In re Town Highway No. 20 of Town of Georgia

In re Town Highway No. 20 of the Town of Georgia (2002-389); 175 Vt. 626;
834 A.2d 17

2003 VT 76

[Filed 23-Jul-2003]

                                 ENTRY ORDER

                                 2003 VT 76

                      SUPREME COURT DOCKET NO. 2002-389

                              APRIL TERM, 2003

  In re Town Highway No. 20	       }	APPEALED FROM:
  of the Town of Georgia	       }
                                       }
                                       }	Franklin Superior Court
                                       }
                                       }
                                       }	DOCKET NO. 173-97FC

                                                Trial Judge: Ben W. Joseph

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


       ¶  1.  Defendant Town of Georgia (the Town) and Intervenors Gregory
  and Janet Bechard (Intervenors) appeal from a superior court decision
  ordering the Town to allow Petitioner John Rhodes (Petitioner) to improve
  and maintain a section of Town Highway #20 (TH #20) and ordering
  Intervenors to remove all personal property they had stored in that section
  of the TH #20 right of way.  Intervenors separately appeal from denial of
  their cross-claim that they had acquired title to an acre of Petitioner's
  land by adverse possession and had acquired a prescriptive easement over a
  road, called the "Pent Road", through Petitioner's property.  On appeal,
  the Town and Intervenors make several procedural and substantive claims. 
  We affirm.

       ¶  2.  The first part of this dispute revolves around the border
  between Petitioner's farm and Intervenors' farm, both located in the Town
  of Georgia.  Much about this border is disputed, including whether TH #20
  constitutes a portion of this border.  Intervenors claim that the road does
  not abut Petitioner's property because it runs to the south, not to the
  north, of Intervenors' house.  The trial court, however, found that a
  600-foot section of TH #20 formed a border between the northwest corner of
  Intervenors' property and the southeast portion of Petitioner's property,
  finally meeting with Bradley Hill Road to form a "T" intersection.
        
       ¶  3.  On June 10, 1970, the Selectboard of the Town decided to hold
  a hearing on whether to discontinue a portion of TH #20 and legally
  reclassify that section from a town highway to a trail. (FN1)  At the hearing,
  held on June 30, 1970, the Selectboard considered the proposed
  reclassification.  Ten months later, on May 10, 1971, the Selectboard voted
  to reclassify a portion of TH #20 as a trail.  Intervenors claim that the
  portion of TH #20 at issue in this case was exactly that part of TH #20
  that was reclassified.  The trial court, however, found many discrepancies
  between the Selectboard's reclassification order and the actual portion of
  TH #20 in dispute, stating that "the 1971 order does not describe an
  existing section of TH #20."  Additionally, the Town was required to give
  notice of the hearing to all persons owning or interested in land abutting
  the highway - which included Petitioner's father, H.C. Rhodes, who owned
  the farm at the time - via registered mail.  19 V.S.A. § 531 (1968),
  repealed by 1985, No. 269 (Adj. Sess.).  The parties dispute whether or not
  Petitioner's father received proper notice, although the superior court
  found that he had not.

       ¶  4.  In 1995, Petitioner formally asked the Selectboard to
  determine the location of TH #20 in the southeastern area where it abuts
  his farm and requested that the Town reconsider the 1971 Selectboard
  reclassification of the road as a trail.  He also sought permission to make
  improvements to the roadway in order to allow vehicles to safely cross TH
  #20 from Bradley Hill Road and to make the road safe for transit over rock
  ledges located in the TH #20 right of way.  Additionally, Petitioner sought
  an order requiring Intervenors to remove the fenced gate they had erected
  in the middle of TH #20 and the old farm equipment and wood they had stored
  in the highway right of way that blocked access to the Pent Road.  On April
  18, 1997, the Selectboard denied all of Petitioner's requests.

