McCartney v. Burns, 21-cv-1474

McCartney v. Burns

21-cv-1474

Vt. Super. Ct.

Jun 18, 2025

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Case Information

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The two properties are located south and west Route 118 Ms. McCartney's the

used in common with grantors, their heirs and assigns. The width said right of way shall be

gravel drive's width lies on Defendants' side property line, with the remainder on Ms. *-682 in no meaningful interference with Defendants' property rights. There is no evidence, for example, that

McCartney's car that running board caused damage the fender Ms. McCartney's car; she

location property line and the distances between the two houses and between the property line

their respective properties, court concludes that the right way should be only 15 feet wide, with

property damage Ms. McCartney's vehicles and her discomfort and annoyance. The discomfort and way exists for the purpose of pedestrian and vehicular access each property by any persons with

On Ms. McCartney's nuisance claim, Supreme Court has made clear that "[w]here an

northwest Defendants'. Defendants also own a property southeast of the property at issue

measured from northerly edge [Parcel One]." Clearly, however, whoever described this right of

McCartney's side. In its current configuration, however, gravel drive extends farther onto the

Defendants ever used shared drive for "ingress or egress"; the lease for the Rental Property

and each houses. The parties to the 1974 deed cannot have intended to create a right of way that

bought a replacement fender for $450 but chose not pay to have it installed, instead selling it with

annoyance, however, did not rise to the level actual bodily harm or sickness; thus, it will support no actual shared drive limited 8 feet in width.

abatable nuisance is found exist, award damages can properly include both compensation for

right or permission access that property, as well as for maintenance a gravel drive 8 feet in

here; they reside in that property and rent out subject property (for the sake clarity, the court

way did so with complete ignorance actual boundary line of Parcel One or the location of what

Rental Property, such that it is not possible park adjacent to Defendants' house without also parking

required their tenants park in the easement for that purpose between the Rental Property and car. And on at least one occasion Mr. Burns deliberately left a pile animal feces at the foot of

extended nine feet into what is now Ms. McCartney's house. Rather, they intended to clarify that what

The court turns next Ms. McCartney's nuisance and trespass claims. The Complaint set forth *-640 more than an award of nominal damages in trespass. lost use property (calculated on the basis of diminished rental or use value) and compensation

width, also bisected for first 58.86 feet its length by the property line between the two properties.

refers the subject property as the "Rental Property," and Defendants' neighboring property as

eventually became Ms. McCartney's house; "northerly edge [Parcel One]" is a mere 11 feet

in part within gravel drive. Nevertheless, there is sufficient room between the two houses (barely)

Defendants' home property. Defendants themselves never resided in Rental Property and never

Ms. McCartney's back steps.

had theretofore been only a right way over Parcel One of Rental Property in favor of Ms.

trespass claims against Defendant Burns alone (Counts I and III); Ms. McCartney subsequently

The same cannot be said, however, for Ms. McCartney's nuisance claims. In this regard, it is

for personal injuries such as annoyance, discomfort, and inconvenience." Coty v. Ramsey, 149 Vt.

Defendants shall have no right maintain right way after the first 58.86 feet except to remove

"Defendants'' home property"). Ms. McCartney's property consists an irregularly shaped lot on

from Ms. McCartney's house. Indeed, the distance between the two houses is only slightly more than allow each party to park vehicles alongside their houses without interfering with other's right of

used shared drive access their barn; they accessed the barn from their home property's side of

The real damage was emotional. It bears emphasis that neither behavior nor the harm rose

McCartney's property had become by practice a shared right way located between two

amended Complaint assert these claims (and others asserted in the original Complaint) against

clear that Mr. Burns engaged in a "sustained and intentional campaign to annoy" Ms. McCartney. See

vegetation allow access to barn located on the rear of their property. If during any calendar year

451, 464 (1988). Here, there clearly is an abatable nuisance, but there is no evidence compensable

which sit a house and barn, with house closer the road and the barn offset slightly behind it. The

22 feet.

access.

