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Superior Court denies adverse possession claim

 

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05/22/2008

By Lisa Loomis

The Vermont Superior Court has denied a Warren property owners' claims that they have an unrestricted right of way across their neighbors' lands due to adverse possession.

Judge Dennis Pearson, in a May 16 decision, ruled for plaintiffs Gayle and Karl Senor against the claims of adverse possession filed by defendants Matthew, Kathryn, Erik, Arthur and Roseanne Gray.

At issue was the question of whether the Grays' use of an old logging road that runs on the edge of the Senor property met the legal definition of adverse possession. In 1992 the Grays bought a parcel of land formerly owned by a farmer who had been good friends with Lestor Senor, former owner of the Senor parcel. The old logging road provides access to the Grays' land, although it is not the only access. Last year the Grays filed suit claiming adverse possession and unlimited use of the logging road to access their property.

Both pieces of land are located in East Warren. The 91-acre Senor parcel has been used for dairy farming, sugaring, logging, butchering and other uses. The 129-acre parcel now owned by the Grays had been owned by Lestor Senor's friend George Elliot. Senor gave Elliot blanket permission to use the logging road to access his (Elliot's) land for his lifetime, according to the decision.

When the Grays purchased the land in 1992 they did not obtain a title search or survey of property and were told by the seller that they had "access" to their land via the old logging road for the traditional uses that Elliot had used the road for, recreation and logging. From 1992 until at least 2002, the Grays used the land sporadically for camping, hiking and recreation, the court found. They used both the Senor logging road and the alternative accesses without specifically requesting permission from the Senors.

In the mid 1990s, the Senors leased their sugaring operation to Doug Ricketts, who used and improved the logging road for the sugaring operation. Ricketts testified that he did not see the Grays using the road, nor did he see them improve the road. Also during that time, other local residents used the logging road to access trails for recreation and hunting and did receive permission from Senor for that use.

In 2000, 2001 and 2002, the Grays did some logging on their land and then hired a logger to do some more. During that time the Senor logging road was used by the contractor and the Grays. When more work was initiated in 2003, Karl Senor gave written permission to the Grays to use the road after observing improvements and additional traffic on the road. In that letter he asked that the Grays notify him each time they use the road and further told them he'd be closing the road "for the season" on November 2, 2003.

His letter prompted a response from Matt Gray who wrote, "Let us make this perfectly clear: This road is a common road and we have unlimited access to it. We will use it in the future as we and all of the previous owners have in the past. Your permission is not required. If you choose to place a chain, we will cross it."

In late December 2003, the Grays filed a declaration of acquisition by adverse possession in the Warren land records, arguing that they and their predecessors in interest had "used and operated the old farm road on the Senor parcel and had exercised dominion over and ownership over the road in an open, continuous, hostile, adverse and notorious manner for 15 years or more."

According to the court documents, the Grays further asserted that they had "exercised their rights over the old farm road by regulating and controlling access to and use of the road; by making decisions with respect to the use, maintenance, location and operation of the road; and by paying costs related to the maintenance of the old farm road."

"There is no record evidence to support any of those latter assertions," Judge Pearson wrote.

Pearson wrote that to establish existence of an easement across someone else's property by prescription, or adverse possession, it must be shown that there has been "open, notorious, continuous and hostile use of the right of way for 15 years."

"What is conclusive is that 1) until George Elliot's death in 1985, all use of the old logging road by Elliot was with Lester Senor's express, blanket permission; 2) there is no record evidence of any 'open and notorious use' from 1985 until Defendants' purchase of the Elliott parcel in 1992 . . . ; and 3) even assuming that all of Defendants' use of the right of way from 1992 until Karl Senor's written permission in October 2003 and the onset of this litigation in April 2004, was 'open, notorious, hostile and continuous' and beyond the traditional uses allowed by the Senors, so as to establish Defendants' dominion and a 'claim of right' over the old farm road -- a fairly debatable assumption on this record, but indulged nonetheless -- it does not satisfy the required 15-year period," Pearson wrote.

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