Old Railroad Bed, LLC v. Marcus, No. 283-8-10 Bncv (Hayes, J., Dec. 1, 2011)

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                                                          STATE OF VERMONT

SUPERIOR COURT                                                                                         CIVIL DIVISION
Bennington Unit                                                                                        Docket No. 283-8-10 Bncv


Old Railroad Bed, LLC,
 Plaintiff,

    v.

Ronald A. Marcus, Kristi Marcus,
Vernon West, Cathy Cushing,
Don Dykes, Eleanor Dykes, and
Bradford A. West,
 Defendants


                DECISION ON MOTION FOR SUMMARY JUDGMENT (ADVERSE POSSESSION)

           This ejectment action arises out of a dispute over the ownership of a tract of land in

Manchester, Vermont. The tract is a railroad bed formerly used by the Manchester, Dorset and

Granville Railroad (MD&G) to transport marble from Vermont to points south. In the 1930’s,

MD&G shut down its railroad operation, dissolved, and tore up its tracks. Just before its

dissolution, MD&G conveyed the old railroad bed tract to its parent corporation, the Vermont

Marble Company in 1936. In 1992, Vermont Marble Company merged into OMYA, Inc. In 2009,

OMYA, Inc. conveyed the tract by quitclaim deed to the plaintiff, Old Railroad Bed, LLC. The

defendants are landowners1 whose land was adjacent to the MD&G railroad line when the line

was in use. Plaintiff seeks the ejectment of the defendants from the land in question, and the




1
  The suit was originally filed against Ronald and Kristi Marcus only, but several adjacent landowners moved to
intervene as defendants on October 6, 2010. On November 1, 2010, the court granted the motion. See 7C Wright,
Miller & Kane, Federal Practice and Procedure: Civil 3d § 1920 (“Unless conditions have been imposed, the
intervenor is treated as if the intervenor were an original party and has equal standing with the original parties.”).
defendants have filed counterclaims, seeking declaratory relief establishing their title to the

land based on adverse possession.

       Defendants claim that after MD&G tore up its tracks, their predecessors in interest put

up post and wire fences that extended over and encompassed the railroad bed. Defendants

have filed two motions for summary judgment, and a hearing was held on both motions on

October 24, 2011. The first motion, based on a theory of extinguishment of right of way, was

denied by written decision issued on November 9, 2011. The second motion, decided here, is

based on a theory of adverse possession.

       Summary judgment is appropriate “if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits . . . referred to in the

statements required by Rule 56(c)(2), show that there is no genuine issue as to any material

fact and that any party is entitled to judgment as a matter of law.” V.R.C.P. 56(c)(3). The

purpose of summary judgment is to “pierce the pleadings and to assess the proof in order to

see whether there is a genuine need for trial.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio

Corp., 

, 586–87 (1986) (citation omitted). The moving party “has the burden of

proof, and the opposing party must be given the benefit of all reasonable doubts and

inferences in determining whether a genuine issue of material fact exists.” Price v. Leland, 

, 521 (1988). Summary judgment is appropriate “where, after an adequate time for

discovery, a party ‘fails to make a showing sufficient to establish the existence of an element’

essential to his case and on which he has the burden of proof at trial.” Poplaski v. Lamphere,

, 254-55 (1989) (quoting Celotex Corp. v. Catrett, 

, 322 (1986)).




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       The court derives the undisputed facts from the parties’ statements of fact under

V.R.C.P. 56(c)(2). Facts in the moving party’s statement are deemed undisputed when

supported by the record and not controverted by facts in the nonmoving party’s statement that

are supported by the record. See Boulton v. CLD Consulting Eng’rs, Inc., 

, ¶ 29, 

(citing Richart v. Jackson, 

, 97 (2000)).

       Defendants claim that their predecessors in interest acquired title to the strip of land in

1951, after fifteen years of continuous adverse possession, and that the undisputed material

facts demonstrate their adverse possession, and entitle them to judgment as a matter of law.

To achieve title to land through adverse possession, a claimant must show that his use of the

land was “open, notorious, hostile and continuous throughout the statutory period of fifteen

years.” MacDonough-Webster Lodge No. 26 v. Wells, 

, ¶ 24, 

; see also 12

V.S.A. § 501; Lysak v. Grull, 

, 526, 

, 844 (2002) (mem.) (“In order to

earn title to property by adverse possession, each of the petitioners must establish open,

notorious, hostile, and continuous possession of the property through the statutory period of

fifteen years.”). The burden of proving adverse possession falls on the party claiming it. Rueda

v. Kuban, 

, 586 (1975).

       Defendants assert that between 1934 and 1936, “the farmers between North Road and

the Daley (sic) Gravel Pit enclosed their farms with post and wire fences that crossed over the

old ROW and cut it up into segments along the property lines of those farms.” Def. Mot. Summ.

J. (Adverse Possession) 4. The purpose of the fencing, defendants claim, was to use the strip of

land for “as fenced in pasture for cattle or as cultivated fields for hay, corn or other crops.” 

In the defendants’ reply brief and at oral argument, the defendants began to refer to all of



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the activities on the strip of land as “farming.” However, the initial description in the motion

for summary judgment contained the following detailed description of the activities in

question:

       From 1938 to the late 70’s or early 80’s the old ROW and surrounding land was open
       and used for farming. The Beattie farm where the Dykes live was fenced in open land
       used for pasturing cattle. The West family has worked their farm from 1938 to the
       present. Exhibit 28 is pictures showing Brad West’s family farming during the mid
       1960’s. The ROW and surrounding land is open farmland. For years before 1984, Brad
       West leased the Marcus property from Kristi’ [sic] Marcus’ grandfather, Allan Brown,
       and grew hay and corn where Ron and Kristi now pasture their horses. Brad grew
       potatoes in the old ROW on the Marcus property. Ron and Kristi have enclosed their
       pasture with wire fencing since 1989 and pastured their horses there.

use of the land included both pasturing livestock and cultivating crops.

