SCOVT reverses summary judgment, rejects Restatement (Third) of Property, and holds deeded right of way for “ingress and egress” does not allow access to install underground utilities.

Gladchun v. Eramo, 2023 VT 5


CARROLL, J. Jeffrey and Alyssa Gladchun appeal a decision granting summary judgment to neighboring landowners, Michael and Diane Eramo, and the Eramos' lessee, New Cingular Wireless, PCS, d/b/a AT&T (AT&T). The civil division concluded that a deed granting a right-of-way for "ingress and egress" to the Eramos was unambiguous and did not limit AT&T from installing utility lines under the right-of-way to service a planned communications tower. We agree that the deed is unambiguous as to the right-of-way. However, we disagree that it expresses more than the plain, ordinary meaning of "ingress and egress," which does not include installing underground utilities. Accordingly, we reverse and remand.

In March 2021, the Eramos granted AT&T an option to lease a portion of Lot 10 to construct a 195-foot-high communications tower. Lot 10 is benefitted by a thirty-foot right-of-way that is the only access to Lot 10. The right-of-way is described in the deed as “for the purpose of ingress and egress to and from the conveyed premises.”

On summary judgment the only question was whether the deed's express terms permitted underground utility lines. The trial court cited VTRE Investments, LLC v. MontChilly, Inc. for the proposition that "[w]here the intent is clearly to create a right of ingress and egress, but the language of the deed is general, 'the dominant estate "is entitled to a convenient, reasonable, and accessible way.'" 2020 VT 77, ¶ 23 (quoting Patch v. Baird, 140 Vt. 60, 66 (1981). 

Using this framework, the court relied on a comment to § 4.10 of the Restatement (Third) of Property to determine installation of underground utilities was a reasonable use of the right-of-way because normal advances in technology can permissibly increase "the manner, frequency, and intensity" of uses over time, citing previous cases of this Court for that proposition.

On appeal, the Gladchuns' primary argument is that the deed term unambiguously limits the use to the plain meaning of "ingress and egress," which does not include installing underground utilities. We agree conclude that the term is unambiguous, and the plain meaning of "ingress and egress" does not permit AT&T's current proposal.

The plain meaning of the words ingress and egress convey a right for defendants to enter and leave Lot 10 using the right-of-way. Nothing we can discern in the definitions of either word individually, or in combination, denote a right to install underground utilities. Where a deed unambiguously limits and defines a right-of-way, as here, our inquiry ends, and we enforce the deed as written. Accordingly, we need not consider what constitutes a "convenient, reasonable, and accessible way", nor do we need to consider what uses may constitute an overburden of the easement.

Defendants counter that this Court should adopt comment d to § 4.10 of the Restatement (Third) of Property (2000), which states that:

O, the owner of Blackacre, granted an easement to Able, the owner of Whiteacre, for `ingress and egress' from Whiteacre to the public street abutting Blackacre. The deed did not specify whether utility lines could be placed in the easement. Unless the facts or circumstances suggest that the parties intended otherwise, it would be proper to define the purpose of the easement generally to include access for anything that could conveniently be transported through the easement corridor and that would normally be used in connection with property situated like Whiteacre, including utility services.

We do not follow the Restatements if there "is a strong rationale to the contrary." Langlois v. Town of Proctor.  2014 Vt 130, ¶ 34,There are strong policy rationales to the contrary here.

First, the comment runs contrary to our long-standing rule for interpreting deeds in Vermont, which is to enforce the intent of the original parties, using whenever possible the plain, ordinary, and popular meaning of the language contained in the document.

