James A. Brault and Elise D. Brault
Jeanne E. Welch
This Opinion is subject to motion for reargument or formal revision before publication. See V.R.A.P. 40
On Appeal from Superior Court, Chittenden Unit, Civil Division. Geoffrey W. Crawford, J.
L. Randolph Amis of L. Randolph Amis, P.C., Burlington, for Plaintiffs-Appellants.
Liam L. Murphy and Damien J. Leonard of Murphy Sullivan Kronk, Burlington, for Defendant-Appellee.
Present: Reiber, C.J., Skoglund and Robinson, JJ., and Tomasi and Morris (Ret.), Supr. JJ., Specially Assigned
[¶1] Plaintiffs James and Elise Brault appeal from the trial court's order granting judgment to defendant Jeanne Welch in this dispute over a right-of-way. The Braults argue that the court should have found an ambiguity in the description of the right-of-way, and that it should have granted their motion to alter or amend. We affirm.
[¶2] The court made the following findings after a site visit and a bench trial. The parties own homes on Broadlake Road in Colchester, Vermont. Richard and Diane Griffiths owned both properties prior to 1978. In 1978, the Griffiths conveyed to their son and daughter-in-law the property now owned by the Braults. The deed to their children included a right-of-way to Lake Champlain, described as follows: " Included in this conveyance is a right of way five feet wide leading to the lake along the existing block wall and southerly thereof." The Braults purchased the property in 1996 from the bank after the property went into foreclosure. Their deed included the right-of-way, but the description did not include the phrase " southerly thereof."
[¶3] In 1981, Welch and her former husband purchased their lot from the senior Griffiths. The deed to the Welches did not refer to the right-of-way. Welch became aware of the deeded right-of-way some time after purchasing the property. In the thirty-one years that she had lived on the property, neither the younger Griffiths nor the Braults ever entered her property to reach the lake along the southerly boundary. Upon occasion, however, Welch did allow them to access the lake across other portions of her property. The court explained that, due to the existence of a seawall consisting of large, irregular blocks of stone, normal access to the water by walking would require a set of stairs at both the east and west sides of the seawall and some type of short walkway across its top.
[¶4] The court found that Welch's property consists of a small lot on Lake Champlain with a one-story house. The lot is bordered by Broadlake Road on the east and Lake Champlain on the west. To the south is a cement block wall that separated the property from a neighboring lot owned by the Fitzgeralds. The cement block wall has been in place for many years and is the same wall referenced in the 1978 deed. Because neither party had commissioned a survey, it was unknown whether this wall marked the exact southern boundary of the Welch lot. Welch had gardened and planted shrubs and low trees on her side of the wall. The court found that if the five-foot right-of-way described in the Braults' deed was located on the north side of the block wall (Welch's side), it would be a very significant change to the dimensions of her lot and to its privacy.
[¶5] In 2010, the Braults listed their home for sale. The listing included reference to lake access. A discussion ensued between Welch and the Braults concerning whether there existed a right-of-way and where it might be located. In 2012, the Braults filed a declaratory judgment action, asking the court to find that they have " the right to access to the lake as described [in their deed] for purposes of pedestrian travel to and from the lake, the necessary improvements, maintenance and construction of seasonal structures on or over [Welch's] property over the top of the bank to the waters of Lake Champlain for actual access to the lake as may be permitted by any regulatory entity with jurisdiction over the matter."
[¶6] As previously stated, the deed in question purported to convey " a right of way five feet wide leading to the lake along the existing block wall and southerly thereof." The court found this language unambiguous. Its plain meaning was that the right-of-way was located on the south side of the block wall. The court explained that the words " southerly thereof" modified the term right-of-way, and it found this interpretation strongly reinforced by the word " thereof," which meant " of that" or " concerning that." In arguing that the right-of-way had to be located on the northern side of the block wall, the Braults asserted that the words " southerly thereof" modified the words " the existing block wall," that is, the block wall was " southerly" of the right of way. The court found this to be an unreasonable interpretation of the deed language, and one that was inconsistent with how the English language was spoken and read. Read as a whole, in a normal manner, the court found that the phrase " southerly thereof" gave up its meaning without much of a struggle.
[¶7] The Braults maintained that language in the original deed from the Griffiths to their son and daughter-in-law -- " southerly thereof" -- must mean that the right-of-way was actually northerly of the block wall, primarily because a location northerly of the wall avoided any ...