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McAdams v. Town of Barnard (2005-542)
2007 VT 61
[Filed 20-Jul-2007]
NOTICE: This opinion is subject to motions for reargument under
V.R.A.P. 40 as well as formal revision before publication in the Vermont
Reports. Readers are requested to notify the Reporter of Decisions,
Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
any errors in order that corrections may be made before this opinion goes
to press.
2007 VT 61
No. 2005-542
Herbert Hall McAdams III and Supreme Court
Letty McAdams
On Appeal from
v. Windsor Superior Court
Town of Barnard March Term, 2007
Theresa S. DiMauro, J.
Karen McAndrew and Douglas D. Le Brun of Dinse, Knapp & McAndrew, P.C.,
Burlington, and Kent J. Rubens of Rieves, Rubens & Mayton (Of Counsel),
West Memphis, Arksansas, for Plaintiffs-Appellants.
Timothy M. Eustace of Stitzel, Page & Fletcher, P.C., Burlington, for
Defendant-Appellee.
PRESENT: Reiber, C.J., Dooley, Johnson, Skoglund and Burgess, JJ.
1. BURGESS, J. Herbert and Letty McAdams ("landowners")
brought this action in superior court against the Town of Barnard for
declaratory judgment to quiet title to their land in Barnard. Landowners'
motion for summary judgment was granted in part, providing them with a
judgment order stating that "there are no known public roads, easements,
rights-of-way or trails" (hereinafter "public road" or "road") on their
property. To the extent landowners sought additional relief in the form of
a judgment that no other public roads exist, the court granted the Town's
motion to dismiss. Landowners appealed the judgment, believing a
definitive statement that there are no public roads on their land is
necessary to quiet title. We reverse and remand.
2. The facts are not in dispute. Landowners hold title to
approximately 280 acres in Barnard ("the property"). In 2001, landowners
sought to make improvements to the property. As part of this process, they
requested that the Town discontinue an abandoned, dead-end road, Town
Highway (TH) #15, that crossed the property. The Town conducted a
discontinuance hearing pursuant to 19 V.S.A. 709 (requiring notice and
hearing to discontinue a road) and discontinued the portion of TH #15
crossing the property. Some time later, landowners were granted a building
permit for their improvements, but a group of Town residents appealed
issuance of the permit. Landowners ultimately prevailed in obtaining the
permit after they appealed to the Environmental Court. Landowners then
filed suit in federal court against the residents who had opposed the
permit, claiming that the residents had acted in concert with state actors
to deprive landowners of the permit in violation of their constitutional
rights to due process and equal protection. The Town itself was not named
as a defendant in that suit.
3. In 2003, the Town produced a set of maps depicting all parcels
of land and known public highways and rights-of-way within the Town. The
Town's maps indicated another public road, "Dean Road," crossed a portion
of the property. There was also reference in Town records to another road
of undetermined location, known as the "page 4 survey road" or "Fairbanks
Road" that possibly affected landowners' title. Landowners thereafter
filed the present suit against the Town to determine whether any valid town
highways or rights-of-way existed on the property.
4. In August 2004, the Town and landowners entered into a
mediation agreement in the present case. The Town agreed to initiate 709
proceedings to discontinue Dean Road and Fairbanks Road. The Town also
agreed to admit that it was not aware of any other roads or rights-of-way
and that it claimed no interest in any roads or rights-of-way on the
property. The agreement provided that, when these tasks were completed,
landowners could move for summary judgment, with the Town reserving its
right to respond to such a motion. In November 2004, the Town initiated
proceedings to discontinue the two roads.
5. Meanwhile, in the federal suit, landowners moved to amend their
complaint to add the Town as a defendant. Prior to a ruling on that
motion, a mediation session was held in January 2005. At the mediation
session, all parties to the federal suit and the Town entered into a
Memorandum of Settlement that provided in pertinent part:
3. The Town of Barnard agrees, subject to formal Selectboard
approval, that it will promptly take all appropriate legal steps
to discontinue any known or claimed town roads or highways that
traverse or lie within the McAdams' property, including taking all
steps necessary to ratify its prior action in discontinuing TH 15.
