Smith v. Town of Derby

Plaintiffs, Bruce and Pauline Smith, appeal from a decision of the Orleans Superior Court holding that a bridge to plaintiffs’ property and home had not become a town road by virtue of dedication and acceptance. Plaintiffs appeal, arguing that as a matter of law, the Town of Derby has accepted the bridge as *554a public road, and that the trial court relied on erroneous factors in reaching a contrary conclusion. We affirm.

The bridge in question spans the Johns River and allows automobile access only to plaintiffs’ property. It was built in the 1950’s, but the court was unable to find who built it. Through its road commissioner, the Town provided some maintenance of the bridge in the 1960’s, and in 1973, the selectmen approved rebuilding the bridge at town expense. Minutes of a selectmen’s meeting in August 1973 state that the “present board feels that a precedent has been created, therefore the selectmen will honor the past decisions and will rebuild and maintain the bridge in the future.” The minutes add: “This in no way obligate the town to maintain the drive leading to the bridge summer or winter.” The Town repaired and rebuilt the bridge on a number of occasions since 1993, but refused to rebuild it in 1996, when the bridge sank and water ran over it, making it unsafe for vehicle travel.

In refusing to repair the bridge, the Town noted that (1) it served only one residential lot; and (2) the road over the bridge was entirely private from its intersection with a town highway to the bridge, and thereafter until it reached plaintiffs’ home. Plaintiffs maintained the road, including plowing it and the bridge, during the winter months. The bridge did not appear on the map of town roads. The court relied on these facts in ruling that the Town had not accepted the bridge as part of the town highway system, and, therefore, was not legally obligated to rebuild it.

The issue of whether there has been a dedication and acceptance is a mixed question of fact and law. See Town, of Springfield v. Newton, 115 Vt. 39, 47, 50 A.2d 605, 610 (1947). The fact-finder must determine the “essential facts,” and the court must decide whether those facts meet the legal standard. Id. In this case, the superior court was the finder of fact and made the determination whether those facts met the legal standard for dedication and acceptance.

To make a road a public highway by dedication and acceptance, there must be both a dedication by the private owner and an acceptance of that dedication by the town. See Okemo Mountain, Inc. v. Town of Ludlow, 164 Vt. 447, 454-55, 671 A.2d 1263, 1269 (1995). A bridge may be dedicated and accepted as a public highway. See Newton, 115 Vt. at 43, 50 A.2d at 608.

The parties agree that there has been a dedication, but dispute whether the Town has accepted that dedication. To constitute acceptance, there must be both an act of acceptance and an intent to accept the dedication. See Okemo Mountain, Inc., 164 Vt. at 455, 671 A.2d at 1269. The intent to accept “may be inferred from evidence of assuming the burden of maintaining the road.” Id. Intent “is a question of fact.” Id.

The trial court found that plaintiffs failed to show that the Town, through its selectmen, intended to accept the dedication, and we cannot conclude that this finding was clearly erroneous. See Bissonnette v. Wylie, 166 Vt. 364, 370, 693 A.2d 1050, 1055 (1997) (factual findings not disturbed unless clearly erroneous). Although the court could infer acceptance from maintenance and repair, it was not required to do so. Town highways are “exclusively maintained by the towns,” 19 V.S.A. § 301(7); see also id. § 303 (town highways “shall be under the general supervision and control of the selectmen of the town”), but routine maintenance of the bridge, like snow removal, was performed by plaintiffs. It makes no sense to have a public bridge be accessible only through a private road. Thus, there is no evidence of public use of the bridge. If anything, under plaintiffs’ theory, the bridge must be a class 4 highway. The Town’s obligation to maintain a class 4 road is limited by the “necessity of the *555town, the public good and the convenience of the inhabitants of the town.” 19 VS.A. § 310(b). Here, neither necessity nor public good support maintaining a bridge for the sole use of the owners of one parcel of land and their invitees.

We also agree that the selectmen’s 1973 resolution does not show acceptance as a matter of law. The resolution is internally inconsistent because the selectmen accepted an obligation to make structural repairs to the bridge, but continued to call it a “private bridge.” Moreover, they refused such summer and winter maintenance of the road that would make the bridge accessible to the public.

Plaintiffs fault the trial court for its choice of factors to consider and its findings on repair of the bridge. On the latter point, they argue that the court’s finding that repair of the bridge by the Town was not “continuous” is clearly erroneous, especially in view of the subsidiary findings. The court’s finding on continuity was not to suggest, as plaintiffs argue, that the court found that there were instances when the Town would not repair the bridge. Instead, the court found that each repair instance required a separate discussion and decision of the selectmen, a process inconsistent with acceptance as a public highway. As to the factors the court considered, each one, or its opposite, has been used by this Court in earlier cases. See Gardner v. Town of Ludlow, 135 Vt. 87, 90, 369 A.2d 1382, 1384 (1977) (acceptance is supported in part by placement of road on state highway map); Druke v. Town of Newfane, 137 Vt. 571, 576, 409 A.2d 994, 996 (1979) (acceptance shown in part by public usage in reliance on the dedication); Newton, 115 Vt. at 45, 50 A.2d at 609-10 (although bridge provides access only to one business, up to twenty-five cars a day cross the bridge, and return, without going to the business).

Affirmed.