       ¶  5.  Petitioner then appealed the decisions of the Town of Georgia
  Selectboard to the Franklin County Superior Court, pursuant to 19 V.S.A. §§
  34 and 740.  Intervenors sought and were granted leave to intervene.  On
  June 26, 2002, the superior court found that TH #20 was legally laid out in
  1813 and that the reclassification in 1971 was void.  The court also found
  that the Selectboard had acted unconstitutionally in denying Petitioner's
  requests and ordered the Town to allow Petitioner to improve TH #20 and to
  direct Intervenors to remove their personal property from the road. 
  Intervenors and the Town appealed the trial court's decision and the Town
  filed a cross-appeal.

       ¶  6.  We first address Intervenors' claims.  Intervenors' first
  claim on appeal is that the trial court erred in finding that the portion
  of TH #20 that runs along the northwestern border of their property was
  laid out in 1813 in compliance with the then-applicable law.  Intervenors
  claim that the law in effect at the time TH #20 was laid out was a 1782 law
  that required a highway to be laid out by "chain and compass."  See "An Act
  Directing the Laying Out of Highways," Oct. 21, 1782, reprinted in 13 State
  Papers of Vermont 129-30 (J. A. Williams ed., 1965).  Intervenors' charge
  that because the original surveyors described the highway in "rods and
  degrees," and not "chain and compass," they did not substantially comply
  with the statute in effect at the time and thus never officially created a
  highway.  From this proposition they argue that TH #20 should be laid out
  to the south of their house, and not to the north.  We disagree.
        
       ¶  7.  We have difficulty understanding why Intervenors' argument
  should lead to the conclusion that TH #20 should be located to the south of
  their house, rather than to the north.  Nevertheless, for purposes of this
  appeal, we will address the merits of their argument.  The trial court held
  that because "chains" refers to a measurement of four rods and degrees are
  determined by a compass, the description of the highway substantially
  complied with the statute, and thus TH #20 was correctly laid out in 1813. 
  We agree with the superior court that the highway was correctly laid out in
  1813.  We find, however, that the governing law when TH #20 was laid out
  was an 1808 law, not the 1782 law cited by Intervenors.  That 1808 law
  required "every highway or road which shall in future be laid out or
  opened, shall be actually surveyed . . . ascertaining the breadth, course
  and distance of such road."  1 Laws of Vermont, ch. XLV, § 1, at 446
  (1808); see also Kelly v. Town of Barnard, 155 Vt. 296, 302, 583 A.2d 614,
  618 (1990) (in 1816 and 1817, the procedure for establishment of a public
  highway was governed by 1 Laws of Vermont, ch. XLV, § 1).  Because TH #20
  was described in rods and degrees, a measurement that conveys the "breadth,
  course, and distance" of the highway, it was properly laid out in 1813.  We
  do not need to determine whether "rods and degrees" is equal to "chain and
  compass" because the applicable law in 1813 does not require a measurement
  in chain and compass.  See Samplid Enters. v. First Vt. Bank, 165 Vt. 22,
  28, 676 A.2d 774, 778 (1996) (this Court may affirm a lower court judgment
  where the right result was reached for the wrong reason).

       ¶  8.  To the extent that Intervenors' claim is more generally that
  the trial court was incorrect in finding that TH #20 was laid out to the
  north and not the south of their house, we reject that claim.  The trial
  court's findings of fact stand unless they are clearly erroneous.  Highgate
  Assocs. v. Merryfield, 157 Vt. 313, 315, 597 A.2d 1280, 1282 (1991).  There
  was sufficient evidence for the lower court to determine that the correct
  layout of TH #20 is to the north of Intervenors' house.  At least two
  surveyors testified that the road runs to the north of Intervenors' house. 
  Additionally, a 1948 United States Geological Survey Map and other aerial
  maps and photographs taken in 1941, 1962, and 1996 show the road to be
  located to the north of Intervenors' house.  Accordingly, we uphold the
  court's finding that TH #20 constitutes the northwestern border of
  Intervenors' land and the southeastern border of Petitioner's land.