Warnings to accomplish the foregoing shall be published no later
than 30 days after the signing of this Agreement, and the action
shall proceed with all deliberate speed.
4. The Town agrees that if any other roads on the McAdams'
property not presently known, become know[n], the Town will at
that time take all appropriate steps to initiate discontinuance
proceedings with respect to such newly-discovered ancient roads.
5. The defendants, as individuals and in their official
capacities, agree that they will not appeal or interpose any
objection to the Town's actions in discontinuing the roads as
stated in Paragraphs 3 [and] 4.
6. The parties will exchange releases with respect to all
claims, including but not limited to all claims for costs and
attorneys' fees pursuant to 42 U.S.C. 1983 and 1988, and
settlement consideration at such times as the steps taken in
Paragraph 3 have been accomplished and court orders have been
entered on the settlement agreements in both the pending state and
federal cases, and the actions have been dismissed, with
prejudice.
The Town completed discontinuance of all three known roads,(FN1) and
subsequently requested landowners to stipulate to dismissal of the state
court action pursuant to the federal mediation agreement. Landowners
refused to agree to dismissal, maintaining that they were entitled to move
for summary judgment on their claim for declaratory judgment pursuant to
the state mediation agreement. Landowners subsequently filed a motion for
summary judgment on June 20, 2005. At a hearing in superior court to
discuss the proposed stipulated dismissal and landowners' objections to it,
the court indicated that it would wait for a formal motion to dismiss from
the Town and rule on both motions together.
6. In support of dismissal, the Town argued first that it had
complied with the federal settlement agreement and the case should be
dismissed on that basis. The Town further argued that the case had become
moot when all known roads over the property were discontinued and that the
court was without authority to declare any remaining, unknown roads to be
nonexistent when the statute provided only for discontinuance by town
selectboards. Landowners took the position that the federal court
settlement agreement did not supersede the state settlement agreement's
provision that the state case would be decided on summary judgment. At
most, said landowners, the federal court agreement was ambiguous and other
evidence pointed to their intent that the state case not be dismissed. In
response to the Town's mootness argument, landowners maintained that a
quiet title action is not moot until all of a party's claims to a property
are resolved, and that had not yet happened because there still existed the
possibility that the Town could, at some later time, claim some newly
discovered right-of-way across the property. Landowners further maintained
that it was within the court's equitable power to declare the existence or
nonexistence of roads, the statutory provisions for discontinuance
notwithstanding.
7. The lower court's decision adopted all of the Town's arguments
and concluded that landowners were not entitled to the judgment they sought
for three reasons. First, the court said, the undisputed facts supported
only a conclusion that there were no known public roads on the property,
not that there were no public roads at all. Second, the court lacked
authority to declare the non-existence of any public roads because roads
may only be discontinued in accordance with a statutory procedure.
Finally, the Town was entitled to dismissal based on the federal settlement
agreement.
8. On appeal, neither party briefed dismissal pursuant to the
federal settlement agreement, focusing instead on the superior court's
authority for declaring the nonexistence of any roads on a property and
whether there was an actual case or controversy remaining. Arguments not
briefed are waived. Bigelow v. Dep't of Taxes, 163 Vt. 33, 37-38, 652 A.2d
985, 988 (1994). We therefore move to the issues of mootness and the
court's authority to declare the nonexistence of roads.(FN2)
9. Landowners brought this suit as a declaratory judgment action
to quiet title. Declaratory judgment is appropriate when a judgment "will
terminate the controversy or remove uncertainty." 12 V.S.A. 4715. This
controversy must involve the threat of actual injury to a party's protected
interest. Doria v. Univ. of Vt., 156 Vt. 114, 117, 589 A.2d 317, 318
(1991). Otherwise, "a declaratory judgment is merely an advisory opinion
which [courts] lack the constitutional authority to render." Id. The Town
does not dispute that the two claimed public rights-of-way provided a
sufficient controversy to give the court jurisdiction at the time that
landowners filed suit. The Town claims that by discontinuing the two known
roads, any threat of actual injury to landowners ended, and consequently,
jurisdiction was extinguished.
