Public use of Ancient Road insufficient to prove it to be a public highway.

Kirkland v. Kolodziej, 2015 VT 90 [filed July 17, 2015]

DOOLEY, J. Defendants appeal a decision  granting declaratory judgment in favor of plaintiffs on plaintiffs’ action to quiet title in a road traversing defendants’ land and providing access to plaintiffs’ land. Following a bench trial, the court found that the road had been established formally as a public highway. We conclude that plaintiffs failed to demonstrate that the disputed western segment of Petty Road is a public highway, and reverse.

Petty Road, as laid out in 1821, was described as extending from “the road that leads from Stephen Dutton’s to Solomon Petty’s” to the Springfield town line. The dispute here centers on the western segment of Petty Road . The court acknowledged that “neither party has located a survey, or other recording of proceedings to lay out the road” but found “it likely that the western portion of the disputed road was laid out prior to 1821, and that the records of such official action were either never filed, misplaced, or lost. The trial court therefore concluded that Petty Road is a public highway and granted plaintiffs’ request for injunction requiring defendants to restore the road to its prior condition and refrain from impeding any public passage in the future.

We have identified three possible methods for establishing a public road in Vermont: (1) statutory condemnation; (2) dedication and acceptance; and (3) prescriptive easement. We conclude that Petty Road was not established as a public highway by statutory condemnation or common-law dedication and acceptance, and that as a matter of law it could not be established by prescriptive easement.

Statutory Condemnation. The law in effect when the eastern segment of Petty Road was laid out 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. We consistently have required proof of such records when considering whether the town undertook the proper statutory formalities in laying out a road. Circumstantial proof, based on public use of the road, that “quite conceivably” the records were lost, is insufficient. Statutory compliance cannot be proved unless the proponent introduces the necessary records as filed in the town office or proves that the records once existed and complied with the statute.

Dedication and Acceptance. Plaintiffs’ case fails the acceptance requirement. Public use alone, no matter how long, is insufficient to create a valid dedication and acceptance. Our case law consistently has required some evidence that the town has assumed the responsibility of maintenance and repair of the highway or otherwise has exercised control over the highway.There was no evidence that the town, as opposed to private landowners abutting the road, provided any improvements, maintenance, or repair. The evidence does not prove unequivocal intent to accept.

Prescriptive Easement. We conclude that the state of our law is that a nonpublic road cannot become public through a prescriptive easement, and we therefore cannot uphold the trial court’s decision based on the theory of prescriptive easement.