¶ 1.
Dеfendants James and Barbara Kolodziej appeal the decision of the Windham Superior Court granting declaratory judgment in favor of plaintiffs Bruce and Gordon Kirkland on plaintiffs’ action to quiet title in a road traversing defendants’ land and providing access to plaintiffs’ land. Following a bench trial, the court found that the road had been established formally as a public highway. We conclude that plaintiffs provided insufficient evidence to prove that a public highway had been established in the segment of the road at issue, and reverse.
¶2. The parties to this appeal are neighboring landowners in Rockingham, Vermont. Their dispute centers on a segment of Petty Road that crosses defendants’ property and is used by plaintiffs to access their property.
¶ 3. Except where otherwise noted, the following background facts are not in dispute. In 1978, plaintiffs acquired sixty acres in Rockingham. The deed noted that the property “includes the Petty Road.” A portion of the boundary, as repeated from an earlier 1962 deed, is described as follows:
Beginning at a stonewall intersection on the Easterly right-of-way limit of the so-called Gill Gowing or Mason Road and on the Rockingham-Springfield Town Line, said stonewall intersection being the Northwеst corner of the parcel being described. . . . Thence Southwesterly . . . along an extension of a stone wall . . . this line being the Southeasterly right-of-way limit of the so-called “Petty Road” ....
¶ 4. In 1983, defendants acquired approximately 23.5 acres abutting plaintiffs’ parcel to the west. The deed referenced a survey that depicts Gowing Road as the northwesterly boundary and shows “the approximate location of Petty Road purported to be a discontinued Pent Road”
¶ 5. Plaintiffs live out of state and visit their property for recreational purposes several times each year. With the exception of a small camper, the property remains unimproved. Until the events that prompted this lawsuit, plaintiffs gained access to their property by traveling north along Gowing Road and then east along a wood road — the segment of Petty Road at issue here — through defendants’ property and onto their own land. On the ground, the segment of Petty Road running from Gowing Road to plaintiffs’ property is plainly marked and lined for much of the way with old stone walls. In recent years, the road has served as the sole means of access to other properties to the east of plaintiffs’ land.
¶ 7. While constructing the new driveway, defendants deposited large stumps and other debris along Petty Road, several hundred feet from its intersection with Gowing Road. This debris rendered that section of Petty Road impassible. When plaintiffs visited their property in the fall of 2007, before even reaching Petty Road, they encountered a large tree trunk lying across Gowing Road, just south of its intersection with Petty Road, completely obstructing vehicular travel.
¶ 8. Since 2007, plaintiffs have gained permission to access their land through neighboring property to the north.
[T]here is evidence that the road was established prior to 1806, even if formalities were not observed; that the portion in question was discontinued and reestablished as a pent road in 1842 and 1843; and that the disputed portion has been in public use continuously until Defendants obstructed it. This sequence of events, if supported by a preponderance of the evidence, would justify the conclusion that Plaintiffs’ predecessors and the public had acquired rights by dedication and acquiescence to use the road and traverse the land now owned by Defendants.
The court also concluded that a factual question remained as to who was responsible for placing the materials that obstructed Gowing Road.
¶ 10. During a three-day bench trial, the court took evidence on the status of Petty Road and made the following findings of fact with respect to the road’s historical origins. Present-day Petty Road traverses what were designated historically as Lots 4, 5, and 6 of Range 1 in the Town of Rockingham — the Dutton, Petty, and Gleason lots, respectively. In 1821, the selectmen laid out the easternmost 2500 feet of Petty Road, running from the eastern edge of Lot 5 and crossing all of Lot 6 before reaching the Springfield town line. Defendants do not dispute that the eastern segment has been in continuous use as a public highway since its dedication. The dispute here centers on the segment of Petty Road that extends west to its intersection with Gowing Road near the western edge of Lot 4. Petty Road, as laid out in 1821, was described as extending from “the road that leads from Stephen Dutton’s to Solomon Petty’s” to the Springfield town line. Plaintiffs’ expert surveyor testified that the road referenced in the above description likely was the disputed western segment of Petty Road. The court acknowledged that “neither party has located a survey, or other recording of proceedings to lay out the road” but stated that it was “likely that [Petty Road] had been previously legally acknowledged as a town road.”