the Rental Property. level that would support a claim for intentional infliction emotional distress. Rather, while the

properties. The subsequent behavior Healy and McClernon was fully consistent with this

both Defendants. At trial, parties agreed amend both Amended Complaint and Counterclaim to

id. § 37. "Although such campaigns primarily involve only discomfort and annoyance and therefore

loss use of property. There is, however, abundant evidence of annoyance, discomfort, and

Defendants make any use shared right of way, they shall share that year's costs of maintenance

Rental Property also consists an irregularly shaped lot on which sit a house and barn, again with the

With conveyance Parcel Two Marion Towle, title to Parcels One and Two merged,

Ms. McCartney purchased her property from McLernon in 2019. Soon thereafter, for reasons

Instead, Mr. Burns used shared drive only park in ways calculated to frustrate Ms.

behavior was petty and infantile, it was not "so outrageous in character and so extreme in degree as to

add claims for nuisance, in order to conform pleadings to the evidence. Because Ms. McCartney's

cause relatively little harm, as compared other categories interferences

inconvenience. Taking its lead from jury award in Jones v. Hart, where the defendant's conduct

understanding.

they qualify as a private

equally with Ms. McCartney.

passing through an intermediate deed Arthur and Erin St. Onge to J ames Healy, who took title on

house closer road and the barn directly behind it. The house sits on what has been called Parcel

that do not properly appear, Mr. Burns began behaving towards Ms. McCartney and her property rights

McCartney's rights all while there was ample parking on Defendants' side Rental Property.

" c Reformation is appropriate, when an agreement has been made, or a transaction has been

go beyond all possible bounds decent and tolerable conduct in a civilized community and be

trespass and nuisance claims are based on the same general course conduct, court addresses

was a character similar to, if slightly more egregious than Mr. Burns's here, but over a slightly

nuisance because harassment and annoyance is repeated over a prolonged period and the activity

3. Neither party shall park within 8-foot gravel drive (meaning within 4 feet the boundary

One, a parcel that is rectilinear on all but streetfront side; the barn sits on Parcel Two, a rectilinear

June 1, 2001. Prior that transfer, on August 30, 2000, Defendant Haberman and her then co-owner

regarded as atrocious and utterly intolerable." Davis v. Am. Legion, Dep't Vermont, 2014 VT 134, q

in a manner that could most charitably be characterized as passive-aggressive. Mr. Burns, who

And while it was theoretically possible for him have parked entirely on Rental Property, and in a

entered into or determined upon, as intended by all parties interested, but in reducing such

causing interference has no utility." Jd. And while nuisance law "does not concern itself with

them together.

longer period time, court concludes that an award of $15,000.00 represents reasonable

line between two properties); nor shall either party park so as interfere with snow removal or

parcel that is 12 feet narrower on Ms. McCartney's side than Parcel One. To put it another way, the

conveyed an easement over Defendants' home property St. Onges for a shared right way to be

previously had been allowed use a lawnmower owned by McLernon (which was sold with the

way that did not interfere with Ms. McCartney's right ingress and egress, he deliberately chose not

agreement or transaction in writing, .. . through mistake common to both parties, .

20, 198 Vt. 204. Equally, Ms. McCartney could not be said have suffered "distress so severe that no

"A person who intentionally enters or remains upon land in possession another without a *-505 . written

trifles, or seek remedy all petty annoyances everyday life in a civilized community," id. § 30

compensation for Ms. McCartney's annoyance, discomfort, and inconvenience.

other maintenance activities when such are reasonably be anticipated. Except in event a

property line between two properties makes a 12-foot jog the left at the southwest corner of

instrument fails express real agreement or transaction.' " LaRock v. Hill, 131 Vt. 528, 530-31

used as a driveway. That easement ran with land and so transferred Healy when he acquired the

property Ms. McCartney) asserted rights ownership over mower. He also arrogated to himself do so. Indeed, there were multiple incidents in which Mr. Burns waited sometimes until wee

reasonable person could be expected endure it." Jd. Nevertheless, Defendants' incessant harassment

(quoting Rattigan v. Wile, 841 N.E.2d 680, 686 (Mass. 2006)), "if activity causing the interference

privilege to do so is subject liability for trespass." Harris v. Carbonneau, 165 Vt. 433, 437 (1996).

