Town entitled to summary judgment that ancient road is a public road, even though there is no certificate of opening.

Town of Granville  v. Loprete, 2017 VT 101 [filed October 20, 2017)

SKOGLUND, J. Defendant appeals from the court’s summary judgment decision in plaintiffs’ favor in this ancient road case. He argues that the undisputed facts do not support the court’s conclusion that Sabin Homestead Road is an existing town highway and public road. We affirm.

The law in effect at the time of the road’s creation “provided three legal requirements for the creation of a road: (1) an official survey to be recorded in the town clerk’s office; (2) a formal act by the selectboard; and (3) a certificate of opening.” Kirkland v. Kolodziej, 2015 VT 90, ¶ 19, 199 Vt. 606, 128 A.3d 407 (citing Laws of Vermont, 1824) (additional citation omitted).

The court first denied summary judgment based on the Town’s failure to demonstrate that it met the third requirement: that in connection with the creation of the road, the town had filed a certificate of opening. The court later ruled that the Town’s circumstantial evidence, along with the explanations provided by the Town’s affiants for the inability to locate an actual certificate of opening in the town records, supported a finding that a certificate of opening was in fact created and recorded, but had since been lost or destroyed. It thus determined that the road had been properly created and granted summary judgment to the Town.

We affirm the trial court’s decision on alternate grounds.

Section 717(a) now expressly provides that “[t]he lack of a certificate of completion of a highway shall not alone constitute conclusive evidence that a highway is not public.” Section 717(a) makes clear that the absence of a certificate-of- completion is not fatal to the Town’s claim. Pursuant to 19 V.S.A. § 717(a), the Town was not required to provide a certificate-of-opening, nor to prove that it once existed and cannot now be located. We conclude that the Town met its burden of proof, and that it was entitled to summary judgment in its favor.