laquerre v. woodbury ( 2024 )

STATE OF VERMONT
SUPERIOR COURT id ree > 3 CIVIL DIVISION
Washington Unit Were os ANS Docket No. 347-6-17 Wnev
ARMAND LAQUERRE
Plaintiff
Vv.
TOWN OF WOODBURY and
SCOTT R. MEARS
Defendants
DECISION
_ This case concerns property on a peninsula that juts into Woodbury Lake. The dispute is
between Plaintiff Armand Laquerre, who owns property on the peninsula, and Defendant Scott
Mears, who owns property that abuts the Laquerre property and is located on the same private
road, Haskett Road, that provides access for ingress and egress for both properties (and others)
from the peninsula to the nearest public highway. The Town of Woodbury has been dismissed
from the case. Intervenors Pamela and Bruce Ankuda, who own property abutting both Laquerre
and Mears, have appeared in the case but have not raised any claims or defenses.
Laquerre seeks compensation from Mears for trespass. Mears seeks: a declaration of his
common boundary with Laquerre, a declaration of easement rights held by Mears on Laquerre
land, and compensation for tortious interference with contractual relations.
A final hearing was held on November 30, 2017 and January 23, 2018. The court visited
the site on November 30, 2017 with the parties and their attorneys prior to taking testimony.
Laquerre is represented by Attorney Brooke L. Dingledine, Mears is represented by Attorney
Michael D. Monte, and the Ankudas are represented by Attorney David L. Grayck.
Motions
At the close of the Mears evidence in support of his counterclaim, Laquerre’s attorney
made several motions, which were or are resolved as follows on the basis of evidence that had
been presented as of that time:
Counterclaim Count I: Declaratory Judgment for Easement by Necessity
Plaintiff moved for judgment on the grounds that the Mears land was not landlocked and
had no necessity for access across Plaintiff's land because there was access by water. The
motion is denied as this argument is not based on current law. See Berge v. State, 2006 VT 116,
{ 12, 181 Vt. 1 (“We depend on roads and automobiles for transporting not only our family and
friends, but all our basic necessities to and from our homes, and it is a quaint but ultimately
pointless fiction to pretend that water—much less ice—represents a sufficient substitute.”).
Alternatively, Plaintiff moved for judgment on the grounds that any easement by
necessity only applied across lands of Ankuda and not Laquerre. If, however, the 1924 deed
creating the Mears lot failed to provide access to the lot across Laquerre land from a valid right
of way, that circumstance could have created a way of necessity. There was sufficient evidence
to this effect. The motion is denied.
Counterclaim Count IH: Declaration for Prescriptive Easements for Access
The parties agreed on the record that Plaintiff was entitled to judgment on this count.
Counterclaim Count HI: Tortious Interference with Contractual Relations
Plaintiff sought to conform the pleadings to the evidence to add the affirmative defense of
failure to mitigate damages. The court denied this motion for the reasons stated on the record.
Plaintiff moved for judgment as a matter of law on the grounds that Mears had advance
notice that Laquerre would claim trespass if, on June 19-20, he brought equipment and a
concrete truck onto Haskett Road and the Mears lot, and Mears went ahead and did so
intentionally anyway, thereby failing as a matter of law to act reasonably under the
circumstances. This motion is denied. Mears had introduced evidence that he had a good faith
basis for believing that he had both legal access to the property over Haskett Road and a right to
proceed with construction. This is sufficient evidence for the court to have to consider
competing evidence to determine what was reasonable under the circumstances. The court
cannot rule that Mears failed to act reasonably under the circumstances as a matter of law. The
mere fact that Laquerre had served a notice of trespass was not conclusive as a matter of law that
it was unreasonable for Mears to bring an excavator and concrete truck to his parcel.
Counterclaim Count IV; Declaration as to Ownership (Determination of western boundary)
_ To the extent that the counterclaim sought ownership of a disputed triangle on the basis
of adverse possession, the Mears evidence was insufficient to support a claim of ownership of
the disputed triangle by adverse possession and Plaintiff is entitled to judgment on that portion of
the claim. Otherwise, the evidence included several surveys showing the western boundary line
as claimed by Mears. This was sufficient evidence to support a claim. The evidence showed a
need for factfinding on disputes of material fact.’ Plaintiff's request for judgment as a matter of
law on Count IV is denied, and the issue is resolved on the basis of the findings of fact and
conclusions of law set forth below.
Based on the credible evidence, the court makes the following Findings of Fact and
Conclusions of Law.
