At the Dark End of the Street

By Daniel Richardson

Schonbek, Trustee of the Isaiah 61 Foundation v. Chase, 2010 VT 91

  

Plaintiff owns a building on Cherry Street in Burlington.  As part of the City’s fire code requirement, Plaintiff was required to find a second egress away from the building in case of fire or other building-evacuating-disasters.  The egress had to be at least fifty-inches wide.  The problem was the two alleys leading out the backdoor of Plaintiff’s restaurant either end at a fence or narrow to a point of 29 inches.  The good news, at least Plaintiff thought, was that both areas are owned and controlled by the same owner.  Prior to litigation, Plaintiff approached Defendant about opening up their fences to him to help him meet code.  Defendant agreed for the low, low price of $20,000 and a revocable easement.  Plaintiff balked.  Instead, Plaintiff installed an internal second egress and filed a lawsuit against Defendant for violating a prescriptive easement right by refusing to take down its alley blocking fence. 

At a bench trial, the parties presented their evidence, but following the close of evidence, the trial court judge decided that he wanted more evidence and reopened the hearing to take evidence on the historical use of the alleys.  This resulted in findings and conclusion that granted Plaintiff a 12-foot wide prescriptive easement and damages. 

Defendant appealed on two procedural issues and made a substantive challenge to the trial court’s findings and conclusions concerning the historic easement.  The SCOV sets aside the procedural questions because it agrees with the Defendants on the merits and thus reverses the trial court.

The specific question here is one of use.  The trial court found five types of uses of the back alley by Plaintiff’s predecessor in title: (1) delivery of fuel oil; (2) occasional use for egress/ingress by tenants; (3) trash removal; (4) occasional transport of Knights of Columbus regalia to and from the club; and (5) random ingress/egress traffic from bingo night.  Based on these general and unconnected uses, the trial court found that there was a general right of ingress/egress across Defendants’ land.  The SCOV disagrees.  It emphasizes the individual and sporadic nature of these uses.  They are what they are and nothing more. 

Of particular focus for the SCOV are the fuel oil deliveries.  By 1990, Plaintiff’s predecessor in title had converted the building to natural gas and had sealed the oil tank in cement.  By discontinuing this use, the owner gave up the prescriptive easement, and the trial court’s consideration of that prescriptive easement/use twenty years after it was given up was improper.  Ironically, its removal gave rise to an additional (sixth) use, namely the right to drive a cement truck down the alley to seal up the oil tank when its use was discontinued.  Nevertheless, the SCOV finds that these multiple uses must be viewed through the Sgt. Schultz lens as random, unconnected uses that do not coalesce into a single, general easement but remain disparate sticks of property that do not fit together in any way.  Case is dismissed.   

Given this property’s egress limitations, patrons seeking to assert their first amendment rights are advised to yell “Fire!” only in the back of the restaurant to get everyone going out the front.