David E. Roy, Mary R. Roy, Michael Hirschbuhl, Tonia Hirschbuhl, Richard Roy, Roberta Roy, Glenn Barr, et al.
Woodstock Community Trust, Inc.
On Appeal from Superior Court, Windsor Unit, Civil Division, Katherine A. Hayes, J.
Kaveh S. Shahi of Cleary Shahi & Aicher, P.C., Rutland, for Plaintiffs-Appellants/Cross-Appellees.
Robert S. DiPalma and Kristina M. Roomet of Paul Frank Collins P.C., Burlington, for Defendant-Appellee/Cross-Appellant.
PRESENT: Reiber, C.J., Dooley, Skoglund, Burgess and Robinson, JJ.
¶1. This case arises out of a proposed housing development in West Woodstock, Vermont. It is not the first case to come before us related to this development. In Roy v. Woodstock Community Trust and Housing Vermont PRD, 2012 VT 87, ___ Vt. ___, 60 A.3d 686, we affirmed the permits for the project granted by the town development review board and the district environmental commission and affirmed by the environmental division of the superior court. This appeal, brought by the owners of abutting properties to the land in question—David and Mary Roy, Michael and Tonia Hirschbuhl, Richard and Roberta Roy, Glenn and Charlotte Barr, Richard and Shirley Burroughs, and Jay Smith—presents a number of more narrow questions related to easements and other property rights. It also includes a cross-appeal by Woodstock Community Trust, Inc. (WCT) of a finding of the superior court related to those same property rights. We affirm in part and reverse in part.
¶2. The property in question consists of two abutting parcels located along Route 4 in West Woodstock. One of the parcels is a half-acre lot with a building on it, known as the Grange Hall (“parcel 1”), and the other a 7.5-acre parcel that contains no building but includes a parking lot as well as the driveway that provides access to the property from Route 4 (“parcel 2”).
¶3. WCT is a nonprofit corporation; part of its mission is to promote affordable housing within Woodstock. It purchased both of these parcels in 2005. It took title subject to three water easements that run across the property, owned by plaintiffs Shirley and Richard Burroughs, Roberta and Richard Roy, and Jay Smith. Smith also maintains that he owns spring rights on the property.
¶4. Plaintiffs brought this case in 2007, while the project was still under review for permitting approval, alleging a wide variety of property-right violations. The trial court dismissed one claim, decided others on partial summary judgment, and sent the remaining claims to trial. During the course of the jury trial, the court granted a number of Vermont Rule of Civil Procedure 50 motions for judgment as a matter of law, leaving only one question for the jury: whether the proposed project unreasonably interfered with Smith’s spring rights—rights that the court had found, after the close of evidence at trial, to exist as a matter of law.
¶5. In May 2011, the jury found for Smith, and a judgment was entered in July 2011. After the trial, both parties submitted proposed judgment orders. WCT requested an evidentiary hearing, but the hearing did not take place because plaintiffs filed a letter with the trial court requesting the prompt issuance of a final judgment order sufficient to allow Smith and the other plaintiffs to appeal. The trial court, in its words, “[i]nterpret[ed] this to mean that plaintiff was no longer pursuing injunctive relief, ... [and] issued a final judgment order stating simply that the proposed development unreasonably interfered with plaintiff’s spring rights.”
¶6. After plaintiffs filed their appeal in this Court, WCT filed a renewed motion for judgment as a matter of law together with a motion to alter or amend the judgment or for new trial and obtained a remand order from this Court authorizing review by the trial court of those motions. The trial court held an evidentiary hearing on the motions in November 2011 and considered WCT’s proposal to modify its plans and found that the project as modified no longer interfered with Smith’s spring rights. It therefore issued an amended judgment order on December 30, 2011, ordering WCT to lay a polyethylene sleeve and pipe on its property to allow Smith access to his spring rights, calling this “an appropriate equitable remedy for the interference that was found by the jury.”
¶7. On appeal, plaintiffs argue that: (1) the trial court lacked jurisdiction post-judgment to hold an evidentiary hearing about interference with Smith’s spring rights; (2) Smith was denied his right to a jury trial in that evidentiary hearing; (3) the equitable remedy that resulted from that hearing was a de facto overturning of the jury verdict; (4) Smith was entitled to injunctive relief as well as declaratory relief as a result of the jury verdict; (5) the trial court erred by allowing, on summary judgment, the unilateral relocation of the Roys’  and Burroughs’ water easements; (6) the trial court erred by denying, on summary judgment, adverse possession claims by David Roy and the Hirschbuhls; (7) the trial court erred by denying, also on summary judgment, boundary-by-acquiescence claims by the Roys and Hirschbuhls; (8) the jury should have been allowed to decide if the new use of an easement belonging to WCT on David Roy’s property exceeded the original easement as granted to its predecessor; and (9) the trial judge erred in dismissing plaintiffs’ nuisance claims. WCT, for its part, cross-appeals the trial court’s finding as a matter of law that Smith possessed a current spring right on WCT’s property.
