Sue Carter will appeal a Vermont Probate Court decision that granted Warren a right of way to a footpath that crosses her property. The footpath connects Brook Road to the Warren Elementary School.
On February 26, a Vermont Probate Court judge ruled in favor of the town. The right of way was established by right of prescriptive easement and is for foot traffic and agricultural use, according to Judge George Belcher’s decision.
The Carter estate will appeal Belcher’s decision to Vermont Superior Court, according to attorney Alan Uris.
The town of Warren filed a declaratory judgment petition to gain unobstructed access to the path at Vermont Probate Court in December after a Vermont Superior Court judge dismissed the case last July.
The town mistakenly sued Carter individually. The superior court ordered that the town apply to the probate court and open an estate making Carter the administrator so the town could choose to sue the estate.
In 2009, Carter posted a section of the path used over the years by schoolchildren and residents.
Carter engaged attorney Lauren Kolitch after the town’s attorney Paul Gillies issued an opinion that the path is considered a public right of way. Gilles maintained that there was deed language that allows access to the land where the Warren School is and referred to that access as a road or highway.
Attorney Alan Uris took over the case and represented Carter in subsequent litigation at the Vermont Superior Court and Probate Court.
The case went before Belcher in Vermont Probate Court on December 29; Carter was appointed special administrator to represent the estate concerning a quitclaim of a right of way. Carter and four additional heirs to the estate contested the town’s claim of a deed right of way.
Uris said he believed that the judge is in error because towns cannot take property by adverse possession and plans to appeal the decision to Vermont Superior Court.
In the findings of fact, Belcher found that a survey completed by Glenn Towne determined that the deed was in the chain of title of the town and that the deeded easement crossed the lot now owned by Carter and made it the servient estate.
Towne concluded that the deeded easement which now benefits the town and burdens the Carter estate was created by the 1858 deed.
According to his decision, “The argument is that a subsequent quitclaim deed of Cornelius Divoll (who owned the dominant estate) and others in April of 1865 gave up the easement. That quitclaim deed released an interest in 16 acres of land which had been conveyed by Daniel Ralph.”
Belcher’s findings also include evidence that the path of travel has been in use first for agricultural use and then by pedestrians for some 57 years.
Affidavits provided by Carter and Warren town clerk Reta Goss established that people have used the footpath to traverse from Brook Road to the Warren school for over 40 years.
Uris’ argument on behalf of the Carter estate was that the town can only take the defendant’s easement by condemnation, and not by adverse possession.
Belcher referenced two similar cases in his findings. “While the two cases seem to support the proposition that the taking of land by a municipality for public use requires a condemnation under the exercise of eminent domain with just compensation, neither case considered an argument of adverse possession.”
Belcher referenced a similar case wherein the town of Shelburne was successful in taking a piece of property by adverse possession because the land was not reverted to the prior owner when the use of the land was changed from one use to another.
The decision continues, “While there may be some jurisdictions which deny the right of adverse possession to municipalities, it has been generally held or recognized that the United States, a state, or other governmental body may acquire title to land by adverse possession.”
Belcher concluded, “In the case at bar, there is no legal preclusion to the town taking a prescriptive easement if the elements are proven. The arguments of the Carter estate on this point are rejected.”
He further concluded, “There is evidence that the easement was in use in excess of fifteen years during at least two continuous periods in history. During the first period the use benefitted the land for the purpose of agricultural. In the more recent period, the use for walking access by people getting to and from the school and to and from the recreation areas.”
Judge Belcher’s ruling established a right of way by right of prescriptive easement.
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