       ¶  9.  Intervenors' second claim on appeal is that the trial court
  erred in finding that the portion of TH #20 at issue was improperly
  discontinued in 1971.  Intervenors argue that the Selectboard substantially
  complied with the applicable statutory requirements to discontinue highways
  in that proper notice of the hearing was given to the required parties and
  that the discontinued portion of the road was sufficiently described.  We
  disagree.

       ¶  10.  When purporting to discontinue or reclassify a highway, a
  town must substantially comply with the statutory method for discontinuance
  or the resultant change will be void.  In re Bill, 168 Vt. 439, 442, 724 A.2d 444, 446 (1998).  We presume actions taken by a selectboard within the
  scope of its duties to be in accordance with statutory requirements.  Id. 
  However, when a selectboard acts outside its statutory authority, it acts
  without jurisdiction and consequently its proceedings are void and may be
  impeached at any time.  Id.

       ¶  11.  The lower court found that the 1971 Selectboard did not
  substantially comply with the statute, based on three factual findings. 
  First, the trial court found that Petitioner's father - who owned the land
  in 1971 - did not receive the statutorily required notice of the 1971
  hearing to discontinue TH #20.  Second, the court found that the 1971 vote
  to discontinue the highway took place ten months after the hearing, not
  within the sixty days that the statute required.  See 19 V.S.A. § 711
  (recodifying the former 19 V.S.A. § 344 (1968)).
        
       ¶  12.  Finally, the court found that the 1971 Selectboard order
  discontinuing a portion of TH #20 did not describe an existing section of
  TH #20.  The portion of TH #20 that was discontinued was described in the
  minutes of the 1971 hearing as beginning at a point .34 of a mile west of
  the intersection of Town Highway #10 and TH #20.  TH #20, however, does not
  intersect with TH #10.  The court also found that the section of TH #20
  that was described in the notice of intention to discontinue was different
  from that referred to in the May 10, 1971 vote to discontinue.  The notice
  described the section of TH #20 to be discontinued as the portion between
  the Intervenors' farmhouse and that of Hosanna Montcalm.  Montcalm's
  farmhouse was not .34 miles west of the intersection with either of the two
  roads, TH #3 and TH #27, that intersect with TH #20.

       ¶  13.  We need not address two of the grounds on which the trial
  court found lack of substantial compliance - the lack of notice to
  Petitioner's father and the running of the time limit for taking action -
  although we note our holding in Haynes v. Lassell, 29 Vt. 157, 160 (1857)
  that discontinuance of a highway may not be collaterally attacked on the
  ground that the abutter did not receive notice of the proceeding.  We
  conclude that the court's decision was justified by its finding that the
  description of the section that the Selectboard arguably downgraded does
  not include the portion of TH #20 between the land of Petitioner and
  Intervenors and that the description of the section proposed to be
  downgraded is not consistent with the description of the section the
  Selectboard voted to downgrade.  We recognize Intervenors' argument that we
  should accept the Town Zoning Administrator's testimony that the
  Selectboard meant TH #3, rather than TH #10, in describing the road with
  which TH #20 intersects.  The trial court, however, may credit or reject
  this testimony, and the court rejected it.  See Highgate Assocs., 157 Vt.
  at 315, 597 A.2d  at 1282.  Where the trial court has applied the correct
  legal standard and the conclusions are reasonably supported by the factual
  findings, those conclusions of law will be upheld.  Id. at 315-16, 597 A.2d 
  at 1281-82.  Here, the trial court properly found that there was no
  effective discontinuance of the road in the area in dispute.  See Capital
  Candy Co. v. Savard, 135 Vt. 14, 16-17, 369 A.2d 1363, 1365-66 (1976)
  (public use of a highway is effectively discontinued only when certain
  statutory procedures are followed).