Findings of Fact
The peninsula on which the parties’ properties are located is off Route 14 in the Town of
Woodbury. As of August 1912, the peninsular land was owned by Morse and Pierce as shown -
on a plan recorded in the land records. (Exhibit 32). The plan portrays an intent to create a
number of small shorefront lots at the water’s edge along the outer edge of the peninsula. In
1913, Morse and Pierce conveyed their land to Martin and Anna Clark, who divided the
peninsula into two separate parcels the same year by conveying most of the peninsula (the
northwest part with the most shorefront) to Smith and Kent. Both the Laquerre and Mears
properties are part of the Smith/Kent parcel. The Clarks retained the balance (southeast section),
which included all the frontage on the public road, Route 14.'! The Smith/Kent (northwest)
parcel had no frontage on a public road, but the Clarks conveyed to Smith and Kent three rights
of way across their retained parcel to provide access to various parts of the peninsula. Smith and
Kent later sold some waterfront camp lots based on the recorded August 1912 plan. Exhibit 4A,
while not accurate as to specific details as described in these findings, provides a visual
representation of the peninsula as a whole and the layout of lots and the three rights of way.
The Clark to Smith/Kent deed of 1913 established a fixed point that is critical in .
determining the location of the boundaries between the Laquerre and Mears properties. The
fixed point, which was located on the line between the parcel the Clarks sold to Smith/Kent
(northwest piece) and the retained parcel (southeast piece), was described as an iron post at a
birch tree (hereinafter IPBT). This point was approximately 33 feet away from the shoreline
and, oddly, the deed description did not take the dividing line between the conveyed and retained
parcels all the way to the shoreline but stopped at the IPBT fixed point. This is one contributor
to the subsequent problems in identifying the Laquerre/Mears line.
In 1924, Kent and the heirs of Smith created the Mears lot by conveying it out of their
remaining peninsular land. It is a smail lot of approximately 30’ x 40° or 1,307 square feet (0.03
acre). The point of beginning is away from the shore and is described as “an iron post at the foot
of an old birch tree.” (Exhibit 2C). The parties do not dispute that this point is the same as the
IPBT, even though there is no longer a birch tree there, and they do not dispute its location. It is
the northeast corner of the Mears lot and the point of beginning, about which there is no
disagreement.
The parcel is described in the deed as starting from this point and running westerly for 40
feet, then turning a right angle and running to the shoreline “through the line of a poplar tree
marked ‘X’” [now gone], then running 40 feet along the shoreline, then turning and running in a
straight line to the point of beginning.” There was no survey referenced in the deed and none
was recorded,
The deed does not specifically describe a conveyed easement for access from Route 14.
The parcel was located on or near the third of the three rights of way the Clarks conveyed to
Smith and Kent from Route 14 to peninsular land in the 1913 deed recorded at Book 19, Page
157 of the Woodbury Land Records. Although the third right of way, now Haskett Road, was
not depicted on a survey at the time it-was conveyed to Smith and Kent, its location is described
in the 1913 deed that created it as running behind the lake house toward the southern part of the
peninsula and the Mears lot is along this route. ? The location of this right of way is shown on
the1955 plan (Exhibit 4A), which shows it very close to where the Mears lot is. Although there
have apparently been minor shifts in the road location since 1955, it is in essentially the same
location today.
' It is now owned by Ankuda and includes the “lake house,” shown on the 1912 plan as the
“Woodbury Lake House,” which is on Route 14 at the southern end of the peninsula.
* The description is as follows: “leading from the County road at the north end of the Lake House
and going around back of the house crossing to the point of land at the so-called ‘Narrows’ of the
Lake.” (Exhibit 1B.) The deed also very specifically contemplates that shorefront properties
will be subdivided out of the granted premises and “cottages may be built thereon.”
The only restriction in the deed that created the Mears lot is as follows: “provided that no
building shall at any time be erected on the said granted premises nearer than fifteen feet to the
line first mentioned in the foregoing description.” In other words, there was a fifteen-foot
setback requirement from the northern boundary, which was inland from and parallel to the
shoreline.
At some point between 1924, when the Mears lot was created, and 1949, when Mr.
Laquerre began coming to Woodbury Lake as a boy, a structure was built on the Mears lot. It
was a combination garage/boathouse. It was a little over 18 feet wide. At the level of the road
was a double-bay garage, and below the garage floor, at the water level, was a boathouse. It was
used for many years by the owners of a summer house located on the other side of the lake that
had no road access. Throughout his childhood and for many years thereafter, Mr. Laquerre saw
people arrive at the boathouse by car, park, and take boats across the water to the house on the
opposite shore. In 1978, Mr. Laquerre purchased land on the peninsula and has owned land there
since, although at times he has owned different parcels. All of them have been further out on the
peninsula than the Mears lot, so that for 38 years before this dispute developed, he routinely
drove by the garage/boathouse as he accessed his properties on the Haskett Road right of way.
He lives in East Montpelier but spends approximately 180 days a year at the Woodbury Lake
property,
At some point, the house on the opposite shore acquired road access, and the
garage/boathouse was no longer used as often. Eventually, the house on the opposite shore was
sold, but the Mears lot, with the garage/boathouse on it, was not sold together with it. The Mears
lot remained a separate, free-standing parcel. The garage/boathouse structure was not well
maintained, and the garage floor became unstable.
