STATE OF VERMONT
ENVIRONMENTAL COURT
}
Appeal of Bowman } Docket No. 70-5-96
Vtec
} (formerly E96-070)
}
Decision and Order on Pending Motions
Appellant William M. Bowman, III, moves for relief from the March 5, 1997 decision
of the Environmental Court regarding the width of an easement1[1] benefitting the property
of Appellee-Applicants James and Renee Ackerman, and moves for summary judgment.
Appellees move for Rule 11 sanctions. Appellant represents himself; Appellees Ackerman,
as well as Appellee-Interested Parties Gary and Lindsay Ryan, Richard Schattman and
Ruth Dennis, and Lawrence and Barbara Young, are now represented by Charles F.
Storrow, Esq.; Interested Person James E. Nixon represents himself; and the Town of
Fairfax is now represented by Joseph S. McLean, Esq.
1[1]
In this document we will use the term Aeasement@ whenever possible, as the term
Aright-of-way@ is sometimes confused in colloquial use to refer to a traveled way, that is, an actual
roadway or driveway, rather than the easement over which it runs.
Renewed Motion for Relief from 1997 Environmental Court Judgment
We review the sequence of the conveyance of the parcels at issue in this litigation
and the sequence of the several cases brought before the Environmental Court and
Franklin Superior Court relating to this property, to the extent necessary to rule on the
pending motions.
All of the property at issue in the two rounds of Franklin Superior Court litigation
was derived from a common owner: John and Juanita Shedd. In 1960 the Shedds
conveyed a triangle of land by warranty deed to Clifford and Alma Parah. As described in
the deed, the property measured 113 feet along its southerly boundary at Route 104A, 210
feet along the easterly side of the triangle to its apex, and 250 feet along the westerly
side of the triangle. The Shedd-to-Parah deed reserved to the Shedds, in common with
the Parahs, the right to use Athe road leading from 104A to the Sugar Bush so-called,
over@ the Parah lot.
Nothing in that deed stated how much of the road traversed the Parah lot and how
much ran over neighboring Shedd land, and no survey from that transaction has been
presented in evidence in either court. If the ten-to-fourteen-foot-wide >gravel drive= shown
on the 1988 Peter Cross survey for Matthew Van Brocklin was in the same location as the
1960 >road= referred to in the Shedd-to-Parah deed, only the most southwesterly corner of
the road ran over only the most southeasterly corner of the triangular Parah lot, and the
remainder of the road ran on the then-Shedd property to the east of the Parah lot, later
deeded to Simoneau and Wiggin. This Court has no jurisdiction to establish the Shedds
intent in 1960, or at any time, as this Court cannot resolve property or contract disputes.
In 1975, Matthew Van Brocklin2[2] acquired what had been the Parah lot. Between
1978 and 1987 the Shedds conveyed additional parcels with access from Route 104A
over the same easement.
2[2]
A predecessor-in-interest to Appellant Bowman.
On July 27, 1984, the Shedds conveyed by warranty deed to Allen Simoneau and
Sal Wiggin a 5.78-acre parcel of land with frontage on Route 104A, directly easterly of the
Van Brocklin (former Parah) lot. In that deed, the Shedds stated that the
Simoneau/Wiggin parcel was Asubject to a certain right-of-way to be used in common by
the Grantors, their heirs and assigns, and others,@ and described the >right-of-way= as
being Alocated along the westerly line@ of the Simoneau/Wiggin lot3[3].
In 1985, the Youngs, owners of one of the back lots with access by this easement,
sought ZBA approval of improvements on their property. The ZBA approval was first
denied and later granted, subject to proof that the easement serving their property was at
least 25 feet in width. At the request of Lawrence Young, on June 24, 1985, the Shedds
and Allen Simoneau and Sal Wiggin (but not Van Brocklin) entered into an agreement
stating it was their understanding that the right-of-way referred to in the Shedd-to-
Simoneau/Wiggin deed Ahas been, is, and shall be twenty-five (25) feet in width over its
3[3]
Appellant has claimed that the Shedds had no authority to grant this right-of-way to
Simoneau/Wiggin, arguing they had already granted it to Parah and had only reserved the right to
use it to themselves and their heirs. According to the 1988 survey map, however, prior to the
1984 conveyance (and the 1988 settlement) a portion of the traveled way passed over what was
then the Shedd property, separate from the portion that passed over the corner of the triangular
deeded Parah parcel, which was the only parcel subject to that limiting language. In any event,
this issue was settled in the 1988 settlement of the Van Brocklin v. Shedd litigation, Docket No.