In light of the persistent and provocative nature of Mr. Burns's behavior, the court concludes

snowstorm or other emergency, any party intending undertake any maintenance right of way

property; in fact, deed from St. Onge Healy expressly conveyed the right way. Healy owned

Parcel One

the right to use a dumpster located on Ms. McCartney's property. Soon thereafter, Mr. Burns

hours morning until Ms. McCartney had parked and exited her vehicle before moving his truck

did take a toll. There were incidents too numerous catalog here in which Mr. Burns's behavior had

(1973) (quoting Churchill v. Capen, 84 Vt. 104, 107 (1911)). The party seeking reformation must

Private nuisance, in contrast, is "a substantial and unreasonable interference with a person's interest in

further that a permanent injunction is necessary to foreclose further violations Ms. McCartney's

has no utility, less harm is required demonstrate that an interference causing discomfort and

shall give other party at least 24 hours' notice such intent. In the event of snow, whenever the

Ms. McCartney's title dates back one W.G. Mansfield, who in 1905 owned both Ms. property until he executed a deed in lieu foreclosure on March 10, 2016 significantly, just shy

the use and enjoyment of land." Jones v. Hart, 2021 VT 61, J 26, 215 Vt. 258. "An interference is

from wherever it had been parked a spot clearly intended to make it difficult, if not impossible, for

approached Ms. McCartney with a copy Chaffee survey; he told Ms. McCartney that he wanted

its intended effect, causing Ms. McCartney annoyance, discomfort, and inconvenience well beyond

prove mistake beyond a reasonable doubt. deNeergaard v. Dillingham, 123 Vt. 327, 331 (1963). Here,

annoyance is unreasonable." Jd. q 36. Thus, in a context strikingly similar facts this case, our

rights. Also, as noted above, both Ms. McCartney and Ms. Haberman each committed acts of

NOAA spot forecast for Village Montgomery predicts 2 or more inches of snow over the next 12

McCartney's property and Rental Property. At that time, Mansfield conveyed Parcel One the 15 years. Defendants acquired property in August 2016, and have owned it since. Defendants tenants at the Rental Property park in the shared driveway. This was an odd request; there is

Ms. McCartney exit property. At times, he parked his truck so close to Ms. McCartney's car that

what one might be expected endure in a civilized society. As a consequence, Ms. McCartney

substantial if it exceeds 'the customary interferences a land user suffers in an organized society,' and evidence establishes beyond a reasonable doubt that the 1974 deed reflects a mutual mistake as to

Court has recognized: "One specific example an activity that has no utility is a person intentionally

trespass albeit without either intent or impact Mr. Burns's. Thus, the court will include them in

hours, neither party shall park within right way until snow removal activities are complete.

Rental Property Rushford, retaining what became Ms. McCartney's property and what subsequently

never occupied the Rental Property; since approximately three years after their acquisition of the

unreasonable if 'the gravity harm outweighs the utility of the actor's conduct.' " Jd. (citations

abundant room park multiple vehicles in drive between Rental Property and their home, and the

she had crawl in through passenger door to get into her driver's seat. On other occasions, before

became more or less housebound, fearful going outside lest Defendants harass her. She became

both location and the scope the easement for a shared driveway. The parties that deed cannot

annoying and harassing a neighbor." Jd. The Court has further recognized that in such cases, an award sweep the injunction.

4. This declaration and injunction shall run with land.

became Parcel Two Rental Property. In this conveyance, Mansfield reserved a right of way, over

property, Defendants have used it as a rental.

rental property had benefited for years from an easement for parking in that space. When Ms.