¶8. Further facts related to the history and geography of the properties will be presented as necessary in the sections below. Our treatment of the various issues is not chronological with respect to when the appealed decisions were made, but rather commences with the cross-appeal and then tracks the order in which plaintiffs present their claims of error in their brief.
¶9. We begin with WCT’s cross-appeal regarding Smith’s purported spring rights. After plaintiffs’ case, WCT made a motion for judgment as a matter of law that Smith had no spring rights on WCT’s property. See V.R.C.P. 50(a). The court denied the motion, and counsel for WCT renewed it after the close of evidence. At that time, counsel for plaintiffs made his own Rule 50 motion for judgment as a matter of law that Smith did have spring rights. The trial court ruled for plaintiffs, granting their Rule 50 motion on this issue and denying WCT’s Rule 50 motion. After entry of judgment, WCT properly filed a renewed motion for judgment as a matter of law, preserving its right to appeal the denial of its motion. See V.R.C.P. 50(b). It filed a cross-appeal appealing the denial of its Rule 50 motion.
¶10. Rule 50 explains:
If during a trial by jury a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue, the court may determine the issue against that party and may grant a motion for judgment as a matter of law against that party with respect to a claim or defense that cannot under the controlling law be maintained or defeated without a favorable finding on that issue.
V.R.C.P. 50(a)(1). We review judgments as a matter of law under the same standard as the trial court: evidence is viewed in the light most favorable to the nonmoving party, excluding the effects of any modifying evidence. Gero v. J.W.J. Realty, 171 Vt. 57, 59, 757 A.2d 475, 476 (2000). When the appeal is of a denial of a motion for judgment as a matter of law, the trial court’s ruling will be upheld if any evidence fairly or reasonably supports a lawful theory of the nonmoving party. Northshire Commc’ns, Inc. v. AIU Ins. Co., 174 Vt. 295, 298, 811 A.2d 216, 219-20 (2002). Under these standards, we reverse the superior court decision. Not only do we find that the court erred in granting plaintiffs’ motion, we find that it erred in denying WCT’s motion because there is no legally sufficient evidentiary basis to find that Smith has spring rights on WCT’s property.
¶11. The trial court made its determination that Smith has spring rights based on his testimony at trial, as well as documentary evidence of deeds demonstrating the chain of title to the property. There is no dispute over the following evidence. Smith and his then-wife purchased their property in 2000. There was no mention of spring rights in the deed that conveyed the property to them. The property is now owned only by Smith because the couple divorced and his ex-wife executed a quitclaim deed giving him all rights to the property.
¶12. The purported spring rights came from a 1915 warranty deed of Charles W. Smith to F. Guy Smith. Plaintiff is not related to either of these individuals. F. Guy Smith was at the time—along with his wife Ida Smith—the owner of the property now owned by plaintiff Smith, pursuant to a deed of 1915 from Mary Vaughan to the two of them. The language of the deed is as follows:
I... do freely give, grant, sell, convey and confirm unto the said F. Guy Smith and his heirs and assigns forever, a certain piece of land and Spring in Woodstock in the County of Windsor and State of Vermont, described as follows, viz: A Spring and the water thereof and therein, located at the foot of the hill on the Grantor’s Meadow in West Woodstock eight (8) feet westerly of the division fence between land of the Grantor and land of Marble and Southerly of and opposite to a point in said Marble’s part of said fence twenty one (21) feet Northerly of the point of the division of said fence, together with the sufficient land around said Spring as may be necessary to use in preserving, maintaining and repairing the well or reservoir, now built around said Spring, and the right to maintain, repair, and relay when necessary the aqueduct or pipe now laid through the land of the Grantor from said Spring to premises of the said F. Guy Smith, doing no unnecessary damage and paying for such unavoidable damage as may be occasioned in repairing and maintaining said well or reservoir and water pipe therefrom—Also the right in case said Spring should hereafter fail to supply as much water as it now does, to take, dig out, and fit up with a proper well or reservoir about the same, and connect with the first above described Spring and aqueduct and other Spring in the vicinity of said first mentioned Spring, with the same right to improve, maintain and use the same in all respect[s] as granted with the Spring first above mentioned.
¶13. Since the time of that deed, the property that was then owned by F. Guy Smith has changed hands a number of times. In 1919, the decree of distribution for F. Guy Smith’s estate deeded four parcels, presumably including the one now owned by Jay Smith, to his wife Ida Smith, together with “other property which is now a part of said estate if any there is.” There are no references to book and page of the deeds and none to the land in question or to the spring rights.