In December of 2016, Mr. Mears saw the parcel advertised and bought it. He intended to
demolish the existing structure and rebuild a camp on the same footprint. In February of 2017,
he applied for a zoning permit, and posted the required notice on a tree on the property. No one
objected after the requisite number of days, and he obtained a permit from the Town. He tore
down the garage/boathouse, and piled up the boards and other debris near the road, some of it
spilling over onto Haskett Road.
Laquerre, who had not been on Haskett-Road during the period the notice was posted
(and consequently did not object to the zoning permit application), went to the peninsula to plow
the road one day and saw that the garage/boathouse structure was demolished and that the piles
of debris encroached into the road. He ran into a portion of it with his snow plow. He moved
pieces of tin out of the road. The paved/traveled portion of Haskett Road as it passes the Mears
lot is approximately 9 feet wide. The width of the Haskett Road right of way is undetermined,
but in any event Laquerre owned the underlying land on which it was located as well as abutting
land on Mears’s western boundary. The debris remained in place for approximately three weeks.
Laquerre opposed the activity on the Mears lot and use of Hackett Road, and tensions between
Laquerre and Mears developed quickly.
The traveled portion of Haskett Road in front of the Mears lot is not wide enough for two
cars to pass. It is routine during the summer that when two cars mect, one backs up to a point
where it can let the other pass. There were times when Mears was at his lot that he was parked at
least partially in the road in a manner than obstructed passage on the road due to the fact that
piles of demolition debris, dirt, and the excavator prevented him from parking wholly within his
lot. The court finds credible his testimony that on some occasions, when he was parked in the
road and other vehicles came and went, he moved his vehicle to let them pass. Mears claims it
was only three times, and Laquerre claims he knows of four times. There is no evidence that
Laquerre himself was ever blocked or delayed in this manner, On one occasion a UPS truck was
trying to reach the Patno property further out on the peninsula. Mears was in a boat balancing a
dock and said he couldn’t come up right then. The UPS driver and someone from the Patno
property walked toward each other to complete the delivery of the package. Laquerre claims that
Mears’s blocking of Haskett Road constituted trespass.
While Mears acknowledges short-term temporary blocking, he claims it is no different
than what happens when service or utility or UPS trucks stop temporarily on the road in
connection with servicing any of the lots served by Haskett Road. The traveled portion of the
road is simply not wide enough for a vehicle to pass another vehicle that is stopped in the road:
Laquerre has placed rebar posts on the northern edge of the traveled way of Haskett Road
opposite the Mears property, restricting the ability of vehicles to pull around off the pavement to
clear any vehicle that may be parked along or in the road on the Mears side of Haskett Road.
Mears proceeded to bring an excavator to the property to dig for a foundation and had a
concrete truck come and pour concrete footings for the replacement structure he planned to
build. Due to the excavation, for a time there was a big pile of dirt very near the road and along
the western end of the Mears lot. The excavator, which was parked extremely close to Laquerre
land, was on the property for some period of time, and at times its arm extended into the space
over the right of way or over the western boundary line as claimed by Laquerre, who objected
‘ that Mears’s activities constituted trespass on Laquerre land. There is no evidence that the arm
of the excavator being in the air above a small portion of Haskett Road interfered with anyone’s
use of the road.
The placement of the dirt and excavator raised the question as'to exactly where the Mears
western boundary, a common boundary with Laquerre, was. Both parties consulted lawyers and
began looking into available surveys and deeds in the land records. Although the Mears deed
described a right angle at the northwest corner of the conveyed parcel, subsequently filed plans
recorded in the Town land records showed an angle greater than 90 degrees, and depicted the
Mears lot as a parallelogram with slanted sides on both the east and west boundaries rather than a
rectangle with right angles as described in the deed. The difference between the rectangular and
parallelogram versions on the Mears western boundary was a triangular area that belonged to
either Laquerre or Mears, as shown on a 1989 survey and both claimed it. Laquerre erected a
fence on his version of the common boundary, thereby signifying his claim to the disputed
triangle.?
Laquerre’s attorney had Mears served with a notice against trespass in June of 2017,
Tensions continued between the parties. Laquerre was in the process of challenging the validity
3 The eastern boundary of the Mears lot, which is the common boundary with Ankuda, appears
not to be disputed between Mears and Ankuda and is based on a right angle as stated in the deed
and the 1989 survey rather than’as depicted at an angle (the parallelogram) as shown in the 1955
and 1979 plans. While there is a little difference between the 1989 plan and the current Chase
survey as to the location of the intersection of the common Ankuda/Mears boundary at the
shoreline, the discrepancy is extremely minor and was not litigated by Ankuda and Mears.
of the zoning permit and any reconstruction on the Mears lot.4 Mears was confident that he had
obtained all the necessary permits to construct a “primitive camp” on the footprint of the
garage/boathouse and that his planned structure was in compliance with both his zoning permit
and ANR (Agency of Natural Resources) requirements for construction on shorefront property.°
Mears had arranged for a concrete truck to come to the property on June 19" or 20" to
pour concrete for walls and a floor as well as an excavator for related earthwork. Laquerre
became aware of this and contacted his lawyer and was advised not to let the concrete truck pour
any concrete. In preparation for the arrival of the concrete truck, Laquerre stationed himself in
his own vehicle on Haskett Road near the Mears lot. He instructed his son to drive up to the
beginning of Haskett Road, where it comes off Route 14 and passes the Ankuda lake house, and
tell the driver of the truck that if he drove down the hill past the Ankuda house toward the Mears
property he would have to back up. This happened, and the driver, rather than risking a
confrontation, left without delivering the concrete.