Second, the Vermont Constitution vigorously protects private-property ownership, and the present character of the state is indicative of this feature. See, e.g., Vt. Const. ch. I, art. 1 ("That all persons are born equally free and independent, and have certain natural, inherent, and unalienable rights, amongst which are the enjoying and defending life and liberty, acquiring, possessing and protecting property, and pursuing and obtaining happiness and safety . . . .");[1] Since its founding, the people of the state have expressed a robust commitment to private-property ownership. See generally State v. Kirchoff, 156 Vt. 1, 14-19 (1991) (Springer, Dist. J. (Ret.), Specially Assigned,concurring) (explaining centrality of property rights in early Vermont and noting that "[p]rotection of citizens' rights to security in their land was a key motivating force in creating the Vermont Constitution"). This Court's long-standing rules of deed interpretation reflect this commitment.

In short, the comment has little relevance to Vermont given Vermont's unique character and history. While a policy may exist in other jurisdictions favoring the implication of a right to install utility lines where an otherwise unambiguous express easement is silent on the issue, it does not fit well in Vermont.

Because the civil division did not rule on defendants' alternative argument that Lot 10 is benefitted by an easement by necessity, we remand to the civil division to resolve that question.

Reversed.

How cited


 SCOVT note: Many states have constitutional provisions very similar to Article 1. Compare Vt. Const. ch. I, art. 1 with Cal. Const. art. 1, § 1 ("All people are by nature free and independent and have certain inalienable rights. Among these are enjoying and defending life and liberty . . . and pursuing and obtaining safety, happiness and privacy."); Mass. Const. pt. 1, art. 1 ("All people are born free and equal and have certain natural, essential and unalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties . . . [and] that of seeking and obtaining their safety and happiness."); Nev. Const. art. 1, § 1 ("All men are by Nature free and equal and have certain inalienable rights among which are those of enjoying and defending life and liberty . . . and obtaining safety and happiness[.]"); Va. Const. art. 1, § 1 ("That all men are by nature equally free and independent and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, . . . and pursuing and obtaining happiness and safety.").

The Court has said that although "the text [of Article 1] includes the right to possess and protect property,” that right is listed among other "natural, inherent, and unalienable rights" merely to flesh out “philosophical truisms.” Shields v. Gerhart, 163 Vt. 219, 234-35 (1995) (holding Article 1 is not self-executing.)

The law of easements by necessity is summarized in a case recognizing an implied easement by necessity for water and sewer lines where development the residential property was is impossible without access to utilities:

It is well settled in Vermont and elsewhere, however, that an implied easement by necessity may arise by operation of law where it is essential to the "reasonable enjoyment of [the] land," Berge v. State, 2006 VT 116, ¶ 12, 181 Vt. 1, 915 A.2d 189, and that this principle incorporates access to essential utilities. See McElroy v. McLeay, 71 Vt. 396, 398-99, 45 A. 898, 899 (1899) (recognizing implied easement for access to public sewer line as "within the rule that everything . . . that is essential to the beneficial use and enjoyment of the property designated in the grant is . . . to be considered as passing by the grant"); see also Brown v. Miller, 140 Idaho 439, 95 P.3d 57, 61 (2004) (holding that easement by necessity "reasonably includes utilities"); Smith v. Heissinger, 319 Ill.App.3d 150, 253 Ill.Dec. 543, 745 N.E.2d 666, 671-72 (2001) (rejecting assertion that easement by necessity is limited to ingress and egress, and holding that it may exist for access to power, telephone, water, and sewer lines); Morrell v. Rice, 622 A.2d 1156, 1160 (Me.1993) ("An easement created by necessity can include not only the right of entry and egress, but also the right to make use of the easement for installation of utilities, essential for most uses to which property may reasonably be put in these times."); Huggins v. Wright, 774 So.2d 408, 412 (Miss.2000) (affirming grant of "easement of necessity . . . for ingress/egress and for utilities"); see generally 1 Restatement (Third) of Prop.: Servitudes § 2.15 cmt. d (2000) (observing that "increasing dependence" on access to utilities for reasonable enjoyment of property supports recognition of easement by necessity).

Regan v. Pomerleau. 2014 VT 99 ¶ 34.

.