¶14. The next transfer was in 1938. In that year, the decree of distribution for Ida Smith’s estate conveyed the property now owned by Jay Smith to Allen Barrett and Mary Anne Shaw, describing the property as “all and the same premises conveyed to F. Guy and Ida V. Smith by Mary E. Vaughan, ” and including the correct book and page reference. The decree does not refer to the spring rights, either by specific reference to book and page of the spring rights deed, or generally. There is also no language such as “with all the privileges and appurtenances thereto.”
¶15. In 1955, Allen Barrett and Mary Anne Shaw Galloway, together with their spouses, conveyed the property to Annie L. Kenefick, making reference to the warranty deed conveying the spring rights. In 1973, Annie L. Kenefick and her spouse conveyed the property to George J. Schuetz and Nancy L. Schuetz, also making reference to the spring rights. In 1994, George J. Schuetz conveyed the property to Nancy L. Bernet (formerly Schuetz) by quitclaim pursuant to a divorce, referencing the previous conveyance by Annie L. Kenefick. In 2000, Nancy Bourdon (formerly Schuetz and Bernet) conveyed the land to Gretchjen T. Smith and Jay W. Smith, referencing the previous two conveyances. Finally, in 2001, Gretchjen T. Smith conveyed the property to Jay W. Smith by quitclaim, referencing the previous conveyance.
¶16. Smith’s current position is that he is the owner of the spring rights. He believes that he has the right to tap into the wet areas in the vicinity of the original spring described in the 1915 deed, and to use the land necessary to have that spring tapped, although he professes no current plan to do so. He testified at trial that he had been over onto the property soon after he purchased his land to try to find the spring, but that he had not found a spring, any water coming out of the ground, a reservoir, aqueduct or pipes—merely a “wet spot.”  Smith conceded, however, that he did not know whether the wet spot was caused by water coming up out of the ground or water running off the hill at the back of the property.
¶17. In order for plaintiff Smith to own the spring rights, each conveyance in the chain of title, after the spring rights deed, must include them. Conversely, to find as a matter of law that plaintiff Smith does not own the spring rights, we need find only one conveyance where there is no “legally sufficient evidentiary basis for a reasonable jury” to find that rights were successfully transferred. V.R.C.P. 50(a)(1). If we find such a conveyance, there is no need to consider any of the other conveyances, as the chain was broken and the spring rights cannot have been passed down to plaintiff Smith. We therefore focus, as WCT urges us to do, on the “weakest link” in this chain of conveyances: the 1938 decree of distribution of the estate of Ida Vaughan Smith.
¶18. The trial court found generally that each conveyance passed on the spring rights, but did not focus on the 1938 decree of distribution or explain its reasoning with respect to each conveyance. In its oral decision, the trial court did not explain its conclusion beyond stating, “I do think, as a matter of law, that he has established that the—the appurtenant easement in question attaches to his property and he has a spring right and I’m prepared to instruct the jury to that effect....” Earlier, however, the court alluded to its reasoning, citing a case where this Court found that a warranty deed that referenced “appurtenances” in the deed included spring rights. Sargent v. Gagne, 121 Vt. 1, 4, 147 A.2d 892, 895 (1958). The court did not, however, specify to which of the conveyances it was applying this precedent, and the decree of distribution of the estate of Ida Vaughan Smith does not include any such reference to “appurtenances.”
¶19. “Land does not pass as a mere appurtenance to other land; and, consequently, no portion of the highway, or stream, will be conveyed, unless the instrument of conveyance can, by reasonable construction, be made to include it.” Cole v. Haynes, 22 Vt. 588, 590 (1849). We must therefore evaluate whether the decree of distribution can, “by reasonable construction, be made to include” the spring rights.
¶20. It cannot. Plaintiffs represent that the decree of distribution of the estate of Ida Vaughan Smith “transferred all the interests of the estate, ” but that language is nowhere to be found in the decree. Rather, the reference is only to the location of the property, “being all and the same premises” conveyed to the Smiths by the original deed, with no reference to the later warranty deed granting spring rights and no addition of “privileges and appurtenances.” The residue of Ida Vaughan’s Smith estate was described as “amounting to $15, 411.08 in cash or its equivalent, ” and was split between the two recipients of the land and another cousin, Chauncey Shaw.
¶21. Plaintiffs cite two cases in support of the trial judge’s decision that the spring rights were passed on as an “appurtenance” to the property. The first, Swazey v. Brooks, 34 Vt. 451, 453 (1861), asks: “Was such a [water] right conveyed by the defendant’s deed to Joseph Swazey? This question must turn upon the meaning and operation of the word appurtenances as used in the habendum of the deed.” The second, Barrett v. Kunz, 158 Vt. 15, 604 A.2d 1278 (1992), similarly involves two deeds that included the language “all privileges and appurtenances thereof, ” i ...