Mears did not get the benefit of the concrete, but nonetheless had to pay for the concrete
and related labor in the amount of $2,217.38. He also paid $350 for an excavator to be brought
to the site and then removed without doing planned work to backfill after the foundation was
poured. This was due to the concrete not being poured. Laquerre acknowledges that his intent
was to prevent the concrete from being poured. It was part of his overall strategy to prevent
construction on the Mears lot. He intends to return to the Town to continue seeking invalidation
of the zoning permit.
Mears also claims damages of $3,000 based on his testimony that his original materials
budget was $30,000 and now he expects that the cost of materials, due to the delay, will be about
10% higher. The court does not find the testimony sufficiently credible or reliable to support this
part of the claim.
The parties continued to dispute not only whether Mears could legally build what he
planned to build, but the width and location of Haskett Road in front of the Mears lot, the scope
of legal use of it by Mears, and the location of the common boundary on the west side of the
Mears lot. There was no longer a poplar tree with an ‘*X,” so that monument in the deed
description was unusable. The question was whether the line left the Mears northwest corner at a
90-degree angle and went straight to the shore, or whether it angled toward the west as the side
of a parallelogram.
Careful subsequent deed and land record research has shown the basis of the confusion.
In 1955, a surveyor named Cook created a plan of the area (Exhibit 4A). When he did, he made
a mistake in the manner in which he laid out a tie-line, and in doing so he changed the location of
the critical IPBT. The result of this was he showed the Mears lot on his plan (although the plan
was not a survey of the Mears lot) as a parallelogram and not a rectangle. The error was
4 Laquerre believed that the simple drawing of Mears property that Mears had done and attached
to his zoning application was inaccurate and he hoped to have the permit invalidated.
> Mears had learned that a “primitive camp” was permitted on the site by ANR regulations. It is
a camp “with no interior plumbing consisting of no more than a sink with water that [is] used for
no more than three (3) consecutive weeks per year and no more than a total of sixty (60) days per
year.” This is what Mears sought approval for in his zoning application.
corrected in a 1968 survey of land-that Laquerre later bought, but unfortunately two 1979
surveys picked up and perpetuated the Cook error (Exhibits 5 and 8) and again showed the Mears
lot as a parallelogram. A 1989 survey of the Mears lot corrected the location of the boundary on.
the eastern (Ankuda) side, but on the western side, showed two lines: one based on a 90 degree
angle as called for in the deed, and one encompassing the triangle resulting from the .
parallelogram version and “as shown by Atkins,” who was the owner at the time of the erroneous
1979 surveys.
As aresult, Mears’s predecessor(s) in title from 1955 on may very well have reasonably
believed that the western boundary slanted to the west and that the lot included a triangular piece
with the shorefront piece further to the west than the deed describes. Atkins, the owner of the
Mears lot in 1989, apparently believed it, as he told the surveyor that his western boundary
included the triangle. Laquerre may also have believed it himself, as on one occasion when
Laquerre and Mears were both on the land, and Mears asked Laquerre if he agreed that the
angled line was accurate, Laquerre confirmed that he did. At that time, the surveys available to
the parties were the ones that incorporated the mistake. it was only later that Laquerre’s survey
technician researched the records and found the mistake.® The court finds the testimony of
Laquerre’s expert credible and the most convincing evidence of the boundary location, and
further finds that the accurate location of the boundaries of the Mears lot is as shown on the plan
by Chase and Chase that is Exhibit 37. The 1979 survey of Laquerre land, to the extent it depicts
a common boundary with the Mears lot, is simply wrong. The same is true of the 1955 Cook
survey of the peninsula.
As to the relationship between the northern boundary of the Mears lot and Haskett Road,
even assuming that the centerline of the current traveled roadway is the centerline of the right of
way, the width of the right of way cannot be determined, so the court cannot fix a location of the
the southerly boundary of the right of way.” There is no dispute that the portion of the right of
way north of the Mears lot, howevet wide it is, is located on Laquerre land. One suggestion is
that the right of way directly abuts the Mears northern boundary. Another is that there is a sliver
or triangle of Laquerre land between the right of way and the Mears northern boundary.
It seems likely that Kent and the heirs of Smith would have, when creating the Mears
‘parcel, created it to have frontage on the right of way in order to provide access to the conveyed
parcel.® This is particularly so for two reasons. First, there was no specific easement included in
the conveyance that would indicate Laquerre land between the road and the created lot.