       Under Vermont law, to achieve adverse possession one must “unfurl his flag on the

land, and keep it flying so that the owner may see, if he will, that an enemy has invaded his

dominions and planted his standard of conquest.” Laird Properties New England Land

Syndicate v. Mad River Corp., 

, 277 (1973). The act of fencing in a particular piece of

property is not necessarily sufficient to constitute the unfurling of a flag on a piece of land so as

to begin the period of adverse possession. In First Congregational Church of Enosburg v.

Manley, 

, ¶19, 

, the Supreme Court held that since the fencing of a piece

of property was “done to contain animals and not to establish a boundary between the

properties,” it was insufficient to establish adverse possession. For a fence to establish adverse

possession, it must be a boundary fence, and not merely a fence of convenience. See Wells,

2003 VT at ¶ 28 (citing Hovendick v. Ruby, 

, 1123 (Wyo. 2000)); see also N.A.S.

Holdings, Inc. v. Pafundi, 

, 441-42 (discussing ways to achieve “constructive

possession” by marking boundaries on the land).



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       Defendants do not state in their motion that the purpose of the fencing was to establish

a boundary; instead, they suggest that the fencing was erected either to delineate cultivated

crop land or to contain livestock. If the facts established that all of the strip of land was actively

used for cultivating crops for the fifteen-year period, this would be a closer case; instead, the

facts seem to show that some land was used to grow crops, and that some land was used to

pasture livestock. It is not clear whether either of these uses was continuous as to any portion

of the land in question. The defendants’ statement of facts does not clearly indicate what the

intent of the fence was, and which, if any, of the adjoining property owners intended it to be a

boundary fence and which were merely enclosing their farms to allow livestock to graze freely.

The fencing alone, therefore, is insufficient to establish adverse possession as a matter of law.

       Even assuming defendants’ facts clearly establish that the adjoining property owners

fenced in the strip of land in order to establish a boundary, there are disputed material facts

with respect to other elements of adverse possession. In particular, the parties disagree over

whether the use of the land was open and notorious, such that Vermont Marble (the record

title holder from 1936-1951) would have been on notice of the use. To prove open and

notorious use, defendants offer the testimony of Brad West, who has lived on one of the tracts

of land abutting the old railroad bed since 1938, when he was five years old. Mr. West asserts

that the use of the strip of land would have been obvious to any observers. Additionally,

defendants state that “[t]he raised railroad bed was plowed down to grade on the Hadden




                                                  5
property,” a change in the topography that would have been obvious to observers. Def.

Statement of Undisputed Facts (Adverse Possession) 7.2

         Plaintiff has offered no direct testimony from witnesses familiar with the property

between 1936 and 1951, presumably because many such witnesses are now unavailable given

the timing of defendants’ adverse possession claim. Plaintiff does, however, point to several

pieces of evidence in the record that tend to suggest that the use was not open and notorious.

When OMYA commissioned an investigator, Robbo Holleran, to walk the strip of land in 1994,

Mr. Holleran reported that the segment passing through the defendants’ properties “does not

show any trespass, is fairly easy to find in most places, and has an existing footpath either on it

or alongside it through much of the way.” Pl. Ex. 12; see also Pl. Ex. 11.3 Two others, William

Badger and Lee Krohn, who walked the strip of land around the same time period, also

reported no evidence of open and obvious use. See Pl. Ex. 14-15. Similarly, when Old Railroad

Bed LLC hired a surveyor, Larry Parks, to walk the strip of land in 2009, Mr. Parks did not report

evidence of defendants’ open and notorious use. Pl. Ex. 6-7. In addition, in 1992, the Beatties

(predecessors in interest to defendants Don and Eleanor Dykes) sought and obtained from

OMYA an easement over the strip of land. See Pl. Ex. 21. OMYA also granted an easement to a

telephone company in 1999. See Pl. Ex. 30. While this evidence does not directly contradict

Mr. West’s claims about the use of the strip of land from 1936 to 1951, it does create a

sufficient dispute over material fact to cause this issue to be inappropriate for resolution at the

2
  Defendants also state that “[t]he old ROW does not even exist anymore on the Dailey Gravel Pit property. Only a
large hole in the ground remains.” However, as the Dailey property is not involved in this suit, this evidence is not
directly relevant as to the open and notorious use of this strip of land.
3
 Mr. Holleran did report that “[t]he section north of the North Road has many significant trespasses” and that
“some of the neighbors . . . feel very strongly that the Marble Company has no ownership of this section and that
they have full title to it.” The record shows that the owners north of North Road are not parties to this case.


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summary judgment stage. Because of the factual disputes discussed above, the defendants’

motion for summary judgment must be denied.4

                                                      ORDER

         Defendants’ Motion for Summary Judgment (Adverse Possession) (MPR #3), filed August

17, 2011, is denied.


                  Dated at Bennington, Vermont this 1st day of December, 2011.



                                                                        ______________________________
                                                                        Katherine A. Hayes
                                                                        Superior Court Judge




4
  Because there is a factual dispute as to the defendants’ claims of adverse possession, the court need not reach
the plaintiff’s argument that adverse possession of the property is barred under 5 V.S.A. § 3425, because the
plaintiff’s predecessor in title was a railroad company. The court also does not address the issue of laches, for the
same reason.


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