Ms. McCartney had returned home at end the day, he parked his truck in such a way as make

hypervigilant, and lost sleep. Her mother observed her become melancholy and depressed. And the

have intended that the drive sit entirely on Ms. McCartney's property; nor can they have intended to

omitted). The doctrines differ also in kinds harm that must be proven support a damages damages for annoyance, discomfort, and inconvenience is appropriate. /d. ¥ 58.

In all other respects, the court concludes that both parties have failed to prove their claims. The The court awards judgment Plaintiff on her trespass claims in amount $1,000.00,

Parcel One, "at any and all times for purpose removing manure from my barn and shed and

it extremely difficult, if not impossible, for Ms. McCartney use the shared drive. He also, during

McCartney pointed out that she had a copy the survey, and that it made clear that the shared

In meanwhile, Ms. McCartney's property passed through two intermediate deeds to

conflict with Defendants took an emotional toll on Ms. McCartney's relationship with her then-

create a right way so wide that neither could park vehicles on their own property without obstructing

award. "Unlike private nuisance, which requires "substantial harm as a liability threshold,' trespass is

Here, findings above make clear that Mr. Burns subjected Ms. McCartney far more than

absence of findings pertinent those claims is intentional. The court need not recite all facts it has

consisting $950 for property damage, and $50 in nominal damages. On Plaintiff's nuisance claims,

" /d. § 66 (citation

adjoining thereto." Precisely where the barn and shed were located does not appear; the evidence

Christopher McLernon, who purchased it on October 15, 2004. For entire time that McLernon

driveway afforded Defendants an easement for ingress and egress only, Mr. Burns walked away.

snow events, would deliberately shovel snow from Rental Property into snowbanks in the shared

boyfriend. It also had an impact on her work, with days when she was stuck at home, having been right way. Thus, the court concludes that it is necessary reform the deed to express the true

'liability-producing regardless degree of harm the invasion cause[s].'

"the petty annoyances everyday life in a civilized community," and that his actions had no utility

not found. Instead, it suffices observe that the court has carefully considered the parties' allegations court awards Plaintiff $15,000.00. In addition, as the substantially prevailing party, Plaintiff is

supports inference that the "barn" was what is now Defendants' barn on Parcel 2, and the "shed,"

owned property, there was a gravel drive located between the two properties. Healy and his tenants

The next day Mr. Burns began what became a persistent, provocative, and pernicious campaign drive and even onto Ms. McCartney's property, again with clear purpose and effect interfering

intent parties. See Massucco v. Koldziej, 2024 VT 76, § 12 ("The court may reform a deed to

parked in.

omitted). Thus, in trespass, "even when there is no evidence damages, invasion of private property

other than causing her annoyance and inconvenience. The findings also make clear that the campaign

and cannot find by a preponderance evidence that either side has proved all of the essential

entitled recover her costs. V.R.C.P. 54(d)(1). Plaintiff shall submit her verified bill costs within

what is now Ms. McCartney's barn on rear her parcel.

" interference with Ms. McCartney's property rights. Over the ensuing days, months, and years, Mr.

used drive with the understanding that it was a resource shared by the two neighboring properties.

with Ms. McCartney's exercise her property rights. The upshot was that Ms. McCartney took to

CONCLUSIONS

rights still requires 'some recognition, even if only by way nominal damages.'

[3] ^[33]

") (quoting Cassani v. *-310 what 'the deed and extrinsic evidence indicate [the parties] must have intended.'

was successful; as noted in ultimate paragraph the findings above, in addition the innumerable *-308 elements claims other than those specifically addressed above. Specifically, court rejects Ms.