       ¶  14.  Intervenors also attack the trial court's finding that TH #20
  was improperly discontinued in 1971 on the grounds that Petitioner's claims
  were barred by the statute of limitations and the equitable doctrine of
  laches.  Intervenors claim that at the time of reclassification, the
  statute allowed Petitioner twenty days to appeal the highway
  reclassification and Petitioner's failure to appeal within that time
  resulted in a bar by the statute of limitations.  Intervenors further
  assert that Petitioner is also barred by the doctrine of laches for waiting
  twenty-six years to appeal the decision.  They claim that the trail
  classification of the abutting road is favorable for their property, and
  that their use of the road for storage is sufficient prejudice to prove
  laches.  We find no merit to either claim.

       ¶  15.  The holding of Bill, 168 Vt. at 442, 724 A.2d  at 446, is that
  a discontinuance decision that does not substantially comply with the
  statutory requirements is void and can be attacked at any time.  This Court
  likened the lack of statutory compliance to a lack of subject matter
  jurisdiction, id., and allowed a challenge to a 1926 decision to
  discontinue a road.  Here, there is another reason to reject Intervenors'
  argument that Petitioner has taken an untimely appeal.  The trial court
  ruled that the discontinuance decision did not, by its terms, cover the
  section of TH #20 in dispute.  Thus, Petitioner's father did not suffer an
  adverse decision from which he should have appealed.
        
       ¶  16.  "Laches is the failure to assert a right for an unreasonable
  and unexplained period of time when the delay has been prejudicial to the
  adverse party, rendering it inequitable to enforce the right.  Laches does
  not arise from delay alone, but from delay that works disadvantage to
  another."  Stamato v. Quazzo, 139 Vt. 155, 157, 423 A.2d 1201, 1203 (1980)
  (internal citations omitted).  Intervenors made no requests in the lower
  court that it make a finding with respect to laches, and no findings were
  made, including any finding with respect to prejudice.  "It is our long
  standing rule that this court should not put the lower court in error when
  the latter was not afforded the opportunity of considering and acting upon
  the issue itself."  Laird Props. New England Land Syndicate v. Mad River
  Corp., 131 Vt. 268, 282, 305 A.2d 562, 570 (1973).  Thus, we reject
  Intervenors claim for laches at this stage.

       ¶  17.  We turn now to the arguments made by the Town.  In its brief,
  the Town explicitly states that it does not join the Intervenors' claims on
  appeal.  The Town's sole contention is that it did not unconstitutionally
  discriminate against Petitioner, as the trial court found.  Once we affirm
  the trial court's decision that the disputed portion of TH #20 is a
  highway, however, the Town asserts its willingness to comply with this
  Court's decision and fully accept the trial court's order, including
  allowing Petitioner to improve and maintain TH #20, and ordering
  Intervenors to remove all of their personal property from the TH #20 right
  of way.  Because we uphold the trial court's classification of TH #20 as a
  highway, and the Town is willing to abide by the superior court's order, we
  do not reach the constitutional issue.

       ¶  18.  Finally, we turn to the cross-appeal issues raised by
  Intervenors.  Intervenors claim that the court erred in failing to find
  that they established their claim to a one-acre piece of land on the
  southeastern corner of Petitioner's property through adverse possession and
  that they established a prescriptive easement over the Pent Road.  We
  reject both claims.

       ¶  19.  We are uncertain of the exact nature of Intervenors' adverse
  possession claim.  During Petitioner's testimony, Intervenors' lawyer asked
  him if he claimed ownership of a one-acre area just north of the TH #20
  right of way near Intervenors' house.  Petitioner answered that he did not. 
  The court asked Intervenors' lawyer to pursue the issue, but all he did was
  establish that his clients claimed ownership of the area and Petitioner did
  not.  Although there is no indication of how and why Intervenors claimed
  ownership, the issue has been posed to us as one of adverse possession.