¶ 11. An 1825 conveyance of land in the southern part of Lot 5 described a portion of the boundary as “beginning on the east side of [said] lot on the south side of the road that leads from Stephen Dutton’s to Springfield by the land of Thadeous Gleason” and continuing “on said road as it is now traveled on the north side of the aforеsaid Solomon Petty’s house.” According to the court, this description strongly implies the recognition of Petty Road as a public highway along its entire length, including the disputed western segment. Similar references are found in conveyances in 1826, 1834, 1835, and 1841.
¶ 12. On November 16, 1842, the selectboard granted a petition to “discontinue[ ] so much of the road leading from Bartons Mills through the Petty farm so called to Springfield line . . . [beginning at the junction of said road with the Mason road so called running and through the Petty farm to Springfield line.” A few months later, on March 4, 1843, the selectboard altered the resolution adopted the previous November and established “a pent road” over the previously discontinued road “beginning at the junction of the old road that leads from Bartonsville through the Petty farm so called to Springfield line with the Mason road so called.” The resolution specifically referred to the location of the pent road as “along the survey of the old road discontinued on the 16th of November last.”
¶ 13. Based upon deed descriptions and testimony from plaintiffs’ expert surveyor, the trial court found that present-day
¶ 14. Plaintiffs were unable to locate any earlier survey or description of the disputed western portion of Petty Road in any other resolution or rеcorded act of the selectboard. The only other testimony offered with respect to the existence of the pent road were various descriptions of gates located along the road. As the trial court noted, “it is highly unlikely that [the gates] were all located in the easternmost 2,500 foot segment of Petty Road.” Despite the lack of conclusive evidence, the court found “it likely that the western portion of the disputed road was laid out prior to 1821, and that the records of such official action were either never filed, misplaced, or lost.”
¶ 15. The trial court therefore concluded that Petty Road is a public highway and granted plaintiffs’ request. for injunction requiring defendants to restore the road to its prior condition and refrain from impeding any public passage in the future.
¶ 16. Defendants raise several issues on appeal. Primarily, defendants argue that the trial court erred in concluding that Petty Road is a public highway where it extends across their property. Defendants make several more specific claims, including that the court erred in finding that plaintiffs’ property was landlocked; applying precedent relating to claims of adverse possession; shifting the burden to defendants to prove that Petty Road is private; finding that plaintiffs’ neighbor refused to grant plaintiffs an access easement; and denying defendants’ motion for judgment on the pleadings. Because we hold that the court erred in finding that the western segment of Petty Road is a public highway, we need not address defendants’ remaining claims, except to the extent that we address them incidentally in our analysis of the status of Petty Road.
¶ 17. The determination of the existence of a public highway is a “mixed question of law and fact.” Town of Bethel v. Wellford,
¶ 18. We have identified three possible methods for establishing a public road in Vermont: (1) statutory condemnation; (2) dedication and acceptance; and (3) prescriptive easement. Okemo Mountain, Inc. v. Town of Ludlow Zoning Bd. of Adjustment,
I. Statutory Condemnation
¶ 19. We first consider whether plaintiffs have proven that Petty Road was properly laid out as a public highway through statutory condemnation. The law in effect when the eastern segment of Petty Road was laid out provided three legal requirements for the creation of a road: (1) an official survey to be recorded in the town clerk’s office; (2) a formal act by the selectboard; and (3) a certificate of opening.
