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| Road or not a road? That is the question. |
By Elizabeth Kruska
We here at the SCOVLawBlog have a huge backlog of cases to summarize. Since early 2018 this case has lived in the backlog, and we thought it was time to give it some attention. And the conclusion we have come to is that litigation can be a mess. I mean, we already knew that, but this case is a great example of the messiness that can happen. And it starts in 1801, so we already know this is bound for problems.
Without getting too bogged down in the facts, Plaintiff has an interest in a piece of property that he received via quitclaim deed from his wife. Plaintiff and wife had acquired it several years earlier from someone else. Plaintiff built a house on this land in 2000. This particular piece of land is known as “Glebe Land,” which is “land possessed as part of the endowment or revenue of a church or ecclesiastical benefice” and had so been since the early 19th century. The Town of Vernon leased the land to the lessee for farming purposes.
With all this in mind, the sense I have is that there’s a chunk of land that, historically, had been held with a covenant allowing it to be farmed. Probably 200 years ago, towns set aside chunks of land for the church to farm, and this was such a chunk of land.
The problem here is that the land may or may not be accessible. There’s a road on the southern boundary of the property – Stebbins Road – but it isn’t really a road. Or maybe it is. In any case, Plaintiff’s title includes the ability to travel over Stebbins Road … “if any there may be.”
Plaintiff wanted Stebbins Road to become a road again so that he could get utility access. That was denied, because apparently Stebbins Road – although it had been used as a road for a hundred years or so a hundred years before that – wasn’t a road, and the decision to stop using the road happened in 1904.
The abutting land is owned by The Merritts, and it would appear that travel over Stebbins Road would have an impact on the Merritts’ ability to use their land. Eventually they sought declaratory relief from the court judging that Plaintiff had no legal right of access over Stebbins Road or through their property. Their argument was that the road was never properly laid out as a road; proof of that was that there was no record of the Town of Vernon establishing the road based on a survey from 1801. Plaintiff and the Merritts fought this out in court, and for reasons that are unexplained, nobody brought the town into the case. Pay attention to this, as it is important.
The court ruled that Stebbins Road was never laid out as a road, and as a result there was no right of access over that road that would have continued after the 1904 discontinuance of the road use. The court also found that the property was accessible because there was access from another boundary.
Plaintiff appealed on several points, and SCOV affirmed the lower court’s decision on two points. First, there wasn’t sufficient evidence to show that the Town actually had officially laid out Stebbins Road. SCOV also reasoned that Plaintiff didn’t have an easement by necessity.
So. Striking out there, Plaintiff then sued the Town of Vernon and alleged that the Town breached an implied covenant of quiet enjoyment because a lease from 1838 (possibly the original Glebe Land lease, although I’m not clear) included a right of access to the property. In other words, when the town set aside this chunk of land it was understood that the land would be used. And in order to use the land, the lessee has to be able to get to it. In 1838 it would have been no big thing because Stebbins Road was an operational road; it wasn’t for another 66 years the town would stop using the road.
The town argued Plaintiff couldn’t enforce a right of access from the 1838 lease, and that Plaintiff waived the covenant implying a right of access by accepting an assignment of rights over a non-existent road, and that the land was accessible in 1838 and continued to be so for 175 years. Also, the road was fine, but nobody can prove that anymore because there was a fire in the 18th century that destroyed some records. Wait. Hold on. I thought the survey was from 1801; a fire from the 18th century wouldn’t make sense. Unless they started the road survey before that? Anyway, everyone seems to agree there was a fire and some documents were burned.
The town also tried to argue that Plaintiff didn’t get to try to resurrect this argument like the phoenix from the ashes; he tried it once with the Merritts and the court already ruled. The superior court granted the Town’s motion for summary judgment on the points raised above. The Superior Court also noted that as a matter of law, the Town didn’t breach the covenant because the court found in the case with the Merritts that there was access to the property, and that Plaintiff didn’t get to relitigate that.
Uh oh. Every lawyer who remembers their civil procedure class (which many of us don’t because civil procedure is one of the first things we learn in law school and to be honest, the 1L year is a fog) is res judicata and collateral estoppel. Basically, once there’s a judgment between parties on a particular issue, and the parties have had a full and fair opportunity to litigate the issues, the parties don’t get to litigate again.