Secondly, the structure that was subsequently built on it was a garage, suggesting that continuous
vehicular traffic from the Haskett Road right of way onto the Mears lot was consistent with the
conveyance that created the lot. Moreover, the fifteen foot setback requirement is suggestive of
this interpretation, as it would seem reasonable that the setback requirement was intended to be a
setback from the road, providing a margin between the road and any structure on the lot.
6 He provided a logical and credible explanation for the basis of the mistake.
? Other users of Haskett Road have provisions in their deeds related to the access right of way,
and these are not before the court. See Conclusions of Law, infra.
§ Laquerre does not dispute that when the Mears lot was created, the conveyance included some
level of right to access the parcel over some portion of the Haskett Road right of way.
Although these are all logical inferences, they do not rise to the level of proving by a
preponderance of thé evidence that the Mears lot abuts the right of way.
Laquerre seeks to limit Mears’s right of access on Haskett Road to the minimum footage
necessary to reach only the northeast corner of the Mears lot and turn directly into the lot at a
width only wide enough to accommodate a truck, and seeks to prohibit Mears from otherwise
engaging in any activity whatsoever on the Laquerre land between the Mears northern boundary
and the traveled portion of Haskett Road.
There is no indication that the access from the Haskett Road right of way to the Mears lot
was restricted to only a certain portion of the width of the northern boundary of the Mears lot, or
that there was any prohibition on any activities in any of the area between the right of way and
the northern boundary of the Mears lot. In other words, there was not just a limited curb cut for a
single car or even a double car driveway. On the contrary, the primary use of the Mears lot was
as a double garage for vehicles coming to it along Haskett Road and a place for boats to be
moved in and out of the lake. The garage is 18.4 feet wide, with two bays designed to
accommodate two vehicles. side by.side. Thus, approximately half the width of the whole lot,
and any Laquerre land between Haskett Road and the Mears northern boundary, was dedicated to
being a driveway for vehicles accessing the garage.
The land on either side of such 20 foot-wide driveway was accessible for use in loading
and unloading vehicles and transporting boats on and off the property between vehicles and the
lake.’ It is reasonable to conclude that when the garage/boathouse was built, construction
vehicles used Haskett Road to bring materials in and out and park and pile up materials alongside
the right of way while engaging in construction activities in the same manner as is shown on
Exhibits 12 and 13. Moreover, it is clear from the other buildings located on the lots on the
peninsula that use Haskett Road for access that construction vehicles, including concrete and
lumber trucks and the like, have used Haskett Road for access and most likely for parking during
temporary periods of construction.
Thus, to the extent that there is any Laquerre land between the Haskett Road right of way
and the northern boundary of the Mears lot, that land was used between some point in time prior
to 1949 up until February 2017 as a right of way between the Haskett Road right of way and the
Mears lot. The use of it by cars and people going between Haskett Road and the Mears lot was
open as it was plainly visible to anyone in the area, and it was against the claim of right of the
owner of Laquerre land, It was continuous in that while it was seasonal, that was the nature of
the primary use of lands along the shore and the use was continuous from year to year.
Conclusions of Law
Laquerre’s claims of trespass.
The facts support Laquerre’s claim that Mears, without seeking or obtaining permission
from Laquerre or any other user of the road, caused a pile of demolition debris to be placed such
” The use of the property is not restricted by historical use. The only restrictions on use are the
fifteen-foot setback in the deed and those that are a function of state and local land use
regulation.
that it encroached into the traveled portion of Haskett Road for a temporary period of time. In
considering damages, the facts show that it interfered to a minor degree with Laquerre’s
reasonable attempt to plow snow on the traveled portion of Haskett Road. Laquerre has not
proved any specific damages, but is nonetheless entitled to an award of nominal damages in
recognition of the act of trespass.
Laquerre also claims trespass for the pile of dirt and the parking of the excavator and the
storage of the pile of demolition debris on the area of Laquerre land between Haskett Road and
the Mears northern boundary. Based on the conclusion set forth below that Mears was entitled to
treat this land as curtilage and use it for temporary construction purposes, Laquerre has not
proved that these uses constitute trespass.
The facts show that because of the construction materials and activities on the Mears lot,
Mears’s truck was parked in Haskett Road on several occasions in a manner that temporarily
blocked the road. There is no evidence that on any of those occasions this conduct interfered
with Laquerre’s own use of the road or his property. Although these occasions constituted
trespasses, they were de minimus. Accordingly, only nominal damages are appropriate.
The facts show that the arm of the excavator protruded slightly into the airspace above a
limited portion of Haskett Road. There is no evidence of any impact on Laquerre or anyone else.
The facts do not support more than nominal damages for such a trespass.
Laquerre claims another basis for trespass, which is that Mears used the triangle that
represents a part of the “parallelogram” version of the Mears lot as if it was part of the Mears lot.