10. Accepting the Town's position would allow quiet title
defendants to escape final resolution of all potential disputes by taking
each claim piecemeal. An adjudication that a right-of-way does not exist
in one place on a property would not preclude subsequent litigation as to
whether a right-of-way exists in another place on the same property. Some
jurisdictions have taken a more economizing approach that provides for all
potential disagreements to be adjudicated at one time: "The object of the
[quiet title] action is to finally settle and determine, as between the
parties, all conflicting claims to the property in controversy, and to
decree to each such interest or estate therein as he may be entitled to."
W. Aggregates, Inc. v. County of Yuba, 130 Cal. Rptr. 2d 436, 456 (App.
2002) (quotations omitted) (affirming finding that historic public road
existed on plaintiff's property). A conflicting claim need not be active
at the time of adjudication:
[W]here a person is seized and possessed of a legal estate or
interest and is unable to obtain an adequate legal relief against
an invalid adverse title or right therein apparently arising under
a deed, instrument or proceeding relating to real estate so that
such deed, instrument, or proceeding may injuriously or
vexatiously affect or embarrass the owner's title, or render
precarious or doubtful his ability to produce existing extrinsic
proof when, in the future, the adverse claimant would seek to
enforce the adverse title or right which is being held in
abeyance, the owner's privilege to have recourse to equity to have
the cloud in his title or interest removed is unquestioned . . . .
Homewood Realty Corp. v. Safe Deposit & Trust Co. of Baltimore, 154 A. 58,
64 (Md. 1931) (emphasis added) (affirming adjudication in quiet title
action of defendant's use of plaintiff's air space for opening and closing
shutters when plaintiff was otherwise without remedy to clear title).
Thus, while there must be a threat of actual defect to a landowner's title
for a case or controversy to exist, the threat can extend to claims that
are not actively being pursued.
11. In this case, landowners filed suit after three roads had been
identified on the property, at least two of which were legal rights-of-way
claimed by the Town. The existence of these roads gave rise to a threat of
actual defect in title and, thus, a justiciable case or controversy.
Resolution of the title dispute should then include all potential claims,
to resolve once and for all, as between the parties, the title to the
subject land.(FN3) Accordingly, we agree with landowners that when a
party has claimed the existence of a right-of-way, a judgment expressing
whether there are or are not any existing rights-of-way is ordinarily
appropriate. However, this case is complicated by the fact that the party
that claimed a right-of-way is a municipality. We next consider the effect
of such a judgment in light of the statutory framework for discontinuing
public roads.
12. The Town argues that courts are without authority to declare
the nonexistence of public rights-of-way when discontinuance of a public
road may only be performed in accordance with statutory procedures. Before
discontinuing a road, the town's selectboard must give public notice,
examine the premises, and hold a hearing. 19 V.S.A. 709. Failure to
comply with these procedures will render any purported discontinuance void.
In re Bill, 168 Vt. 439, 442-45, 724 A.2d 444, 446-48 (1998) (finding road
was not discontinued when selectboard failed to comply with then-applicable
procedure for discontinuance); Capital Candy Co. v. Savard, 135 Vt. 14,
16-17, 369 A.2d 1363, 1365-66 (1976) (holding that mere abandonment does
not constitute discontinuance because statutory procedure for
discontinuance has not been followed). While the Town is correct that a
selectboard must follow statutory procedures to validly discontinue a road,
this does not preclude adjudication of the issue of whether there are any
existing public roads on a property.
13. Determining whether any public roads exist is not the same as
a discontinuance. Discontinuance is performed to extinguish a known road.
Here, the court is being asked to determine simply whether any roads exist.
(FN4) The Town argues that a declaratory judgment "would effectively
'discontinue' any and all currently unknown, but subsequently discovered,
town highways across [the property]." Implicit in this argument is the
Town's belief that it is impossible for the parties and, consequently, the
court to determine with absolute certainty whether any additional roads
exist over the property.(FN5) The difficulty in determining whether
abandoned roads still legally exist stems from inconsistent, and sometimes
incomprehensible, town records dating back two centuries or more. See
generally P. Gillies, Sleeping Roads, Vt. Bar J., Spring 2004, at 14-16.