Here’s the problem. Remember above when I noted that nobody joined the town as a party? Yeah, they probably should have done that. Because although we prefer efficiency and not litigating the same matter over and over, because the Town wasn’t one of the parties in the earlier action, the court doesn’t necessarily get to… import a finding where the case doesn’t involve the same parties. Although Vermont (and many other jurisdictions) have abandoned the Doctrine of Mutuality, which prevented using a case between one set of parties to estop other parties from litigating the same thing, it isn’t always a given that it’s permissible. Different parties have different interests, and should be permitted to fully litigate the issues.
So. Striking out there, Plaintiff then sued the Town of Vernon and alleged that the Town breached an implied covenant of quiet enjoyment because a lease from 1838 (possibly the original Glebe Land lease, although I’m not clear) included a right of access to the property. In other words, when the town set aside this chunk of land it was understood that the land would be used. And in order to use the land, the lessee has to be able to get to it. In 1838 it would have been no big thing because Stebbins Road was an operational road; it wasn’t for another 66 years the town would stop using the road.
The town argued Plaintiff couldn’t enforce a right of access from the 1838 lease, and that Plaintiff waived the covenant implying a right of access by accepting an assignment of rights over a non-existent road, and that the land was accessible in 1838 and continued to be so for 175 years. Also, the road was fine, but nobody can prove that anymore because there was a fire in the 18th century that destroyed some records. Wait. Hold on. I thought the survey was from 1801; a fire from the 18th century wouldn’t make sense. Unless they started the road survey before that? Anyway, everyone seems to agree there was a fire and some documents were burned.
The town also tried to argue that Plaintiff didn’t get to try to resurrect this argument like the phoenix from the ashes; he tried it once with the Merritts and the court already ruled. The superior court granted the Town’s motion for summary judgment on the points raised above. The Superior Court also noted that as a matter of law, the Town didn’t breach the covenant because the court found in the case with the Merritts that there was access to the property, and that Plaintiff didn’t get to relitigate that.
Uh oh. Every lawyer who remembers their civil procedure class (which many of us don’t because civil procedure is one of the first things we learn in law school and to be honest, the 1L year is a fog) is res judicata and collateral estoppel. Basically, once there’s a judgment between parties on a particular issue, and the parties have had a full and fair opportunity to litigate the issues, the parties don’t get to litigate again.
Here’s the problem. Remember above when I noted that nobody joined the town as a party? Yeah, they probably should have done that. Because although we prefer efficiency and not litigating the same matter over and over, because the Town wasn’t one of the parties in the earlier action, the court doesn’t necessarily get to… import a finding where the case doesn’t involve the same parties. Although Vermont (and many other jurisdictions) have abandoned the Doctrine of Mutuality, which prevented using a case between one set of parties to estop other parties from litigating the same thing, it isn’t always a given that it’s permissible. Different parties have different interests, and should be permitted to fully litigate the issues.
Yep, you guessed it, Plaintiff appeals.
So, now the question is, should Plaintiff be precluded from litigating the case regarding Stebbins Road where he has alternate access to the property? SCOV says no. SCOV actually says he can litigate this. The reason is because it wasn’t dealt with on appeal before.
You know how appellate courts get a case with multiple issues, and then say, “because we determine the case based on Issue Number One we decline to reach the others?” In a situation like this one, declining to get to the others actually is important to the plaintiff. Plaintiff has the right to fully litigate the issue about access from another access point; litigation includes the right to having the matter resolved on appeal.
In the Merritts’ case, SCOV affirmed on other grounds and didn’t reach the issue of the alternative access point that wasn’t Stebbins Road. This really hasn’t been fully litigated.
Also, it’s sort of uncertain whether Plaintiff has this other access point. The Merritts originally argued Plaintiff couldn’t use Stebbins Road because it was never properly laid out so it wasn’t really a road. The town later argued that oh, yep, actually, it was properly laid out as a public road. Therefore, the Town would actually have the ability to argue that it never breached Plaintiff’s covenant of quiet enjoyment because it could use the properly-laid-out road to access the land; this is at odds with the findings in the Merritts’ case.
The Town isn’t bound to the findings from the Merritts’ case because the Town wasn’t a party. Why not? Unclear! Neither party sought to join the Town, and it’s not even clear the Town knew the suit was going on. And really, why would they? It was a property dispute between adjacent landowners, and apparently although the parties used the Town’s records, that doesn’t mean the Town would know about the suit. And that’s important, because the Town and the Merritts were making opposing arguments about the legality of the road and the impact that might have on other means of access.