This use was minor and had minimal impact on Laquerre, and it occurred at a time when neither
party had good information about exactly where the boundary was, and the 1955 and 1979 plans
had reasonably led Mears’s predecessor in title to believe that the triangle part of the
parallelogram was part of the Mears lot. Thus, though the facts were previously unclear, as they
have been developed during the case and found by the court, in hindsight they show trespass by
Mears, but given the nature of the trespass and the overall circumstances, only nominal damages
are warranted.
In sum, taking all of the trespasses into account, Plaintiff is entitled to recognition of
trespasses and nominal damages in the total amount of $100.00 are awarded.
Counterclaim I: Mears’s request for a declaration of easement rights on Laquerre land.
The parties discussed and proposed different widths for the Haskett Road right of way,
and Laquerre has proposed limitations on use, but there are other owners on the peninsula who
use and have an important interest in the right of way and would be impacted by any decision.
They are indispensable parties to any judicial determination of the width of the right of way and
the exact location of its boundaries and scope of use, and they have not been joined in this case.
See Griffith v. Nielsen, 141 Vt. 423, 427 (1982) (holding that town is an indispensable party to
declaratory action on length of town highway); see also Daiello v. Town of Vernon, 2018 VT 17,
available at http://www. vermontjudiciary.org/sites/default/files/documents/op17-220.pdf, for an
example of the consequences of failing to join indispensable parties. Therefore, the court
declines to make a determination as to the width of the right of way,
Because such width is unknown, it is also unknown just exactly how much Laquerre land
there is between the southerly edge of the ri ight of way.and the northern boundary of the Mears
lot. Whatever that land area is, the court concludes that the evidence establishes that Mears
holds an easement on all such land, including its full width and depth, for the reasons stated
below.
The first question is what easement rights Mears holds on Haskett Road as it crosses
Ankuda and Laquerre land, and for how far along Haskett Road from Route 14.
Haskett Road from Route 14 across Clark (now Ankuda) land and Laquerre land
The grantors of the 1924 deed (Kent and the heirs of Smith) held a right of way across the
Clark (Ankuda) land for the benefit of not just their parcel as a whole but for the benefit of the
cottage lots that both the Clarks and Kent and Smith expected to be created by subdivision by
Kent/Smith, and at least some lots were created in conformance with the 1912 plan.!° When
Kent and the heirs of Smith created the Mears lot in the 1924 deed, they specifically provided
that the conveyance “is made subject to all restrictions and conditions mentioned in said deed,”
(emphasis added), referring to their source deed, recorded at Book 19, Page 157 of the
Woodbury Land Records. This is the deed that created the right of way across the Clark
(Ankuda) land that was expected to be used in connection with subdivision into cottage lots.
From the time of the 1912 recorded plan on through the 1913 conveyances, the recorded
plan and deed provisions make clear that the plan for the peninsula was a community of -
shorefront summer cottage lots, each of which would have access from the individual lot to one
of the three rights of way which provided access to the county public highway. A summer camp
community was being created on the peninsula with three access roads serving as the main
arteries leading out to Route 14, the public highway,
When Smith and the heirs of Kent created the Mears lot subject to all the conditions in
their source deed, one of the important conditions was the use of the third right of way, the
southernmost artery on the peninsula for access to lots to be created on the southern portion of
the peninsula. This makes sense because the lot was clearly created without restriction as to use
and with an expectation that a structure would be built on it. This is explicit as shown by the
setback restriction that refers to the location of a “building.”
The 1924 deed, while it could have been more explicit, incorporated as a “condition” the
right to use the third right of way across Clark (Ankuda) property, and thus created the right as a
matter of conveyance. Asa result, the first grantee of the Mears lot acquired the right to use the
right of way for access, and to convey it to subsequent grantees as an easement appurtenant to
the lot.!!
© See footnote 2, supra.
'! Attorneys for both parties acknowledged that such ri ght was encompassed within the clause in
the 1924 deed that conveyed “said granted premises, and all privileges and appurtenances
thereof ....” The court concludes that the right is more properly interpreted as encompassed
within the reference to “conditions” in the 1913 deed plus creation by implication as discussed in
the following paragraph plus the appurtenances clause. To say as a matter of law that a right of
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' A secondary basis for the Mears lot having an appurtenant right to use Haskett Road is by
implication given the references in the deed to a building on the property, as access would be
needed to construct a building on the property. Implied access is also supported by a lack of any
restrictions on use of the lot and the reference to conditions in the source deed, which included
the creation of the network of arteries on the peninsula, including the one close to the Mears lot.
See Restatement (Third) of Property (Servitudes) §§ 2.12 (servitudes implied from prior use),
2.13 (servitudes implied from map or boundary reference), and 2.14 (servitudes implied from
general plan). Implied easements are “found in a presumed intention of the parties, to be
gathered from the language of the instruments when read in the light of the circumstances
attending their execution, the physical condition of the premises, and the knowledge which the
parties had or with which they are chargeable.” Wheeler v. Taylor, 114 Vt. 33, 37 (1944)
(citation omitted).
