Editor’s note: This piece from the SCOV Law Blog is by SCOV Law editor Andrew Delaney.
Granville v. Loprete, 2017 VT 101
[A]ncient roads can haunt you.
The Town of Granville put together an Ancient Roads Committee and a process for identifying said ye olde wagon-paths. In 2009, the committee made some recommendations and added roads to the town highway map after notice and several public hearings. (There’s an Ancient Roads Act that gave all towns until mid-2015 to get these ancient roads on town highway maps; see subsection (c) of [this statute for more information.)
One of those identified wagon paths in Granville went through Mr. Loprete’s property. Mr. Loprete decided that he’d block off the road with a storage container. The Selectboard asked him to remove the storage container. Mr. Loprete was not interested.
So the Town sued for declaratory judgment, asking the court to declare that the road was a proper road dating back to 1850 — and that by implication Mr. Loprete couldn’t use the road for his storage-container-placing activities. In order to be a proper road, under the applicable 19th-century law, there had to be (1) an official recorded survey; (2) a formal act by the selectboard; and (3) a certificate of opening.
The Town then moved for summary judgment, arguing that the Selectboard took official action and created and recorded a survey — ye olde “two out of three ain’t bad” argument. The court denied summary judgment because there was no certificate of opening to be found.
The parties later agreed that the court could decide this question based on undisputed facts — in other words, that no certificate of opening was going to be produced.
Mr. Loprete said, more or less, “No certificate, no road. Game over.”
The Town said, “Nuh-uh. There’s this statute that says the lack of certificate alone doesn’t mean a road isn’t public. And we can make the showing if we need to.”
The court rejected the Town’s argument. It reasoned that even though a certificate might not be 100 percent required, the Town still has to show authority and the certificate is pretty good evidence of that. The Town produced an affidavit from the town clerk saying — and I’m paraphrasing here as I often do — “I ain’t never seen no certificate of completion and if any ever existed they prob’ly got lost because our recordkeeping practices were crazy up until the ’60s.”
The current chair of the town’s Selectboard and former chair of the town’s Ancient Roads Committee authored the second affidavit. He said he did a lot of research, and while he saw plenty of stuff relating to laying out and establishing roads, he only saw three of these certificates — all for road status changes, not establishment of new roads. His opinion was that because the Selectboard appeared to know the law and follow it carefully when establishing roads, the certificates must’ve been bound together somewhere and lost or destroyed.
That was enough for the court. It concluded that the Town’s circumstantial evidence and explanations were enough to find that a certificate of opening was in fact created and recorded, but had since been lost or destroyed. Thus the court found for the Town that the road was properly established and granted summary judgment to the Town.
That brings us to the SCOV.
Mr. Loprete argues that the Town was required — and failed — to produce sufficient evidence that the Town certified the road as open for public travel in 1850. Basically, Mr. Loprete said, “Look, they’re just making up a narrative that suits the Town’s purposes! They need a certificate and they haven’t given a good enough explanation why they can’t produce one!”
We begin with the summary judgment standard. If you don’t know it by now, you need to read this blog more. We’ve been through it hundreds of times. I’m just going to copy and paste: “Summary judgment is appropriate ‘if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.’” Here, SCOV concludes that the Town neither needed to produce a certificate of opening, nor prove that it once existed and now can’t be located. So SCOV affirms on alternate grounds.
SCOV begins by noting that roads have to be established consistently with the statute, and that the you-don’t-necessarily-need-a-certificate statute modifies that requirement. The way SCOV sees it, a road can be deemed properly laid out without a certificate of completion. That’s what happened here. SCOV rejects Mr. Loprete’s argument that a certificate of completion — or its unavailability through loss or destruction — is a required element of road establishment and concludes that the Town met its burden of proof and that it was entitled to summary judgment.
So that’s it. Even the ghost of a road can come back to haunt you, with or without a certificate of merit.