¶20. In a related context, we have acknowledged that “the difficulty in determining whether abandoned roads still legally exist stems from inconsistent, and sometimes incomprehensible, town records dating back two centuries or more,” Wellford,
¶ 21. It is undisputed that the recorded action of the selectboard established only the eastern segment of Petty Road as a public road. With respect to the western segment, there is no recorded survey covering that segment, no recorded act of the selectboard establishing that section as a public road, and no certificate of opening of that segment.
¶ 22. The trial court relied, to a greater or lesser degree, on three rationales to find that the western segment of Petty Road is a public highway despite the absence of all the statutory elements: (1) it found circumstantial evidence that the western segment had been laid out as a public road, primarily through deed references and public use оf that segment, and found that the “[record] proof quite conceivably has been lost as a result of the passage of time[,] . . . hav[ing] been omitted from the records due to error at the outset, or on account of later misfiling, or because they were lost or misappropriated”; (2) it concluded that both segments of Petty Road had been discontinued as a public
¶ 23. We start with the trial court’s conclusion that it could rely on circumstantial evidence to find that the selectboard properly laid out the western segmеnt of Petty Road as a public highway. In evaluating this argument, it is important to understand that there was no circumstantial evidence that the records showing compliance with the statutory elements ever existed or any evidence explaining why they were not found in the town office. The court’s discussion of the possible reasons for their absence was speculative. The court concluded that “quite conceivably” the records were lost because of the passage of time, noting various explanations for their absence. In its findings, the court found “it likely . . . that the records of such official action were either never filed, misplaced or lost.” There was no evidence, however, that any of these alternatives occurred or that the records existed in the first instance. Furthermore, there is no evidence that thе records, if they existed, complied with the statutory requirements.
¶ 24. Before evaluating this issue, we note a distinction between two types of circumstantial evidence that are often relied upon in statutory condemnation cases: circumstantial evidence showing that records of official action once existed and properly were recorded, and circumstantial evidence that a road was open to the public. All the evidence plaintiffs presented in this case, and all the evidence relied upon by the trial court, was of the latter type — evidence that the public used the western segment of Petty Road.
¶ 25. While we recognize our limited case law on the question, the decisions that exist directly conflict with the trial court’s rationale. Our primary case, Barber v. Vinton,
¶26. In discussing parol evidence, we first laid out the statutory requirements, stating:
The statute provides that the selectmen shall return the original petition, with a report of their doings thereon and of the manner of notifying the parties, with the survey of the road, to the town clerk’s office, to be kept on file therein; and that their order laying out the road, and the survey, shall be recorded.
Id. at 333,
¶ 27. We reached a similar result in another context in Bacon v. Boston & Maine Railroad. In that case, the plaintiffs failed to prove a record of the opening of a highway, the third necessary element as set out above. As in Barber, we addressed first the argument that there is a presumption of regularity in the action of the selectboard and that the presumption satisfies the plaintiffs’ requirement to prove the third element of the statute. We rejected that argument, relying on the same tax case discussed in Barber, and held that “the rule cannot be so construed as to permit the presumption here claimed — so construed as to alter the rule that the existence and contents of a record must be proved by the record, unless something is shown which prevents or excuses the production of the record.”
¶ 28. Looking at Barber and Bacon together, we conclude that parol evidence may be admissible in the form of an actual action of the selectboard or surveyor if the proponent of the public nature of the road can show that the record of the action once existed but is no longer available. We do not believe that, under these cases, a court can find that a road is public unless the statutorily required records are shown to have existed. In this case, therе is no evidence that such records existed.
