Okemo Mountain, Inc. v. Lysobey

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Okemo Mountain, Inc. v. Lysobey (2003-514); 178 Vt. 608; 883 A.2d 757

2005 VT 55

[Filed 10-May-2005]

ENTRY ORDER

2005 VT 55

SUPREME COURT DOCKET NO. 2003-514

DECEMBER TERM, 2004

Okemo Mountain, Inc. } APPEALED FROM:
}
}
v. } Windsor Superior Court
}
John Lysobey, Christine Lysobey, }
Wayne Lysobey, and Beverly }
Lysobey, et al. }
} DOCKET NO. 381-10-98 WrCv

Trial Judge: Alan W. Cook

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

¶ 1. The Lysobeys and Okemo Mountain, Inc. (now known as Okemo
LLC) own adjoining parcels of land on Okemo Mountain in Ludlow, Vermont.
Both have appeared in this Court three times before to litigate matters
relating to the Lysobeys' access to their land. See Dep't of Forests,
Parks and Recreation v. Town of Ludlow Zoning Bd., 2004 VT 104, 15 Vt. L.
Wk. 359, 869 A.2d 603; Okemo Mountain, Inc. v. Town of Ludlow, 171 Vt. 201,
762 A.2d 1219 (2000); Okemo Mountain, Inc. v. Town of Ludlow Zoning Bd. of
Adjustment, 164 Vt. 447, 671 A.2d 1263 (1995). This appeal concerns the
location of the boundary between their respective parcels.

¶ 2. Okemo brought a declaratory judgment action against the
Lysobeys in Windsor Superior Court to determine the location of the
boundary between Okemo's property and the Lysobeys'. The trial court,
after taking extensive evidence, issued findings of fact setting the
boundary's location 200 rods west of the Head of the Ludlow First Division.
The court further concluded as a matter of law that the Lysobeys'
predecessors in interest had acquiesced in the boundary location there. On
appeal, the Lysobeys contest both conclusions. As explained below, the
trial court's boundary determination is supported by credible evidence and
the court correctly applied the requirements for acquiescence. Therefore,
we affirm.

¶ 3. The Lysobeys' land is roughly triangular, bounded to the south
by state-owned lands, to the north and west by Coleman Brook, and to the
east by Okemo's land, which extends east to the Head of the Ludlow First
Division. (FN1) It is undisputed that this eastern boundary runs
approximately north-south; at issue is whether the boundary is 180 rods
west of the Head of the First Division, as the Lysobeys claim, or 200 rods
west, as Okemo contends. A map is appended to this opinion [not available
online] for illustration only. The Lysobeys claim the boundary is the line
connecting points G, D, and E on the map. The trial court found that the
boundary is the line connecting points B, C, and F.

¶ 4. The disputed boundary has been defined, in every deed in the
Lysobeys' chain of title, by reference to the western edge of the parcel to
the east. The Lysobeys' chain of title begins in 1836 with a survey by
Joel Warner for himself and Isaac Gibson. At the time of that survey,
Isaac Gibson owned the parcels on both sides of the now-disputed boundary.
The Warner-Gibson survey parcel includes all of the land now owned by the
Lysobeys, plus additional land to the west and south. It defines the
eastern boundary as running "southerly on [Isaac] Gibson's west line and
A.G. Taylor's west line." It is undisputed that A.G. Taylor's west line
was 200 rods from the Head of the First Division at the time of the survey.
Every subsequent deed in the Lysobeys' chain of title refers to the 200-rod
description referenced in the Warner-Gibson deed.

¶ 5. Okemo's chain of title, defining the property just to the
east of the Lysobeys' land, also defines the disputed boundary. First, in
1824, Rufus Barton conveyed ninety acres of as-yet unsurveyed land to
Samuel Read, who had it surveyed soon after by N.P. Fletcher. Although the
Fletcher survey describes a parcel of land measuring 180 rods east to west,
all of the later conveyances in Okemo's chain of title define the western
boundary by reference to the 1836 Warner-Gibson survey of the land to the
west. As the trial court found, the Warner-Gibson survey describes the
disputed boundary as a straight north-south line 200 rods west of the Head
of the Ludlow First Division. The court also found that Okemo's current
deed locates the disputed border approximately 200 rods west of the Head of
the First Division. It is the conflict between the 1824 Fletcher survey,
Barton-Read deed, and all other surveys and land documents which gives rise
to this dispute.

¶ 6. On appeal, the Lysobeys contend that the trial court erred
both in determining that the disputed boundary was 200 rods west of the
Head of the First Division, and in concluding that the Lysobeys'
predecessors in interest acquiesced in that location. We consider both
arguments in turn.

