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Gray v. Treder

Supreme Court of Vermont

December 21, 2018

Matthew Gray and Erik Gray
v.
Martha Treder, John Muscarelle, Robert Muscarelle, Joseph Muscarelle, III, Anne Herrera, Edward F. Godfrey, Judith C. Godfrey, et al.

          On Appeal from Superior Court, Washington Unit, Civil Division Mary Miles Teachout, J.

          Paul 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.

          Kevin M. Henry of Primmer Piper Eggleston & Cramer PC, Burlington, for Defendants-Appellants Edward F. and Judith C. Godfrey

          PRESENT: Reiber, C.J., Skoglund, Robinson, Eaton and Carroll, JJ.

          ROBINSON, J.

         ¶ 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' properties.[1]

         (Image Omitted)

         ¶ 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 ...


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