S301-86 Fc in Franklin Superior Court, and this Court has no jurisdiction to inquire further.
entire length.@ It is this agreement that Appellant argues was Afraudulent.@
Because Van Brocklin was not a party to that agreement, we note that the
signatories to that agreement only had authority to agree about the width of the easement
as it extended over what was then the Simoneau/Wiggin property (and onto the Shedd
property), as those were the owners of the land underlying the easement. Their
agreement could not and did not purport to extend the easement onto what was then the
triangular deeded parcel of Van Brocklin land. However, only the Franklin Superior Court
then had or now has jurisdiction to locate that easement on the ground. In any event,
nothing about their agreement as to the width of the easement demonstrates that it was
obtained through fraud.
Less than a month later, on July 15, 1985, Van Brocklin, the Youngs and the
Shedds, (but not Simoneau and Wiggin), entered into a separate agreement providing that
the center line of the right-of-way was the center line of the then-existing traveled way
(gravel drive). If, as alleged in the Superior Court proceedings, Van Brocklin was
unaware of the earlier 25-foot-width agreement between his neighbors when he agreed to
the location of the centerline, any grounds for an argument that this centerline-location
agreement was fraudulently procured should have been made to the Superior Court, the
only court with jurisdiction over any such argument. The fact that no such argument
appears to have been made in either the 1986 or the 1999 Superior Court cases cannot
be remedied in this Court.
By this time in 1985, it appears that the then-owners of the properties, that is, at
least Van Brocklin, Simoneau and Wiggin, and the Shedds (their common grantors),
disagreed as to whether the traveled way was located on Van Brocklin property or on
Simoneau/Wiggin property, and possibly also disagreed as to whether the underlying
easement was located on Van Brocklin property or on Simoneau/Wiggin property, or in
part on both properties.
In 1986, Van Brocklin brought an action in Franklin Superior Court to resolve those
questions. Van Brocklin v. Shedd, Franklin Superior Court Docket No. S301-86 Fc. We
do not have before us the file in that 1986 action that might reveal whether the parties
addressed the distinction between the width and location of the traveled way as opposed
to or as compared with the width and location of the underlying easement. If the two
1985 agreements were on their face mutually incompatible as they affected the first
hundred feet of the gravel drive, from Route 104A to the rear of the house, that argument
should have been made to the Superior Court, the only court with jurisdiction over it. In
their 1986 litigation, the then-parties could have resolved whether the agreement about the
width of the easement (which would have had to have extended the easement onto
Simoneau/Wiggin property to avoid affecting the deeded Van Brocklin triangle, as Van
Brocklin was not a signatory to it) was incompatible with the agreement as to the location
of the centerline of the easement (which Simoneau and Wiggin had not signed.)
In any event, that litigation, Van Brocklin v. Shedd, Docket No. S301-86 Fc, was
settled in 1988 by an agreement among Van Brocklin, the Shedds, Simoneau and Wiggin.
The survey that resulted from that settlement established the location of the traveled way
(gravel drive) within the Van Brocklin parcel, established the new property line, and
obligated the users of that access not to expand it any farther to the west than its then-
present location. In that settlement, the Shedds and Simoneau and Wiggin quitclaimed to
Van Brocklin all right and title they had to any property westerly of the newly surveyed
easterly property line of the Van Brocklin parcel, which was established just to the east of
the traveled way (and included additional land so that the water supply for the Van
Brocklin parcel formerly on Shedd land would be located on Van Brocklin land). That
settlement was, however, silent as to the location of the traveled way (the gravel drive
shown on the 1988 survey) within the easement, and does not appear to have vacated or
withdrawn or superseded either of the 1985 agreements. Any need on the part of those
litigating parties or their successors to reopen that settlement to clarify the location of the
traveled way within the easement, or the location of the easement on the ground, should
have been addressed or should be addressed to the Franklin Superior Court. This Court
has no jurisdiction to affect a Superior Court settlement or judgment, whether issued
eighteen years ago or more recently.
In 1992, Van Brocklin deeded the parcel to another owner, who quitclaimed it in
1996 to Appellant Bowman.
In 1996, Appellant filed the present appeal of a grant of zoning approval to
Appellee-Applicants Ackerman, claiming that their access to Route 104A was not at least
25 feet in width. After an evidentiary hearing at which only the Town was represented by
counsel, the Environmental Court issued a decision that the Ackerman property had access
by a right-of-way or easement at least 25 feet in width (although finding the traveled way
to be narrower), based on the June 24, 1985 agreement, and concluding that Appellee-
Applicants Ackerman were entitled to their permit. The Vermont Supreme Court upheld
that decision in a three-justice-panel decision in March of 1998. The Environmental Court
had no jurisdiction then, and still has no jurisdiction, to reform either of the 1985
agreements or to reopen or otherwise alter the 1988 settlement of Van Brocklin v. Shedd.
