Real Property. Law of Cadavers. Ancient deed “excepted” a cemetery plot in fee simple, and did not merely “reserve” an easement. New owner had no right to bury parents in old cemetary.

 In re Guite, 2011 VT 58 (Dooley, J.)  

This case concerns the use of a hilltop cemetery on a farm in Hartland, Vermont.  The petitioner claims that the cemetery plot is owned by heirs of the Aldrich family, who settled the property as a farm in approximately 1775 and remained there until selling the farm in 1853.  Respondent purchased the farm property in 1950 and buried the cremated remains of his parents in the hilltop cemetery.  Respondent claims that the Aldrich family reserved only an easement in the cemetery plot, so that he could use it to bury his parents and the remains cannot be moved.  The trial court adopted respondent’s theory and denied the petition.  We conclude that petitioner’s theory is correct and reverse.

In Harding, we ruled that where we could not ascertain the true intent of the parties to the original deed, and in the absence of a “clearer expression of intent,” we would rely upon the common law of family gravesites, which creates an easement.  2005 VT 24, ¶ 18.  The deed in this case contains the necessary clearer expression of intent.  

The 1853 deed in this case has excepted from the conveyance a fee interest in a particular plot of land, rather than a burial easement as recognized at common law.  The plot is excepted “out of the above described premises.”  The terms “excepting” and “exception” are generally used to withhold from a grant or conveyance something that would otherwise pass in the grant.   This technical meaning of the words “excepting” and “exception” dates back to the era of the 1853 deed. see P. Jackson, The Law of Cadavers 219 (1936) (distinguishing “exception” from “reservation” and noting that “the scrivener’s choice of terms is given appropriate but not conclusive weight”). Importantly, the grantor retained an ascertainable tract of land, with the burial plot description being used to locate where the tract is to be found.

Accordingly, we find that the 1853 deed excepted from its grant the 41’ by 27’ burial plot, and the plot is owned in fee simple by the heirs of the Aldrich family.  Thus, it was never owned by the King family, and they had no right to bury the cremated remains in it.  

Trusts and estates. The amended POA statute, enacted in 2002, invalidates gift transactions made after its effective date, even though they would otherwise have been valid under the statute at the time the POA was signed

In re Estate of Lovell, 2011 VT 61 (Reiber, C.J. )

Defendants Charles and Hubert Lovell appeal a grant of summary judgment to plaintiff, Duane Amsden, in which the trial court found that Charles Lovell could not, pursuant to his powers as his father’s attorney-in-fact, transfer title of his father’s farm to himself and his brother, Hubert Lovell, where the power of attorney failed to explicitly grant the power to make such a gift.  We affirm.

Here, unlike Kurrelmeyer, 2006 VT 19, ¶ 2 , the property transfer occurred after the effective date of the amended POA statute.  Under 14 V.S.A. § 3515(b): “[a]ny term of a power of attorney, executed after the effective date of [the POA statute] . . . which is otherwise inconsistent with, the provisions of this subchapter, shall be void and unenforceable.” The POA granting Charles Lovell authority to make transfers in his father’s stead was created prior to the effective date of the amended POA statute; however, he exercised the term providing him power of transfer after the effective date.  The term providing the power to transfer did not give him the explicit power to make gifts, as required by the amended POA statute, and thus an attempt to exercise authority pursuant to that term after the statute’s effective date was void and unenforceable.

Property tax exemption to private nonprofit secondary “public” school.

Mountain View Community School, Inc. v. City of Rutland, 2011 VT 65 (Burgess, J.)   

Mountain View Community School, Inc. appeals from a trial  court order rejecting its request for a property tax exemption for “lands owned or leased by colleges, academies or other public schools” under 32 V.S.A. § 3802(4).  Mountain View contends the court misinterpreted the law in denying the requested exemption.  We agree and reverse.

The trial court mistakenly conflated the “public use” and “public school” exemptions. While the school claimed exemption as a “college, academy, or other public school” under 32 V.S.A. § 3802(4), the City  asserted that Mountain View failed to meet the test for determining whether property is dedicated to a “public use” under the separate provision of § 3802(4) exempting real estate “sequestered or used for public, pious or charitable uses.”  The “various clauses of § 3802(4) are disjunctive, not conjunctive,” and Mountain View was not required to satisfy the criteria for the “public, pious or charitable” use exemption in seeking an exemption for land owned by a “college, academy or other public school.”

Although cited by neither the parties nor the trial court below, our decision in   Willard v. Pike, 59 Vt. 202, 9 A. 907 (1886), nearly 125 years ago, remains the seminal and controlling authority governing the exemption for property “owned or leased by colleges, academies or other public schools.”  In Willard the court held St. Johnsbury Academy qualifies as a public school within the meaning of the statutory exemption. The court reasoned  that   “public” in the phrase “public school” was not limited to the sense of being open to all students at public expense, but includes non-profit tuition-based schools that are “public”  in the same sense in which nonprofit colleges and academies are “public.”  The court has  in the last 125 years applied this broad definition of a public school to a variety of selective, nonprofit private schools, if the specific property in question was actually used for educational purposes.  Mountain view easly meets this test.

Reversed.

Zoning. Plain meaning. Use of the "nearest available dictionary." The virgule (“/”) is disjunctive. . A self storage facility is not permitted as “retail sales/rentals” because it is not “retail.”

 In re Tyler Self-Storage Unit Permits,  2011 VT 66 (Burgess, J.)

A group of neighbors in the Town of Dorset appeal from an Environmental Court decision granting Bradford Tyler’s application for a zoning permit for the construction of a self-storage facility in the Dorset Village Commercial District.  Appellants contend that the court erred in determining the rental storage units to be an authorized land use within the applicable Dorset zoning district.  The Environmental Court granted applicant’s proposed use as a permissible  “retail rental.”  Although the court appropriately concluded that the phrase “retail sales/rentals” translates to “retail sales or retail rentals,” we hold that the plain language of the Bylaws' definitiion of "retail" precludes applicant’s self-storage facility.

The first issue in the  this case is whether the word "retail" in the phrase “retail sales/rentals” limits "rentals." The most basic tenet of textual interpretation is that words otherwise undefined are ordinarily defined by reference to the nearest available dictionary.  2A N. Singer, Sutherland Statutory Construction § 47:7, at 303-04 (7th ed. 2007).  The reliance of the regulations on “any readily available dictionary” reflects common sense and does not lead to unfettered discretion on the part of zoning administratorss -- absent an actual issue of competing and confusing definitions The virgule (“/”) is used “to separate alternatives,” American Heritage Dictionary of the English Language 1922 (4th ed. 2006), and is reasonably understood to be disjunctive, another expression of the word “or.”

“Retail,” a specific description, is followed by “sales” and “rentals,” words of more general import.  Thus, the phrase “retail sales/rentals” translates to “retail sales or retail rentals."

The trial court mistakenly concluded that so long as a facility rents to individuals, rather than to industrial customers or on a wholesale basis, the facility is permissible. The term “retail” is defined in the ordinance to mean “a shop or store for the sale of goods, commodities, products or services directly to the consumer, as opposed to wholesale.”  The Bylaws’ drafters intended “retail sales/rentals” to include only small-scale commercial establishments trading in services or in goods, for sale and for rent, as opposed to renting storage space as applicant proposes.  A self-storage facility is not a shop or store, nor does it offer goods or services.

Reversed.