Laquerre has proposed that Mears’s use of Haskett Road for access should be limited to
the first 12 feet of Haskett Road after it enters Laquerre land. In other words, his proposal is that
the right is limited to the minimum distance necessary to turn south to enter the Mears land
through a narrow corridor along the Laquerre/Ankuda property line. There is nothing in any of
the deeds in either the Laquerre or Mears chain that provides a basis for such a limitation. On
the contrary, the owner of the Mears lot simply has the right to use Haskett Road. There is no
provision specifying that such use is constrained to any particular location on Haskett Road. The
most reasonable interpretation is that the Mears owner has the right to access the Mears lot from
any portion of Haskett Road that is reasonable and convenient. There is no basis for limiting, in
2018, property rights that were not limited by the original conveyances in 1924 or 1913. There
is no evidence that Mears’s use of Haskett Road should be more limited than the use made by
other users of Haskett Road.
In sum, Mears has a right of way for use of Haskett Road from Route 14 across Ankuda
land and across Laquerre land to a line that extends northward from the Mears westerly
boundary.
The next question is what rights Mears holds over Laquerre land between the southern
boundary of Haskett Road and the northern boundary of the Mears lot. The size of this area
cannot be determined at this time because the width of the right of way of Haskett Road cannot
be determined at this time for the reasons previously stated. This area could be as much as 5 feet
deep at the eastern end and 13+/- feet deep at the western end, or, at the other extreme, if the
Haskett Road right of way is at some point determined to encompass this full area, it could not
even exist at all, or it could-encompass an area between those two possibilities. Until legal
determination of the width of Haskett Road, this decision covers the interests of the parties in all
land between the paved portion of Haskett Road north of the Mears lot and the northem
boundary of the Mears lot.
Laquerre land between Haskett Road and the Mears northern boundary.
There are two independent bases upon which the owner of the Mears lot acquired an
easement to use the full width and depth of Laquerre land between the southerly boundary of
way that has no other basis at all is conveyed solely by virtue of the “appurtenances” clause
could create havoc in a number of other cases and situations.
“41
Haskett Road and the northerly boundary of the Mears lot: one is a combination of necessity and
implication, and the other is by prescriptive use.
Necessity and implication. In 1924 when the Mears lot was created, to the extent that
there was a. gap between the northern boundary of the Mears lot and the Haskett Road right of
way, it was incumbent upon the grantors (Kent and heirs of Smith) to provide access between the
lot and the road, or else the lot would be landlocked: while the grantee could get from Route 14
to and across the Smith/Kent land on Haskett Road, he or she could not get across any
Smith/Kent sliver of land to the lot itself. Since Smith and the heirs of Kent did not include in
the deed an expressly granted easement for this purpose, the law implies an easement by
necessity. “A conveyance that would otherwise deprive the land conveyed to the grantee, or land
retained by the grantor, of rights necessary to reasonable enjoyment of the land implies the
creation of a servitude granting or reserving such rights, unless the language or circumstances of
the conveyance clearly indicate that the parties intended to deprive the property of those rights.”
Restatement (Third) of Property (Servitudes) § 2.15; accord Traders, Inc. v. Bartholomew, 142
Vt. 486, 492 (1983) (“AI that is required . . . is the division of commonly owned land resulting
in the creation of a landlocked parcel.”). This is the case here.
The next issue is whether the Mears access across the Laquerre land should be defined as
minimal in width as Laquerre urges (limited to a 12 foot wide.corridor immediately west of the
Ankuda/Laquerre boundary line) or the maximum possible (the full length and width of the land
between Haskett Road and the Mears lot northern boundary) or something in between (18 feet
wide representing the 18 feet in front of the 18-foot garage/boathouse later built on the lot).
The analysis above shows that the Mears lot owner holds a right of way on Haskett Road
across Laquerre land for the full width of the distance between the east and west boundaries of
the Mears lot. There is no basis in either the recorded documents or the circumstances for a 12-
foot wide limitation. It is apparent that the owners of the Mears lot did not consider that they
were limited to a single 12-foot wide corridor, as they constructed a double garage 18-feet wide,
and there is no evidence that Laquerre’s predecessor in title did anything to enforce a more
limited right of way. .
The court also rejects the third option (an 18-foot wide right of way) as it depends
entirely not on the circumstances at the time of creation, but on the specific use of one later
owner, While later use provides evidence about implied rights, it cannot retroactively define a
limitation that otherwise was not limited in conveyancing instruments.
It is noteworthy that no provision was made in the 1924 deed to limit the Mears lot
owner’s use of the then-Kent/Smith land between the lot and the road. It would have been
reasonable that if Kent/Smith intended to limit the owner to crossing that land at only a specific
location, in the nature of a curbcut, that would have been made explicit.