¶ 7. The Lysobeys advance two grounds of error with respect to the
boundary location. First, they contend, based on the Barton-Read deed and
the Fletcher survey, that Okemo's property extends 180 rods from east to
west, and that first-in-time deeds and surveys are controlling. Second,
the Lysobeys ask this Court to discount surveyor John Bruno's testimony and
his surveys defining the location of Coleman Brook, which they allege Mr.
Bruno misrepresented, either fraudulently or by mistake.

¶ 8. The location of a boundary line is a question of fact, to be
determined on the evidence. Pion v. Bean, 2003 VT 79, ¶ 15, 176 Vt. 1,
833 A.2d 1248. We review findings of fact only for clear error. V.R.C.P.
52(a)(2). Findings will be sustained on appeal unless, viewing the
evidence in the light most favorable to the prevailing party, there is no
credible evidence to support the findings. Mullin v. Phelps, 162 Vt. 250,
260, 647 A.2d 714, 720 (1994). If the findings are not clearly erroneous,
we will not disturb them "despite inconsistencies or substantial evidence
to the contrary," Pion, 2003 VT 79, ¶ 15, or when they are adopted
verbatim from a party's proposed findings. V.R.C.P. 52(a)(2); In re M.B.,
162 Vt. 229, 239, 647 A.2d 1001, 1006 (1994).

¶ 9. The Lysobeys argue that the 1824 deed clearly defined the
east-west dimension of the Barton-Read parcel as 180 rods. The trial court
agreed, and further found that this dimension would have made that parcel
twenty rods narrower than the neighboring parcels. The trial court went on
to find, however, that "there is no conveyance since the Barton to Read
deed in 1824 that describes the east-west dimension of the lot as 180
rods," and found that the 200-rod location was accurate and the 180-rod
location was a mistake. This finding was supported by credible evidence,
including every relevant conveyance and survey since 1836, and we will
therefore not disturb it.

¶ 10. The Lysobeys next contend, based on Wysinski v. Mazzotta, 472 A.2d 680 (Pa. Super. Ct. 1984), that senior deeds (i.e., Barton-Read)
control over later instruments, and that the trial court therefore erred in
considering any deeds executed after 1836. But their reliance on Wysinski
is misplaced. In Wysinski, a Pennsylvania court held that, in a conflict
between two deeds from the same grantor, the senior deed would control.
477 A.2d at 683. In this case, however, the two parcels in question were
only under common ownership from 1836-1839, when Isaac Gibson owned both.
Gibson's subsequent conveyances of both parcels actually support the trial
court's finding that the disputed boundary is approximately 200 rods west
of the Head of the First Division because both deeds Gibson executed as
grantor reflect that location. Thus, the trial court's reliance on
post-1836 instruments in the Lysobeys' and Okemo's chains of title was not
error, and the trial court properly found that the 180-rod distance in the
Barton-Read deed was a mistake.

¶ 11. The Lysobeys also maintain that Coleman Brook's location on
the maps prepared by Okemo is not its true location, and that this supports
their claim to the 180-rod location. They claim that the actual location
of the brook is about 300 feet north of its location on Okemo's maps.
However, the trial court found that the location of Coleman Brook does not
settle the disputed boundary's location because the brook intersects the
disputed boundary at only one point.

¶ 12. There is credible evidence supporting the trial court's
determination of Coleman Brook's location. The trial court found that the
brook's location on Okemo's maps is consistent with other deeds conveying
lands north of the brook. The trial court also found that those deeds do
not make sense under the Lysobeys' theory about the brook's location.
Based on these findings, the trial court concluded that the Okemo maps
reflected the true location of Coleman Brook, and that the Lysobeys'
argument was not credible. The trial court therefore adopted, for purposes
of its final order, the location of the brook proposed by Okemo. This
location is reflected in the illustrative map incorporated into this order.
As noted above, the decision to credit a particular witness or piece of
evidence is reserved to the fact-finder, and will not be disturbed without
some compelling indication of error. Mullin, 162 Vt. at 261, 647 A.2d at
720. Finding no such indication here, we will not disturb the trial
court's findings or the conclusions based on them.

¶ 13. Second, the Lysobeys maintain that the trial court
erroneously concluded that the boundary had been established at the 200-rod
location by acquiescence, arguing that the boundary had not been
established by acquiescence because they had no knowledge of the boundary
location. However, the trial court concluded that the Lysobeys'
predecessors in interest had acquiesced in the location of their eastern
boundary at the 200-rod location for the statutory period, and that Okemo's
claim of ownership was therefore superior to the Lysobeys'. Our review of
the trial court's conclusions of law is nondeferential and plenary. In re
Estate of Harding, 2005 VT 24, ¶ 6, 16 Vt. L. Wk. 60. We uphold trial
court conclusions if they are supported by findings that are, in turn,
supported by the evidence. Abbiati v. Buttura & Sons, Inc., 161 Vt. 314,
318, 639 A.2d 988, 990 (1994).