Think of it this way: the Merritts don’t want it to be a road, because if it is, it infringes on their use of their property. If it isn’t a road, then that means the Town screwed up in 1904 by closing a road that had an impact on someone else’s use of the Glebe Land. The Town has interests in figuring out if it’s a road because that probably means the Town has to do Road Stuff. And if it is a road that means the town is no longer on the hook for closing the road preventing use of the land. The Town and the Merrits might be at odds with one another on this.
SCOV even goes further and says that in the event it can be proven that Stebbins Road was laid out properly – as the Town argues – now that’s going to pull the Merritts back in to the case because use of Stebbins Road has an impact on their property. And this is a weird, rare situation, but since there’s real potential for an unsettled issue due to two inconsistent judgments, it’s got to be settled in the trial court with all the relevant parties. I can imagine if the Merritts then lose part of the use of their land, they then may have legal action against the Town. What a mess.
SCOV also points out that parties ought to foresee additional litigation, and that there are times when joinder of other parties is necessary to avoid exactly this kind of situation. But here it wasn’t likely foreseeable to the court or to either the plaintiff or to the Merritts that the Town would later pop up as a separate party and say, “Hey, that road we stopped using 100ish years ago? And which you thought and the court said was not a road? Yeah, that’s a road.”
So, this gets reversed. I’m also curious about what will happen next.
So, now the question is, should Plaintiff be precluded from litigating the case regarding Stebbins Road where he has alternate access to the property? SCOV says no. SCOV actually says he can litigate this. The reason is because it wasn’t dealt with on appeal before.
You know how appellate courts get a case with multiple issues, and then say, “because we determine the case based on Issue Number One we decline to reach the others?” In a situation like this one, declining to get to the others actually is important to the plaintiff. Plaintiff has the right to fully litigate the issue about access from another access point; litigation includes the right to having the matter resolved on appeal.
In the Merritts’ case, SCOV affirmed on other grounds and didn’t reach the issue of the alternative access point that wasn’t Stebbins Road. This really hasn’t been fully litigated.
Also, it’s sort of uncertain whether Plaintiff has this other access point. The Merritts originally argued Plaintiff couldn’t use Stebbins Road because it was never properly laid out so it wasn’t really a road. The town later argued that oh, yep, actually, it was properly laid out as a public road. Therefore, the Town would actually have the ability to argue that it never breached Plaintiff’s covenant of quiet enjoyment because it could use the properly-laid-out road to access the land; this is at odds with the findings in the Merritts’ case.
The Town isn’t bound to the findings from the Merritts’ case because the Town wasn’t a party. Why not? Unclear! Neither party sought to join the Town, and it’s not even clear the Town knew the suit was going on. And really, why would they? It was a property dispute between adjacent landowners, and apparently although the parties used the Town’s records, that doesn’t mean the Town would know about the suit. And that’s important, because the Town and the Merritts were making opposing arguments about the legality of the road and the impact that might have on other means of access.
Think of it this way: the Merritts don’t want it to be a road, because if it is, it infringes on their use of their property. If it isn’t a road, then that means the Town screwed up in 1904 by closing a road that had an impact on someone else’s use of the Glebe Land. The Town has interests in figuring out if it’s a road because that probably means the Town has to do Road Stuff. And if it is a road that means the town is no longer on the hook for closing the road preventing use of the land. The Town and the Merrits might be at odds with one another on this.
SCOV even goes further and says that in the event it can be proven that Stebbins Road was laid out properly – as the Town argues – now that’s going to pull the Merritts back in to the case because use of Stebbins Road has an impact on their property. And this is a weird, rare situation, but since there’s real potential for an unsettled issue due to two inconsistent judgments, it’s got to be settled in the trial court with all the relevant parties. I can imagine if the Merritts then lose part of the use of their land, they then may have legal action against the Town. What a mess.
SCOV also points out that parties ought to foresee additional litigation, and that there are times when joinder of other parties is necessary to avoid exactly this kind of situation. But here it wasn’t likely foreseeable to the court or to either the plaintiff or to the Merritts that the Town would later pop up as a separate party and say, “Hey, that road we stopped using 100ish years ago? And which you thought and the court said was not a road? Yeah, that’s a road.”
So, this gets reversed. I’m also curious about what will happen next.
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