Several factors imply that no limitation of access was intended across the width and depth
of any land between the road and the lot. First, the lot is very small—only 40 feet wide, and 33-
36 feet deep. This creates a tight space in which to maneuver for full use of the lot, including
construction, repair, access for vehicles and boats, and neighbors coming to visit. In the context
of a small lot in a summer camp lakefront community, it would be odd to restrict the Mears
owner from being able to enter all but a 12-foot wide corridor between the lot and the road. As
noted above in the Findings of Fact, it is quite possible that the grantors and grantee in the 1924
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deed thought that the lot had full frontage.on the Haskett Road right of way. There was no
survey or metes and bounds description but only a simple description of a rectangle on the
shorefront with a 15-foot setback requirement, suggesting a setback from the road, although that
is not explicit. Finally, there is the fact that an owner was not constrained from building a double
bay garage approximately 20 feet wide which involved driving vehicles across the Laquerre land
on a strip at least 18-feet wide. The reasonably “inferred intent of the parties to the conveyance”
in 1924 is that there was no limitation on access. Restatement (Third) of Property (Servitudes) §
2.11.
For these reasons, the court concludes that at the time of the 1924 deed, a way of
necessity was created across any Smith/Kent land between the Haskett Road right of way and the
Mears lot, and that by implication, the scope of access included the full width and depth of such
Smith/Kent land.
Prescriptive use. Prescription refers to the acquisition of nonfee interests by proof of a
use that was “open, notorious, hostile and continuous for a period of fifteen years, and
‘ acquiescence in the use... by the person against whom the claim is asserted.” Cmty. Feed
Store, Inc. v. Ne. Culvert Corp, 151 Vt. 152, 155 (1989). The evidence shows that the owners of
the Mears lot used the full width and length of the land between the lot boundary and Haskett
Road for general purposes in conjunction with their use of their deeded land, and did so in an
open, notorious, and continuous manner for a period in excess of fifteen years. Having fulfilled
the requirements for acquiring ‘an easement by prescriptive use, the owners of the Mears lot long
ago acquired a right to use this area for all customary purposes consistent with curtilage related
to the use of the property itself. See id. at 158 (“[W]hen a prescriptive easement is claimed, the
extent of the user must be proved not with absolute precision, but only as to the general outlines
consistent with the pattern of use throughout the prescriptive period.”). Therefore, while Mears
cannot build or construct any permanent structures on it, it may be used along its full width for
ingress and egress, parking, lawn, walking, temporary storage of building or construction
materials, and other temporary uses. Similarly, Laquerre may not construct or locate any
buildings, structures, gardens, fences, or other features in that area that interfere with such uses.
Counterclaim III: Mears’s claim for tortious interference with contractual relations.
“One who intentionally and improperly interferes with the performance of a contract...
between another and a third person by inducing or otherwise causing the thitd person not to
perform the contract, is subject to liability to the other for the pecuniary loss resulting to the
other from the failure of the third person to perform the contract.” Williams v. Chittenden Tr.
Co., 145 Vt. 76, 80 (1984) (quoting Restatement (Second) of Torts § 766).
Mears has shown that on June 19-20, 2017, Laquerre specifically intended to prevent the
pouring of concrete that Mears had arranged with a contractor to pour, and Laquerre knew it, and
Laquerre acted intentionally with the help of his son to prevent Mears’s contract with his
concrete contractor from being fulfilled. There was no proper purpose to Laquerre’s
interference. See Restatement (Second) of Torts § 767 (factors in determining whether
interference is improper). His goal was to forcibly prevent Mears from doing what he was
lawfully entitled to do. Mears is entitled to recovery of the $2,217.38 he paid the concrete
contractor plus the $350.00 he paid for two moves of the excavator for a total of $2,567.38. He
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has not sufficiently proved damages as to increased costs of building materials due to delay.
Such a claim is based on speculation and without evidentiary support.
Counterclaim IV: Mears’s request for declaration of common boundary with Laquerre.
-As stated in the findings of fact, the court finds Laquerre’s evidence in the form of the
Chase and Chase survey (Exhibit 37) to be the credible evidence of the location of the common
boundaries between the parties’ parcels.
ORDER
Laquerre is entitled to a judgment declaring that the boundaries he has in common with
Mears are as set forth on the Chase and Chase survey (Exhibit 37).
Mears is entitled to a judgment declaring the scope of an easement he holds over
Laquerre lands on the terms set forth above.
Mears is entitled to a net judgment of $2,567.38 - $100.00 = $2,467.38.
Mears shall be responsible for arranging for a recordable survey setting forth such
boundaries and preparing a proposed judgment which includes a metes and bounds description
based on the survey described above and also includes the terms set forth above with respect to
an easement over Laquerre land.
Mears shall submit proposed form(s) of judgment by April 1, 2018.
. ag
Dated at Montpelier, Vermont this 72 day of February 2018.
Yv "1 BAe YL, Detnt”
Mary Miles Teachout
Superior Judge
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