¶ 29. We emphasize that our holding here is consistent with our decision in Austin v. Town of Middlesex, which we cited above, supra, ¶ 19, for our holding that there must be substantial compliance with the statutory requirements in effect at the time the road is laid out or the proceedings will be void. Austin,
¶ 30. This leads us to the trial court’s second rationale, that the discontinuance of Petty Road in 1842, followed a few months later by its reestablishment, proved that it was properly laid out over its entire length. This rationale actually has two parts: (1) the discontinuance of the entire length of Petty Road, including both segments, demonstrates that the selectboard must have laid out the western segment of Petty Road sometime prior to its discontinuance, and (2) the reestablishment complies with the statutory
¶ 31. The first part of the rationale — that the discontinuance of the entire length of Petty Road demonstrates that it had been laid out as a public highway in the first instance — is inconsistent with our holding above on the use of circumstantial evidence. We explicitly addressed this issue in Bacon in response to this very same argument made by the plaintiffs there. In Bacon, we gave “no force” to the argument that the official act of the selectboard in discontinuing the disputed highway in 1908 was evidence that the road had been laid out properly in 1863, stating that “since there was no public highway to discontinue, this ostensible discontinuance had no force as a recognition of the highway.”
¶ 32. The second part of the rationale addresses the statutory requirement that there be a recorded survey of the road. The language in the 1843 record of Petty Road’s reestablishment clearly states that the selectbоard is laying out the road. It does not, however, address the requirement of a recorded survey. In fact, it states that the road was reestablished “along a survey of the old road discontinued on the 16th of November last.” Plaintiffs presented to the trial court evidence of only one survey, and this survey included only the eastern segment of Petty Road. No new survey accompanied the reestablishment of the road. The court noted that a preexisting survey could be referenced to comply with the statute, see Winooski Lumber & Water Power Co. v. Town of Colchester,
A roadway width of one and one half rods on each side of the center of the existing traveled way can be assumed and controlled for highway purposes whenever the original survey was not properly recorded, or the records preserved, or if the terminations and boundaries cannot be detеrmined.
The statute reflects a legislative recognition that surveys may be unrecorded or lost and that the termination points as surveyed may become impossible to determine. Beyond that, the statute is irrelevant here. Its subject is actually the determination of the width of a road, rather than its length.
¶ 34. For the above reasons, we conclude that the trial court erred in concluding that the western segment of Petty Road was established as a public highway by statutory condemnation. We now proceed to determine if a public highway was еstablished under the common law.
II. Dedication and Acceptance
¶ 35. We next consider whether the common-law doctrine of dedication and acceptance, which is “the setting apart of land for public use,” Okemo Mountain,
¶ 36. With this background in mind, we turn to the trial court’s conclusion with respect to dedication and acceptance. As noted above, it is unclear precisely what common-law doctrine the court applied: dedication and acceptance or prescription. In its ruling on the parties’ cross-motions for summary judgment, the court stated that long continuous use by the public would support a finding that a public highway exists through “dedication and acquiescence.” In its conclusions of law, the court emphasized “the necessity of acknowledging a continuing right to use a way over which the public use had regularly occurred without objection,” and cited two cases, Morse v. Ranno,
¶ 37. On this point, we repeatedly have emphasized that public use alone, no matter how long, is insufficient to create a valid dedication and acceptance. See, e.g., Gardner v. Town of Ludlow,
¶ 38. As we stressed in Bacon v. Boston & Maine Railroad, “[t]he adoption of a dedicated way as a highway must be evidenced by acts of the proper town authorities, and mere use by the public is not enough.”
¶ 39. Plaintiffs’ case fails the acceptance requirement. Plaintiffs contend that the deed references that demonstrate long recognition of public use by the predecessors-in-interest support an intent to dedicate and accept Petty Road. While such long acquiescence to public use may adequately support an intent on the part of the landowners to dedicate Petty Road to public use, the above-cited eases demonstrate that it is insufficient to prove acceptance by the town. Plaintiffs further argue that the stone walls and other evidence on the ground indicate maintenance and repair of the road. The evidence was sparse on these points and consistent with use as a private road as well as use as a public highway. There was no evidence that the town, as opposed to private landowners abutting the road, provided any improvements, maintenance, or repair. The evidence does not prove unequivocal intent to accept. We therefore conclude as a matter of law that the western segment of Petty Road was not established as a public highway through common-law dedication and acceptance.