/d. (citation

14 days this Order; Defendants will then have ^[7] days object. The court will include those costs it

In 1920, one M.H. Downey, who evidently then held title Parcel One by virtue a decree

Without objection from McLernon, Healy would park one car alongside his house and another

Burns would deliberately park his vehicle in shared driveway in a way calculated to park Ms.

having a portion her front yard plowed so that she had a place park where Mr. Burns could not

Hale, 2010 VT 8, § 17, 187 Vt. 336). That intent, as informed by both historical reservation a

On these facts, court turns first the dispute over the boundary between the Rental

omitted). There is a further distinction in measure damages: "while annoyance and discomfort

discrete incidents interference with Ms. McCartney's property rights, Mr. Burns caused her

McCartney's claims battery, intentional or negligent infliction of emotional distress, harassment and

determines be allowable in judgment required by V.R.C.P. 58. That document will include the

from Probate Court, conveyed the parcel Hattie Haile. The deed specifically reserved the right of *-275 McCartney in, or make it nearly impossible for her to get into or out her car. On a much more

alongside his barn. There is no evidence, however, that such use persisted for more than the 11-plus

obstruct her ingress and egress.

Property and Ms. McCartney's property and the parties' rights with respect to what all have referred to

right way over Parcel One and more recent practice confirmatory of historical usage, was to

emotional distress that, even if it did not rise level necessary to sustain a claim for intentional

damages are available in both private nuisance and trespass, scope such damages is narrower for

intimidation (to the extent that is even a cognizable claim), and defamation as unproven; equally, it

above declaration rights and permanent injunction. The parties shall cause Judgment be

way reserved in deed from Mansfield Rushford. Subsequent deeds in Defendants' chain title

years when Healy and McLernon were neighbors. Indeed, until very recently Defendants prohibited

sporadic basis, Ms. Haberman did same. It is clear, however, that she was aware and endorsed

While Mr. Burns acknowledged at least some these incidents, he attempted minimize and

as the "shared drive" between the two properties. Here, the parties agree that the Chaffee survey

formally recognize a shared right way running between two houses, of sufficient width allow

private trespass and is limited trespasses that cause substantial bodily harm or serious sickness." Jd.

infliction emotional distress, is fully compensable in nuisance law. annoyance, discomfort, and

rejects Defendants' prayers for relief 4-7 for failure proof.

recorded in land records the Town of Montgomery, with the costs of such recording shared

are silent with respect right way. There is no evidence, however, that it was ever abandoned.

their tenants from parking on Ms. McCartney's side of house.

Mr. Burns's activities; when Ms. McCartney would send emails complaining interference with her

explain them away. The court rejects these attempts as incredible. The unmistakable conclusion is that

ingress and egress, and related maintenance activities, without interfering with the right either

accurately depicts property line. They also agree, through their pleadings and repeated references

ORDER

inconvenience well beyond what one might be expected endure in a civilized society. In short, the

q 69.

evenly between two sides.

After conveyance Parcel One Rushford, it appears that Mansfield continued to own

For reasons that do not appear, Healy had the property surveyed by H.W. Chaffee Surveying in property rights, Ms. Haberman would not even extend courtesy acknowledging their receipt.

Mr. Burns acted intentionally interfere with Ms. McCartney's property rights.

throughout case, that both parties have rights the "shared drive"; the disagreement is over the

property owner park alongside each's respective house.

Applying these principles here, court concludes the Ms. McCartney has proven both a series *-211 evidence makes clear that Ms. McCartney is entitled a more than nominal damages award in

The court grants both sides' request for a declaration as boundaries between their properties

Ms. McCartney's parcel, as well as Parcel Two Rental Property. While the full chain of title is

August 2012. That survey accurately and precisely laid out boundary lines the Rental Property,

And when Ms. McCartney asked a lawyer friend send a letter asking Defendants to cease and desist,

Fortunately, this behavior caused little physical damage Ms. McCartney's property. On one

scope and purpose easement that underlies the shared drive.

The court concludes that only way reflect that intent, consistent with the location the trespasses and a continuing private nuisance, both committed by Mr. Burns. It notes that there is

and as to bounds and rights to use of the shared drive, and for an injunction governing further

nuisance.

Electronically signed pursuant V.R.E.F. 9(d): 6/11/2025 3:14 PM

not in record, it appears that the property passed Abbie Jo Mansfield (W.G.'s widow'). In 1937,

including shared boundary with Ms. McCartney's property; it also accurately depicted the location behavior escalated.

occasion, Ms. McCartney asked Defendants move a metal cabinet that they had left in her barn. Mr.