However, these difficulties should not preclude judgment in landowners'
favor where the burden was on the Town to prove any right it had to the
property. Beulah Hoagland Appleton Qualified Personal Residence Trust v.
Emmet County Road Comm'n, 600 N.W.2d 698, 700 (Mich. App. 1999) ("In an
action to quiet title, the plaintiffs have the burden of proof and must
make out a prima facie case of title. If the plaintiffs make out a prima
facie case, the defendants then have the burden of proving superior right
or title in themselves." (citation omitted)). The burden was thus fairly
placed on the Town to review its own records and discern whether any roads
existed. That the Town might be barred in the future from asserting a
right-of-way based on a newly discovered, but now unknown, road is not a
"discontinuance" as contemplated by 709, but is a function of res
judicata or collateral estoppel precluding successive litigation over
matters that the Town could have raised in the instant case. See In re St.
Mary's Church Cell Tower, 2006 VT 103, 3, 12, __ Vt. __, 910 A.2d 925
(mem.) (barring litigation of a claim that was or could have been fully
litigated in prior proceeding); Scott v. City of Newport, 2004 VT 64 8,
177 Vt. 491, 857 A.2d 317 (mem.) (listing as a criterion of collateral
estoppel that there was a "full and fair opportunity to litigate the issue"
previously).
14. We emphasize that landowners may attain the remedy sought in
this case only because abandoned, but legally existing, roads had been
identified by the Town and still existed at the time suit was filed. These
circumstances gave rise to a threat of actual defect in title from both
identified and unidentified dormant roads and, thus, a justiciable case or
controversy.
Reversed and remanded for determination of the existence of any public
roads on plaintiffs' property.
FOR THE COURT:
_______________________________________
Associate Justice
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Footnotes
FN1. In addition to Dean Road and Fairbanks Road, the Town renewed its
discontinuance of TH #15 because of concern as to whether the Town followed
the correct process to discontinue TH #15 in 2001.
FN2. There is support for the proposition that the federal court settlement
agreement does not require dismissal in any event. Paragraph 6 of the
federal court settlement appears to contemplate further court orders in the
pending state case. In light of the prior state settlement that had
explicitly contemplated landowners' moving for summary judgment, the
federal court agreement could be interpreted as allowing for landowners'
motion for summary judgment and not necessitating dismissal.
FN3. Because res judicata bars only relitigation of claims between the same
parties or parties in privity, In re St. Mary's Church Cell Tower, 2006 VT
103, 3, __ Vt. __, 910 A.2d 925 (mem.), this would not preclude claims
by neighboring landowners to a private right-of-way over former public
roads to the extent such claims are available under 19 V.S.A. 717(c)
(Cum. Supp. 2006).
FN4. A recent amendment to 19 V.S.A. 717 implicitly acknowledges court
authority to adjudicate the existence of roads. 2005, No. 178 (Adj.
Sess.), 4. That section now provides for a "presumption of
discontinuance" when a road has not been maintained by the municipality for
thirty years. 19 V.S.A. 717(b). This presumption is rebuttable by
evidence of the municipality's intent to continue the road as a public
right-of-way. Id. A dispute as to the applicability of 717(b) would
apparently require court adjudication of whether the road is or is not
presumptively discontinued, based on evidence of maintenance and intent.
FN5. The conundrum of known unknown roads brings to mind one of former
Secretary of Defense Donald Rumsfeld's famous existential musings: "As we
know, there are known knowns. There are things we know we know. We also
know there are known unknowns. That is to say we know there are some
things we do not know. But there are also unknown unknowns, the ones we
don't know we don't know." D. Sevastopulo, Bush's Poet-in-Residence Rides
Away to Find Montana, Financial Times, Nov. 11, 2006, at 3, available at
2006 WLNR 19711333. Unaddressed by Mr. Rumsfeld's remarks is a potential
fourth category, unknown knowns: things we do not know that we know. |