III. Prescriptive Easement
¶ 40. As we stated above, there may be a third possible way of establishing a public highway — that is, by proving that the public had acquired a prescriptive easement over the road. Aspects of the trial court decision suggest that the court relied upon this theory. In general, a prescriptive easement may be established by a showing that the use was “open, notorious, continuous for fifteen years, and hostile or under claim of right,” Schonbek v. Chase,
¶ 42. Our earliest significant precedent on the issue is Gore v. Blanchard, which presents facts somewhat similar to those at issue here. In Gore, the plaintiffs had been using a road to cross the defendant’s property to harvest ice frоm the river. When the defendant blocked access, the plaintiffs sued to reestablish public usage, relying on the dual theories of dedication and acceptance and prescriptive easement. We first held that the plaintiffs had not proved dedication and acceptance and then considered the prescriptive easement claim. We noted at the outset that “[ijnasmuch as the public cannot take by grant, prescription, which presupposes a grant, in its strict sense, seems to have no application to highways.” Gore,
¶ 43. The issue next arose in Town of Springfield v. Newton, where the parties again asked this Court to consider whether the road at issue had been made public by either dedication or acceptance or prescriptive easement. We first stated the general rule that a public highway could be “established either by regular statutory proceedings, or by dedication and acceptance.” Newton,
¶ 44. As we have concluded that Petty Road was not established as a public highway by statutory condemnation or common-law dedication and acceptance, and that it could not be established by prescriptive easement, we hold that plaintiffs failed to demonstrate that the disputed western segment of Petty Road is a public highway.
The injunction is vacated, and the judgment is reversed.
Notes
Plaintiffs do not have an easement over defendants’ land. Thus, their ability to access their property by road, at least from the westerly direction, depends upon Petty Road being a public road.
The description in the text makes it easier to understand the dispute. As some of the deed descriptions reflect, Petty Road actually runs in a southeasterly
A pent road is a public road enclosed by gates.
This blockage was insignificant to defendants because they had built their new driveway off Gowing Road south of the downed tree. Plaintiffs claimed that defendants intentionally bloсked passage along Gowing Road, but the trial court found it likely that the tree fell naturally. In any event, this point was not raised on appeal, and we need not consider it. Because Gowing Road is a class 4 town highway, the town assumes no responsibility for its maintenance.
The trial court found that the abutting landowner, whose property plaintiffs have been traversing to obtain temporary access, was unwilling to grant plaintiffs an access easement. Defendants dispute this finding. The issue is merely tangential to this appeal.
Although the court did not articulate this in its finding that the record may have been misplaced or lost, the Rockingham zoning administrator and chairwoman of the Ancient Roads Committee testified that restoration of the early town record had degraded the legibility of the books and resulted in at least one page being damaged or lost. Defendants presented unrebutted testimony that the one missing document did not pertain to Petty Road and that no other documents were missing. It is unclear how much significance, if any, the court placed on this scant evidence, particularly given that the court found it likely that the records were either never filed, misplaced, or lost. The court certainly left open the possibility that no record ever existed.
The court denied plaintiffs’ request for damages and attorney’s fees, finding no evidence to support their claim that defendants acted in wanton disregard of plaintiffs’ rights in blocking the road. Plaintiffs do not appeal this ruling.
The requirement of a certificate of opening was added in 1820. See Kelly v. Town of Barnard,
Because of our disposition, we need not address defendants’ argument that the trial court erred in finding that present-day Gowing Road, which marks the western terminus of Petty Road, is the Mason Road referred to in the historical documents.
The trial court noted that 19 V.S.A. § 32 had been used in Town of Ludlow v. Watson,
Neither ease the trial court cited supports its conclusion, although one of the two cases presents a vague picture of the distinction between dedication and acceptance and prescriptive easements. In Morse, finding no intent on the part of