Smith v. Town of Derby

Smith v. Town of Derby; 170 Vt. 553; 742 A.2d 757

[Filed 18-Oct-1999]


                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 98-348

                            SEPTEMBER TERM, 1999


Bruce and Pauline Smith 	       }	APPEALED FROM:
	                               }
	                               }
     v.	                               }	Orleans Superior Court
	                               }	
	                               }
Town of Derby, et al.	               }	DOCKET NO. 223-11-96Oscv


             In the above-entitled cause, the Clerk will enter:

	
       Plaintiffs, Bruce and Pauline Smith, appeal from a decision of the
  Orleans Superior Court  holding that a bridge to plaintiffs' property and
  home had not become a town road by virtue of  dedication and acceptance. 
  Plaintiffs appeal, arguing that as a matter of law, the Town of Derby  has
  accepted the bridge as a public road, and that the trial court relied on
  erroneous factors in  reaching a contrary conclusion.  We affirm.

       The bridge in question spans the Johns River and allows automobile
  access only to  plaintiffs' property.  It was built in the 1950's, but the
  court was unable to find who built it.   Through its road commissioner, the
  Town provided some maintenance of the bridge in the  1960's, and in 1973,
  the selectmen approved rebuilding the bridge at town expense.  Minutes of 
  a selectmen's meeting in August, 1973 state that the "present board feels
  that a precedent has  been created, therefore the selectmen will honor the
  past decisions and will rebuild and maintain  the bridge in the future." 
  The minutes add: "This in no way obligate the town to maintain the  drive
  leading to the bridge summer or winter."  The Town repaired and rebuilt the
  bridge on a  number of occasions since 1993, but refused to rebuild it in
  1996, when the bridge sank and  water ran over it, making it unsafe for
  vehicle travel.

       In refusing to repair the bridge, the Town noted that (1) it served
  only one residential lot;  and (2) the road over the bridge was entirely
  private from its intersection with a town highway to  the bridge, and
  thereafter until it reached plaintiffs' home.  Plaintiffs maintained the
  road,  including plowing it and the bridge, during the winter months.  The
  bridge did not appear on the  map of town roads.  The court relied on these
  facts in ruling that the Town had not accepted the  bridge as part of the
  town highway system, and, therefore, was not legally obligated to rebuild
  it.

       The issue of whether there has been a dedication and acceptance is a
  mixed question of fact  and law.  See Town of Springfield v. Newton, 115
  Vt. 39, 47, 50 A.2d 605, 610 (1947).  The 


 

  fact-finder must determine the "essential facts" and the court must decide
  whether those facts  meet the legal standard.  Id.  In this case, the
  superior court was the finder of fact and made the  determination whether
  those facts met the legal standard for dedication and acceptance.

       To make a road a public highway by dedication and acceptance, there
  must be both a  dedication by the private owner and an acceptance of that
  dedication by the town.  See Okemo  Mountain, Inc. v. Town of Ludlow, 164
  Vt. 447, 454-55, 671 A.2d 1263, 1269 (1995).  A  bridge may be dedicated
  and accepted as a public highway.  See Newton, 115 Vt. at 43, 50 A.2d   at
  608.

       The parties agree that there has been a dedication, but dispute
  whether the Town has  accepted that dedication.  To constitute acceptance,
  there must be both an act of acceptance and  an intent to accept the
  dedication.  See Okemo Mountain, Inc, 164 Vt. at 455, 671 A.2d  at 1269. 
  The intent to accept "may be inferred from evidence of assuming the burden
  of maintaining the  road."  Id.  Intent "is a question of fact."  Id.

       The trial court found that plaintiffs failed to show that the town,
  through its selectmen,  intended to accept the dedication, and we cannot
  conclude that this finding was clearly  erroneous.  See Bissonnette v.
  Wylie, 166 Vt. 364, 370, 693 A.2d 1050, 1055 (1997) (factual  findings not
  disturbed unless clearly erroneous).  Although the court could infer
  acceptance from  maintenance and repair, it was not required to do so. 
  Town highways are "exclusively  maintained by the towns," 19 V.S.A. §
  301(7); see also id. §  303 (town highways "shall be  under the general
  supervision and control of the selectmen of the town"), but routine 
  maintenance of the bridge, like snow removal, was performed by plaintiffs. 
  It makes no sense to  have a public bridge be accessible only through a
  private road.  Thus, there is no evidence of  public use of the bridge.  If
  anything, under plaintiffs' theory, the bridge must be a class 4  highway. 
  The Town's obligation to maintain a class 4 road  is limited by the
  "necessity of the  town, the public good and the convenience of the
  inhabitants of the town."  19 V.S.A. § 310(b).  Here, neither necessity nor
  public good support maintaining a bridge for the sole use of the  owners of
  one parcel of land and their invitees.

       We also agree that the selectmen's 1973 resolution does not show
  acceptance as a matter of  law.  The resolution is internally inconsistent
  because the selectmen accepted an obligation to  make structural repairs to
  the bridge, but continued to call it a "private bridge."  Moreover, they 
  refused such summer and winter maintenance of the road that would make the
  bridge accessible  to the public.