¶ 14. A boundary is established by acquiescence when there is
mutual recognition of a given line by adjoining landowners, and continuous
possession by one to the line for a fifteen-year period, which is the same
as the period required to establish ownership by adverse possession.
D'Orazio v. Pashby, 102 Vt. 480, 487, 150 A. 70, 73 (1930); see 12 V.S.A. §
501 (requiring that action for recovery of lands be commenced within
fifteen years after cause of action accrues). Continued satisfaction and
compliance with a boundary marked on the ground is persuasive evidence that
it is the correct boundary. N.A.S. Holdings, Inc. v. Pafundi, 169 Vt. 437,
446, 736 A.2d 780, 788 (1999). Satisfaction and compliance are often shown
by objective circumstantial evidence rather than subjective testimony.
See, e.g., RHN Corp. v. Veibell, 2004 UT 60, ¶ 25, 96 P.3d 935 (citing
cases in which acquiescence was proved by "[o]ccupation up to, but never
over, the line," including construction, farming, irrigation, and raising
livestock or by silence or failure to object to a line). A boundary
established by acquiescence between two landowners is conclusive upon their
successors in title, O'Neil v. Buchanan, 136 Vt. 331, 332-33 A.2d 431, 433
(1978), and permission granted after the statutory period has run does not
defeat an acquiescence claim, Moran v. Byrne, 149 Vt. 353, 355, 543 A.2d 262, 263 (1988).

¶ 15. The trial court's finding support its conclusion that the
Lysobeys' predecessors in interest acquiesced in the location of the
boundary 200 rods west of the Head of the First Division. As detailed in
¶¶ 5-6 above, the Fletcher survey of 1824 is the only written
instrument that describes the disputed boundary at the 180-rod location.
The trial court found, that both the Lysobeys' and Okemo's predecessors in
interest recognized, since 1836, that the boundary in question was a
straight north-south line about 200 rods west of the Head of the First
Division.

¶ 16. In addition, the 200-rod location was blazed on the ground.
The Lysobeys took title to their land in 1986, and the trial court found
that there has been a blazed line of trees marking the boundary at the
200-rod location since, at the latest, 1970. The Lysobeys took no formal
action to settle the location of the disputed boundary until 1997, by which
time the blazed trees had been present for nearly thirty years. While
appellants offered conflicting testimony, the trial court credited Okemo
forester Arthur Young's testimony that, in 2000, he observed a line of
thirty-year-old blazes on trees following the 200-rod boundary. Further,
the trial court found that Young's description of the blazed trees was
consistent with Okemo surveyor John Bruno's theory that the line was blazed
in conjunction with the Plumley survey in 1969. The court also noted that
Young's description was consistent with the Nowlan survey in 1981. We will
not disturb the trial court's decision to credit Young's testimony about
the blaze line, notwithstanding conflicting testimony from the Lysobeys'
expert. Mullin, 162 Vt. at 261, 647 A.2d at 720. Moreover, the surveys
and Young's testimony are also consistent with Okemo's deed from Okemo
Summit Estates, and with the long line of conveyances and surveys depicting
the eastern boundary of the Lysobeys' land as a straight line running
north-south 200 rods west of the Head of the First Division.

¶ 17. Based on the above findings, the trial court concluded that
there had been mutual recognition and knowledge of the line by the
adjoining landowners "for a very long time," certainly in excess of fifteen
years. The trial court noted that the lack of ancient monuments on the
ground is not fatal to Okemo's claim because the blaze line, located as it
is in a remote area without any other boundary markings, was the equivalent
of the claimant "unfurling its flag." See N.A.S. Holdings, Inc., 169 Vt.
at 444, 736 A.2d at 787 (upholding trial court's ruling that claimants had
established title because they "planted their flag on the land and left it
unfurled . . . [and] never retreat[ed] in their claim"); see also Greenmont
Lumber Corp. v. Berger, 154 Vt. 121, 124, 574 A.2d 153, 155 (1990)
(affirming trial court's finding that old stone sheep fence established
possession against abutters, considering the remoteness of the property).
The blaze line, coupled with the above-noted conveyances and surveys,
establishes that, for more than the statutory period, the eastern boundary
of the Lysobeys' land has been a straight north-south line approximately
200 rods west of the Head of the First Division. Thus, the trial court
correctly concluded that Okemo proved its claim of acquiescence.

Affirmed.

BY THE COURT:

_______________________________________
John A. Dooley, Associate Justice

_______________________________________
Paul L. Reiber, Associate Justice

_______________________________________
Matthew I. Katz, Superior Judge
Specially Assigned

_______________________________________
Karen R. Carroll, Superior Judge
Specially Assigned

_______________________________________
Ernest W. Gibson III, Associate Justice
(Ret.) Specially Assigned

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Footnotes

FN1. The First Division survey, performed in 1788, surveyed land to the
east of what is now the eastern boundary of Okemo's parcel. The "Head" of
the First Division (the western boundary of that survey) has since been
used as a monument by which other boundaries are defined.

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