That easement was first created by Mansfield in 1905, and operated in favor both Ms.

two houses and boundary line between them, is reform the deed in two respects. First, the court

evidence that Ms. Haberman and Ms. McCartney (or her boyfriend or guests) may also have trespassed *-172 On Ms. McCartney's trespass claims against Mr. Burns, the court concludes that she is entitled

use drive:

her Administrator conveyed property Richard H. Pond. It then passed, through a series of various structures then (and now) existing, and the location and scope of the gravel drive as it

It bears emphasis that on none these occasions was Ms. McCartney acting in any way in

Burns refused offer from Ms. McCartney's boyfriend help move it into Defendants' barn and

McCartney's property and Parcel Two Rental Property. The 1974 deed Marion Towle, with

concludes that right way, be truly "shared," must pass equally across the two properties; this

on occasion, but those trespasses were nominal, and effected no meaningful interference with property recover actual damages in amount $950 for the physical damage to her two vehicles. She is

1. The boundary between parties' properties is accurately reflected on the survey created by

existed at that time. At edge the town highway right-of-way, the gravel drive is slightly more

conveyances, Jesse Noble Gilbert and Ruth Noble Gilbert.

purposeful derogation Defendants' property rights. To be sure, there is evidence that on occasion,

muel FQoar, r.

instead moved it just over property line; the only reason for declining the offer help and leaving

its reference an easement "to be used in common with grantors, their heirs and assigns,"

conclusion is bolstered by observation that the boundary line between the two properties roughly

rights. And unlike Mr. Burns's trespasses, which were purposefully calculated annoy and harass, the

H.W. Chaffee Surveying on August 12, 2012, as recorded in the Town Montgomery Town clerk's

also entitled nominal damages for multiple discrete trespasses; the court concludes that $50 is a

Court Judge

than 15 feet wide; by the time it reaches a point parallel the corner Ms. McCartney's house, it has

In 1974, Gilberts conveyed Parcel Two, through a straw transaction involving a local

Ms. McCartney had multiple vehicles parked on her property, including at least partially in shared cabinet on the property line can have been annoy Ms. McCartney. There it sat until blown over

confirmed that easement was reciprocal. The evidence establishes beyond a reasonable doubt,

bisects space between them. Second, assure that the right way is wide enough for reasonable

court cannot conclude that either Ms. Haberman or Ms. McCartney acted with such intent. Thus, the

reasonable award in that regard. As noted above, neither Ms. Haberman's nor Ms. McCartney's

Office on November 26, 2012.

attorney, Marion Towle, who then owned Parcel One. The conveyance Parcel Two included "a

narrowed approximately 10 feet, maintaining that approximate width for rest its length to Ms.

drive, and on at least a few occasions, one those cars was parked on Defendants' side of property

by the wind, causing approximately $500 damage a truck owned nominally by Ms. McCartney's

however, that deed description a 20-foot-wide right of way over Ms. McCartney's property in

court concludes that neither Ms. Haberman's nor Ms. McCartney's trespasses warrants an award of

use and maintenance without interfering with parties' right use their properties to park next to

incidental trespasses resulted in meaningful interference with other property owner's rights; thus,

2. The parties' properties are both benefited and burdened by a right way 15 feet in width,

right way twenty feet (20') in width for ingress and egress of vehicular and pedestrian traffic, be

McCartney's barn. For first 59 feet (approximately) its length, approximately 3.75 feet of the

line. These incursions, however, were at most sporadic and minimal, caused no damage, and resulted

boyfriend but beneficially by her. On another instance, Mr. Burns pulled his truck so close to Ms.

favor Rental Property, measured from the property line, reflects a mutual mistake as both the

even nominal damages. With respect Mr. Burns's trespasses, only evidence actual harm is the *-75 bisected for the first 58.86 feet its length by the property line between the two properties. This right court declines award even nominal damages for those trespasses.

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