Appeal from Superior Court, Washington Unit, Civil Division
Mary Miles Teachout, J.
S. Gillies of Tarrant, Gillies & Richardson, LLP,
Montpelier, for Plaintiffs-Appellees.
Christina A. Jensen of Lisman Leckerling, P.C., Burlington,
for Defendants-Appellants Martha Treder, John Muscarelle,
Robert Muscarelle, Joseph Muscarelle, III, and Anne Herrera.
M. Henry of Primmer Piper Eggleston & Cramer PC,
Burlington, for Defendants-Appellants Edward F. and Judith C.
PRESENT: Reiber, C.J., Skoglund, Robinson, Eaton and Carroll,
1. This case centers around plaintiffs' landlocked
ninety-acre parcel on Roxbury Mountain. Defendants appeal the
trial court's decision following a contested hearing that
the plaintiffs' parcel includes an appurtenant easement
by necessity that crosses some of defendants' properties.
They further contend that the trial court erred in holding
that Vermont's Marketable Record Title Act has not
extinguished that easement. We do not decide whether an
easement by necessity arose in the first place because we
conclude that even if it had, the Act would have extinguished
it. Accordingly, we reverse.
2. The trial court found the following. The lot at issue,
identified by the parties as "the Eaton Lot,"
currently has neither frontage on a public road nor deeded
access to one. Before 1948, it was part of a larger parcel of
land that stretched west to a public highway called Senor
Road. In 1948, the large parcel's owner, Henry Brooks,
sold the western part of it-the part that fronted Senor
Road-to Lester and Arlene Senor, retaining the Eaton Lot in
his ownership. The parties describe this western part as
"the Front Lot." The Brooks-Senor deed did not
reserve an express appurtenant easement for access to the
Eaton Lot via the Front Lot.
3. The Senors began to sell pieces of the Front Lot in the
mid-1970s. Some of defendants-the Muscarelles, Godfreys,
Whittles, and Ambrianos-now own the parcels that comprised
the Front Lot. The Ambrianos access their property directly
from Senor Road; the Whittles, Godfreys, and Muscarelles
access their properties from a private road called Old Farm
Lane. Old Farm Lane was created pursuant to a deeded easement
from the Senors, and it runs between the Whittle and Ambriano
parcels for 800 feet before entering the Godfreys'
property and ending where the Godfreys' driveway begins.
It does not reach the Eaton lot. The schematic below reflects
the general layout of the parties'
4. There are no visible logging or other roads or pathways
leading from the Eaton Lot continuously across the Front Lot
to Senor Road at the present time. Plaintiffs have recently
located three physical features at the back of the Front Lot
that suggest remnants of portions of a logging road: an open
line through woods where there are no tall trees down the
center but there are tall trees on either side, suggestive of
a cleared roadway; a length of a ten-foot-wide depressed area
the width of an old roadway with what have been described as
wheel tracks; and a stone wall that crosses a portion of the
Front Lot with an opening in line with the other two features
that is consistent with a roadway passing through it. The
Muscarelles purchased their lot in 1974. At that time, the
above features were not visible enough to be noticed by then
nine-year-old John Muscarelle.
5. In 2009, plaintiffs bought the Eaton Lot. Along with other
family members, they already owned a 130-acre wooded lot,
called the Mountain Lot, adjacent to and north of the Eaton
Lot. As a result of a separate lawsuit in the early 2000s,
they did not have the legal access to the Mountain Lot that
they once believed they had, rendering the Mountain Lot
potentially landlocked. After that, plaintiffs began looking
for other ways to access the Mountain Lot. They bought the
adjacent Eaton Lot believing it had either a deeded easement
or a way of necessity over the Front Lot. Prior rulings in
this case have made clear that there is in fact no express
deeded easement over the Front Lot for access to the Eaton
Lot. Plaintiffs have accessed the Eaton Lot by crossing the
lot of their southern neighbors, the Kathans, with the
Kathans' permission, but that permission is temporary
only and provides no legal right of access for the future.
6. Plaintiffs filed suit in February 2011, alleging, among
other things, that an easement by necessity arose when the
Eaton Lot was separated from the Front Lot in 1948.
Plaintiffs requested a declaratory judgment establishing
their right to reach the Eaton Lot via Old Farm Lane and a
right-of-way over the Muscarelles's land.
7. After a three-day bench trial, the court issued a decision
holding that an easement by necessity arose when the Eaton
Lot was severed from the Front Lot in 1948, and the
Marketable Record Title Act did not extinguish the easement
because, since it was created as a matter of law due to the
effect of the 1948 recorded Brooks-Senor deed, it fell into
an exception in the Act that exempts from extinguishment
easements "granted, excepted, or reserved by a recorded
instrument." The court alternately held that the Act did
not extinguish the easement ...