       ¶  20.  To claim property by adverse possession, Intervenors must
  have established open, notorious, hostile, and continuous possession of the
  property for fifteen years.  12 V.S.A. § 501; Lawrence v. Pelletier, 154
  Vt. 29, 33, 572 A.2d 936, 939 (1990).  Intervenors have the burden of
  proving these elements.  Bemis v. Lamb, 135 Vt. 618, 621, 383 A.2d 614, 617
  (1978).  As the trial court found, Intervenors never established the
  elements of adverse possession for the fifteen-year period.  Petitioner's
  cryptic testimony that he does not claim ownership of the one-acre area
  does not prove these elements.  The only consistent evidence of adverse
  possession was Intervenors' occupation of a portion of the TH #20 right of
  way, which belongs to the Town rather than Petitioner; land that is held by
  a municipality for public use. however, is exempt from claims of adverse
  possession.  12 V.S.A. § 462; Jarvis v. Gillespie, 155 Vt. 633, 641-43, 587 A.2d 981, 986-87 (1991).  Intervenors may indeed own the one-acre area, as
  Petitioner apparently concedes, but they have failed to obtain a proper
  adjudication of their ownership right in this litigation.
        
       ¶  21.  The prescriptive easement claim deals with the Pent Road. 
  From 1971 to 1994, Petitioner had access to the upper section of his
  property via the Pent Road that extends north over his property from the
  intersection of Bradley Hill Road and TH #20.  The Town agreed to install a
  large culvert under the Pent Road near TH #20 in 1971, which made it
  possible for tractors and vehicles to access a gravel pit on Intervenors'
  property at the end of the Pent Road.  With Petitioner's permission,
  Intervenors used the Pent Road to reach their gravel pit from 1973 to 1994. 
  In 1994, apparently not long after Petitioner expressed interest in
  subdividing his property, Intervenor Gregory Bechard's father - who owned
  the farm at the time - requested that the Town remove the culvert.  The
  culvert was subsequently removed by the Town on the order of Town Selectman
  Stephen Bechard, brother of Intervenor Gregory Bechard.  Without the large
  drain, it was impossible to drive vehicles from Bradley Hill Road up the
  Pent Road.  After the culvert removal, Petitioner refused to allow
  Intervenors to cross his property.  Intervenors, however, did instruct a
  contractor to use the Pent Road to access their property after 1994,
  without Petitioner's permission.

       ¶  22.  The elements necessary to establish a prescriptive easement
  are essentially the same as those for adverse possession.  Cmty. Feed
  Store, Inc. v. Northeastern Culvert Corp., 151 Vt. 152, 155, 559 A.2d 1068,
  1070 (1989).  The trial court found that Intervenors used Petitioner's Pent
  Road, over which they claim a prescriptive easement, with the permission of
  the Petitioner.  Use of the road by permission is not adverse unless there
  has been a repudiation "either made know expressly to the owner or clearly
  indicated by unequivocal actions."  In re Estate of Smilie, 135 Vt. 217,
  220, 372 A.2d 540, 543 (1977).  Additionally, use since 1994, even if
  adverse, is not sufficient to establish a prescriptive easement because use
  for less than fifteen years does not fulfill the statutory time
  requirement.  12 V.S.A. § 501; Cmty. Feed Store, 151 Vt. at 155, 559 A.2d 
  at 1070.  Thus, Intervenors' claim to use of the Pent Road through
  prescriptive easement fails.

       Affirmed.


                                       BY THE COURT:


                                       _______________________________________
                                       Jeffrey L. Amestoy, Chief Justice

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

                                       _______________________________________
                                       Marilyn S. Skoglund, Associate Justice

                                       _______________________________________
                                       Frederic W. Allen, Chief Justice (Ret.)
                                       Specially Assigned


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                                  Foontotes


FN1.  Because trails are not highways, towns are not responsible for
  maintaining trails, including trail culverts and bridges.  19 V.S.A. §
  302(a)(5).