       Plaintiffs fault the trial court for its choice of factors to consider
  and its findings on repair  of the bridge.  On the latter point, they argue
  that the court's finding that repair of the bridge by  the Town was not
  "continuous" is clearly erroneous, especially in view of the subsidiary 
  findings.  The court's finding on continuity was not to suggest, as
  plaintiffs argue, that the court  found that there were instances when the
  Town would not repair the bridge.  Instead, the court  found that each
  repair instance required a separate discussion and decision of the
  selectmen, a  process inconsistent with acceptance as a public highway.  As
  to the factors the court considered,  each one, or its opposite, has been
  used by this Court in earlier cases.  See Gardner v. Town of  Ludlow, 135
  Vt. 87, 90, 369 A.2d 1382, 1384 (1977) (acceptance is supported in part by 

 

  placement of road on state highway map); Druke v. Town of Newfane, 137 Vt.
  571, 576, 409 A.2d 994, 996 (1979) (acceptance shown in part by public
  usage in reliance on the dedication);  Newton, 115 Vt. at 45, 50 A.2d  at
  609-10 (although bridge provides access only to one business,  up to
  twenty-five cars a day cross the bridge, and return, without going to the
  business).

       Affirmed.

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       JOHNSON, J., dissenting.   I respectfully dissent.  For years we have
  stated that  acceptance of a road by a town may be inferred from evidence
  that the town, acting through its  proper officials, has voluntarily
  assumed the burden of maintaining a road.  Springfield v.  Newton, 115 Vt.
  39, 43-44, 50 A.2d 605, 608-9 (1946).  By allowing acceptance to be
  inferred,  we resolved the problem that is in evidence here, i.e. that
  later Select Boards will balk at  continuing to repair roads, or in this
  case, a bridge, at Town expense as those expenses increase,  despite the
  fact that the road or bridge has actually been accepted de facto by a
  lengthy course of  conduct.

       Today's opinion rejects the law of Springfield by stating that the
  trial judge is not  compelled to draw the inference of acceptance, even
  though the facts were particularly strong in  this case.  The bridge was
  built in 1957 and has been repaired by the Town a number of times.   The
  trial court found that in the 1960's, the Town made necessary repairs such
  as replacing  planking and gravel.  The court further found that in 1973
  the Town rebuilt the bridge almost  entirely, at its own expense.  Minutes
  of the Select Board meeting in August 1973 record that  "the selectmen will
  honor the past decisions and will rebuild and maintain this bridge in the 
  future."  For twenty years, later boards behaved as though they were bound
  to maintain the  bridge.  In September 1987, the Board voted to repair the
  railing on the bridge.  In fall 1989, the  Town road crew made further
  repairs to the planking and railings.  In September 1993, the  Town Board
  voted again to repair the bridge.  And in 1995, plaintiffs were contacted
  by the  Chairman of the Town Board who told them the Town had budgeted for
  further repairs.  Finally,  at the Board meeting on April 1, 1996, the
  bridge was discussed again.  Page two of the minutes  of that meeting
  contains the entry: "Mr. Orr wants to condemn the Bruce Smith Bridge.  This
  is  a town maintained bridge that connects to a private drive.  There is an
  obligation by the Town to  fix this bridge.  This commitment was made by
  the Select Board in 1984."  The Board then  obtained an estimate of the
  cost of repairs and at that point, decided not to repair the bridge 
  because it was too expensive.

       Although the forty-year history of repairs in this case is so strong
  as to make me find that  an inference of acceptance is compelled, this case
  does not require an inference of acceptance to  be drawn.  The Town made an
  explict commitment, noted in the minutes of the Board meeting in  August
  1973, to "rebuild [the bridge] and continue maintenance in the future." 
  Furthermore, in  1996, the Board referred to having made a similar
  committment in 1984. Although the Select  Board did not use the word
  "accept," its intent could not have been clearer.  It was not for later 
  Boards to set aside because the repairs became too expensive.  The trial
  court found that the  1973 decision was ambiguous and therefore not an
  acceptance because the Board 

 

  added the caveat that the decision to rebuild and maintain the bridge in
  future would not  "obligate the Town to maintain the drive leading to the
  bridge summer and winter."  While I  agree that it is unclear what "the
  drive" refers to, the Board was accepting responsibility for the  bridge in
  future.

       The rationale of the majority opinion has nothing to do with our law
  and everything to do  with whether it makes sense for the Town to maintain
  a bridge that goes to a single residence.   But that was the Town's
  decision to make and it made the decision affirmatively in 1973. (FN1) 
  The property owner has presumably relied upon it since then.  Whether the
  decision was wise or  in the public interest is not the issue.  The
  mischief that is worked by the opinion is that road  maintenance disputes,
  which are frequently between towns and residents who are stranded on 
  little-used spurs, or on roads that lead to a single house, will now be
  decided on a "common  sense" basis, rather than under our law of dedication
  and acceptance.  Because I believe plaintiff  proved acceptance, I would
  reverse.  




	                               BY THE COURT:



Dissenting:	                       _______________________________________
	                               Jeffrey L. Amestoy, Chief Justice

_______________________________	       _______________________________________
Denise R. Johnson, Associate Justice   John A. Dooley, Associate Justice

	                               _______________________________________
	                               James L. Morse, Associate Justice

	                               _______________________________________
	                               Marilyn S. Skoglund, Associate Justice


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                                  Footnotes

                                   
FN1.  The majority also makes the assumption that the bridge must be a
  class 4 highway and  concludes the Town may therefore choose to cease
  maintaining it, limited only by the necessity  of the Town, the public good
  and convenience of residents.  This issue was not raised before  the trial
  court and was not a part of the trial court's decision; the trial court
  ruled that there  was no acceptance and our review should be limited to
  that issue.