The Environmental Court did not and could not locate that easement on the ground, or
rule on the location of the gravel drive within the easement, or on whether some portion of
the easterly side of the easement was located on Simoneau/Wiggin property. All that it
had before it to decide, and that it did decide on March 7, 1997, was that Appellee-
Applicants Ackerman had met their burden of proof under the Zoning Regulations to show
that they had access to their property by a 25-foot-wide easement. Nothing about the
subsequent litigation in Superior Court or the Supreme Court has changed that fact.
In 1999, Appellant filed an action to quiet title and for declaratory judgment in
Franklin Superior Court to establish the property rights that were outside the Environmental
Court=s jurisdiction, and to prevent the Ackermans from extending the traveled way farther
to the west, that is, closer to Appellant Bowman=s house. Bowman v. Ackerman, et al.,
Docket No. S217-99 Fc. In that litigation, the Franklin Superior Court accepted the 25-
foot-width of the underlying easement as found by the Environmental Court from the 1985
agreement. The Vermont Supreme Court affirmed the Franklin Superior Court=s reliance
on the Environmental Court=s finding regarding the width of the right-of-way, see Bowman
v. Ackerman, et al., Docket No. 2003-133 (October 2, 2003) (mem.), as well as the
Franklin Superior Court=s dismissal of Simoneau and Wiggin from that litigation.
However, accepting that width for the easement did not locate the easement on the
ground in relation to the traveled way. It was up to the Superior Court and not the
Environmental Court to determine the effect of the 1988 settlement on the earlier 1985
agreements, and whether to take evidence on or reopen the 1988 settlement to establish
the location of the ten-to-fourteen-foot-wide traveled way (gravel drive)within the twenty-
five-foot-wide easement. The fact that it did not do so and that the Supreme Court
upheld its decision is not within the jurisdiction of this Court to address.
Accordingly, based on the foregoing, Appellant=s Motion for Relief from Judgment,
seeking to reopen this Environmental Court appeal, is DENIED. The above-captioned
case remains concluded and we therefore do not reach Appellant=s motion for summary
judgment.
Rule 11 Sanctions and Timeliness
Although Appellant has brought these issues to Superior Court as well as to this
Court, and the Supreme Court has upheld both lower courts, his filing of the motion for
renewed relief from this Court=s March 1997 decision is not frivolous or presented for an
improper purpose so as to warrant V.R.C.P. 11 sanctions, it merely reflects an
unrepresented party=s lack of understanding of the scope of Environmental Court
jurisdiction. Appellant was entitled to use every effort to try to bring his issues regarding
the width, location and use of the easement before a court with jurisdiction to decide them.
Although the Environmental Court does have jurisdiction to determine whether a permit
applicant has met all the requirements of the zoning ordinance, including whether the
permit applicants have met their burden of proof that they have access to their property
over an easement of a certain minimum width, it does not have jurisdiction to determine
the underlying property rights of the affected parties. However, at the time of this Court=s
1997 decision and order, this Court had not yet had occasion to make that distinction clear
in a court ruling. See, e.g., Appeal of Cole, 174-10-01 Vtec (Vt. Envtl. Ct., May 12,
2003).
Appellant=s motion for relief from judgment was originally made shortly after the
Superior Court decision relying on the Environmental Court=s decision, and therefore was
timely when made. This Court postponed it until after the appeal to the Supreme Court of
the related Superior Court action would have been concluded, as the issues in that appeal
could have affected Appellant=s perceived need for reconsideration in the present appeal.
Appellant=s renewed motion was timely after the Supreme Court=s ruling on the Superior
Court appeal.
Accordingly, Appellees= Motion for Rule 11 Sanctions is DENIED.
Because the 1988 settlement prohibited the expansion of the gravel drive westerly
of its extent as of the 1988 survey, it may be to the advantage of the parties to use the
assistance of a mediator to see if they can come up with a resolution to govern the
relationship of these properties and the use of the traveled way into the future, and to
avoid future litigation in Environmental or Superior Court.
We also note that we have scheduled a conference for July 5, 2005, with Mr.
Bowman and the Town=s attorney to discuss Docket No. 163-10-01 Vtec; notice enclosed
for the participating parties in that separate appeal.
Done at Berlin, Vermont, this 21st day of June, 2005.
_________________________________________________
Merideth Wright
Environmental Judge
Appeal of Bowman
Combined Opinion