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 September Term, 2012, 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.
In the above-entitled cause, the Clerk will enter:
In response to appellants’ motion for reargument and an amicus curiae brief filed by a group of Vermont real estate attorneys, this Court’s November 1, 2013 opinion is clarified and reissued, with no change in mandate, as amended opinion number 2013 VT 100A. Former §§ 9-22 are replaced by §§ 9-15.
¶ 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. The trial court concluded that the spring rights were appurtenant to the land conveyed to plaintiff through a chain of title tracing back to 1915.  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....” In earlier comments, 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).
¶ 12. In evaluating WCT’s appeal, we consider undisputed evidence of record concerning the chain of title to the land now owned by Smith, and to the spring rights asserted by Smith. There is no dispute that Smith can trace title to the land he and his then-wife purchased in 2000 back to a March 1915 deed from Mary Vaughan to F. Guy Smith and Ida Smith (no relation to plaintiff Smith). That March 1915 deed mentioned neither a spring nor spring rights. The property conveyed by that March 1915 deed passed through the Estate of Ida Smith, who survived her husband. Citing the correct book and page reference, the 1938 decree of distribution from Ida Smith’s estate conveyed to Allen Barrett and Mary Anne Shaw the property referenced in the March 1915 deed. In 1955, Barrett and Mary Anne Shaw Galloway and their spouses conveyed the property to Annie L. Kenefick, and plaintiff Smith ultimately acquired the property through a documented chain of transfers thereafter.
¶ 13. However, the spring rights did not arise from the March 1915 deed for the property now owned by plaintiff Smith. Rather, the spring rights were conveyed as part of title to the distinct plot of land on which the spring actually sits. The pertinent warranty deed, from Charles W. Smith to F. Guy Smith with a November date, provides 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.
Plaintiff has failed to demonstrate that he is successor to a chain of title to this land—the spring itself—to which the spring “rights” are appurtenant. 
¶ 14. Plaintiff appears to rely on the 1955 deed from Allen Barrett and Mary Anne Shaw Galloway, along with their spouses, conveying the property referenced in the March 1915 deed to Annie L. Kenefick. That deed, which is squarely in plaintiff’s chain of title, references the November 1915 warranty deed and purports to convey spring rights stemming from that deed. The problem is that there is no evidence that Barrett and Shaw Galloway succeeded to title of the land conveyed in the November 1915 deed or otherwise owned the spring or rights to access the spring. The only evidence of any conveyance to Barrett and Shaw Galloway is the 1938 decree of distribution from the estate of Ida Smith. That decree refers, by explicit description and correct book and page numbers, only to the land conveyed by the March 1915 deed. That order does not purport to decree to Barrett and Shaw Galloway a separate parcel including the spring, or spring rights to the waters of such a spring. “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).
¶ 15. Because we find that Smith has no spring rights in the property now owned by WCT, we need not evaluate his claims of error related to the post-judgment hearing, and the injunction issued by the trial court.
¶ 16. Next, we turn to plaintiffs’ claim that the trial court erred by granting to WCT, on summary judgment, the right to unilaterally relocate two sets of plaintiffs’ water easements. The trial court made this ruling in a written order on October 6, 2010, prior to trial, noting that no facts related to the question were in dispute. Our review is de ...