Marketable Record Title Act extinguishes, by definition, an easement by necessity over 40 years old

Gray v. Treder, 2018 VT 13 [filed 12/21/2018]


ROBINSON, J.This case centers around plaintiffs' landlocked ninety-acre parcel on Roxbury Mountain. Defendants appeal the trial court's decision following a contested hearing that the plaintiffs' parcel includes an appurtenant easement by necessity that crosses some of defendants' properties. They further contend that the trial court erred in holding that Vermont's Marketable Record Title Act has not extinguished that easement. We do not decide whether an easement by necessity arose in the first place because we conclude that even if it had, the Act would have extinguished it. Accordingly, we reverse.

The court ruled the Marketable Record Title Act did not extinguish the easement because, since it was created as a matter of law due to the effect of the 1948 recorded Brooks-Senor deed, it fell into an exception in the Act that exempts from extinguishment easements “granted, excepted, or reserved by a recorded instrument.” Id. § 604(a)(7).Defendants rely on this exception on appeal.

We conclude that even if an easement by necessity in favor of the Eaton Lot arose in 1948, because it has remained unrecorded, the Act has extinguished it. We base this conclusion primarily on the plain language of the Act and the inapplicability on its face of the extinguishment exception relied upon by plaintiffs. An implied easement by necessity is not among those interests excepted from extinguishment. Although an easement may survive pursuant to § 604(a)(7) if it was “granted, excepted, or reserved by a recorded instrument,” the claimed easement in this case was not granted, excepted, or reserved by such an instrument.

A way of necessity is not granted. It is “a fiction of law” that arises only in the absence of a deeded right of access to a landlocked parcel. An easement by necessity is deemed to arise when a property is divided in a way that cuts off one parcel from access to a public road. By definition, interests implied by operation of law, as easements by necessity are, do not fall within the statutory. Had the Legislature intended to include among the interests that are not extinguished by the Act interests that arise by operation of law in the absence of a deeded right, it would have said so. Based on the plain language of the statute, we conclude that plaintiffs’ claimed easement is not exempt from extinguishment by virtue of § 604(a)(7), and thus has not survived the operation of the Marketable Record Title Act.

The structure and purpose of the Act further bolster our analysis.The Act provides ample opportunity for people with claimed interests arising by operation of law to preserve their claims. The statute sets forth a mechanism for providing written notice in the land records, id. § 605, and provides that the claim is preserved only if the notice is filed within the forty-year period after the event giving rise to the claim. Id. § 603.

We conclude that neither the public policy against inaccessibility of land, nor the principle that statutory modifications to the common law must be clear, overcome the plain language of the statute.