
| Whether the western segment was established by common-law dedication and acceptance | Kirkland: long public use evidences dedication and acceptance | Kolodziej: no unequivocal town acceptance; use alone insufficient | Not established; no unequivocal town acceptance; the road not public by dedication and acceptance |
| Whether the western Petty Road could be established by prescriptive easement | Kirkland: continuous public use supports prescriptive rights | Kolodziej: Vermont precedent disfavors prescriptive easement for highways | Not established; prescriptive easement cannot create a public highway in Vermont |
Key Cases Cited
- Barber v. Vinton, 82 Vt. 327 (1909) (presumption of regularity cannot fill gaps in statutory record; notice requirements must be proven by record)
- Bacon v. Boston & Maine Railroad, 83 Vt. 421 (1910) (record of opening highway required; cannot rely on parol evidence to prove existence)
- Austin v. Town of Middlesex, 2009 VT 102 (2009) (substantial compliance with statutory requirements required for highway proceedings)
- Okemo Mountain, Inc. v. Town of Ludlow Zoning Bd. of Adjustment, 164 Vt. 447 (1995) (establishment of public highway may occur by statutory provisions or dedication and acceptance)
- Newton v. Town of Springfield, 115 Vt. 39 (1924) (public highway may be established by dedication and acceptance; prescriptive bearing discussed but later limited)
- Gore v. Blanchard, 96 Vt. 234 (1902) (prescription of public highways discussed; public cannot take by grant; cautious about prescriptive method)
- Demers v. City of Montpelier, 120 Vt. 380 (1958) (public way established by statutory condemnation or dedication and acceptance; prescription limited in Vermont)
- Town of Woodstock v. Cleveland, 125 Vt. 510 (1966) (public highway requires town action and acceptance; mere use insufficient)