282 A.3d 894
Vt.2022Background:
- Stebbins Road was surveyed in 1801; Vermont’s 1797 Act required roads be surveyed and the survey recorded, and authorized selectboards to “lay out” roads.
- The Town discontinued the western portion of Stebbins Road in 1904; landowner’s title traces to 1815/1838 glebe leases that reference the road.
- Long-running litigation: neighbors sued (2010) and the court held Stebbins Road was not properly laid out and landowner lacked an easement by necessity; that judgment was affirmed on appeal.
- Landowner later sued the Town (2014) for breach of the covenant of quiet enjoyment; this Court (2018) permitted relitigation of the road-status issue on remand if neighbors were joined as indispensable parties.
- On remand the superior court granted summary judgment to landowner and the Town, finding (1) the 1797 Act did not require a recorded selectboard order to lay out a road and (2) landowner (as successor in title) has a private right of access under Okemo, so the Town did not interfere; neighbors appeal.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the 1797 Act required a selectboard to take a formal, recorded act to "lay out" a road in 1801 | Daiello: Act only required an official survey be made and recorded; no separate recorded selectboard act was necessary | Merritt: "Lay out" required a formal recorded act by the selectboard; otherwise absurd results follow | Court: "Lay out" required selectboard action but not necessarily a recorded order; statute required survey recording but not formal recorded selectboard minutes pre-1839; evidence of official recognition suffices |
| Whether Stebbins Road was properly established under the 1797 Act | Daiello/Town: 1801 recorded survey plus town actions (meeting notices, leases, map inclusion, 1841 alteration) show selectboard recognition and substantial compliance | Merritt: Absence of a contemporaneous signed/selectboard notation on the survey means road never properly laid out | Court: Selectboard substantially complied; the record contains official acts reflecting recognition, so Stebbins Road was a public road when the 1838 lease issued |
| Whether landowner (a later purchaser) retains a common-law private right of access over a long-discontinued public road (Okemo) | Daiello: Okemo easement runs with the land; successor in title retains private right of reasonable and convenient access even if discontinuance long ago | Merritt: Okemo should not revive a right for successors absent evidence prior owners used the road or absence of alternatives | Court: Okemo remains good law; private right of access runs with land through chain of title and can persist for successors; alternative access is relevant to scope but does not extinguish the right as a matter of law |
| Whether 19 V.S.A. § 717(c) displaced Okemo or provides a retroactive right of access | Merritt: § 717(c) codified/limited access rights and displaces common-law rule; no statutory right can be applied retroactively to 1904 discontinuance | Daiello: Okemo common-law right governs for pre-statutory discontinuances | Court: § 717(c) (2006) is prospective and cannot retroactively create rights in 1904; Okemo governs the pre-2006 discontinuance question |
Key Cases Cited
- Okemo Mountain, Inc. v. Town of Ludlow, 171 Vt. 201 (Vt. 2000) (recognizes common-law private right of access for abutting owners when a public road is discontinued and sets two-part test)
- Austin v. Town of Middlesex, 186 Vt. 629 (Vt. 2009) (discusses evidentiary proof required to show a road was laid out; court clarifies aspects of that reasoning)
- Kirkland v. Kolodziej, 199 Vt. 606 (Vt. 2015) (addresses statutory compliance and recording requirements for establishing a road)
- Barrett v. Kunz, 158 Vt. 15 (Vt. 1992) (explains that appurtenant easements run with the land and pass to subsequent grantees)
- Shearer v. Raymond, 259 A.3d 818 (N.H. 2021) (New Hampshire Supreme Court recognizing successor’s easement over a highway discontinued long ago; persuasive on chain-of-title continuation)