WEST PAWLET — A dispute over a contested right of way could compel owners of a small dairy farm to move.
Laurie and Daniel Brooks own the 28-acre Wayward Goose Farm, where they live and milk 15 Jersey cows using organic practices.
The Brookses send milk to cheesemakers and creameries around Vermont and New York, and also sell those products at the farm’s roadside stand, along with other local produce and products. They rely on the income from the farm, along with commissions from Laurie’s work as an artist.
When they bought the land in 2011, the Brookses acknowledged that a right of way ran through it, starting at Route 153 and eventually leading to a separate farm field, split from their own land decades ago.
In 2003, before the Brookses moved in, the Lewis family, who operate the nearby LewisHolm Valley Farm, bought the adjacent farm field. It’s separated from the Brooks property by the Indian River and a rail trail, open for public recreation, that the state owns.
The Lewises understood, upon purchasing the field, that they could use the right of way through the neighboring property — now the Brookses’ — to access it. But land records indicate a caveat: A bridge over the Indian River had collapsed.
“Grantee hereby accepts legal access conveyed by Grantor herein with the understanding that the bridge crossing the Indian River no longer exists,” the deed to the Lewis’s farm field, quoted in a court complaint, reads.
But recently, when workers from the Vermont Agency of Transportation appeared on the riverbanks to rebuild the bridge — which connects land owned by the state to land owned by the Lewises over the Indian River — the Brookses realized they had a problem.
The Lewises plan to sell the field to new farmers, which has prompted an interest in the right of way. Otherwise, it hasn’t been used for 17 years, court documents say.
An official with VTrans told VTDigger the new bridge will be nearly identical to the previous structure, but with steel supports instead of timber ones. Though the official said the weight-bearing load will be close to the previous bridge, the Brookses worry it will be able to hold heavy machinery the first bridge couldn’t.
The Lewises plan to sell the field to farmers from New York who have used the parcel in the several years, reaching it through a neighbor’s property, the Brookses say. That access is no longer available to them, which prompted the search for another way in.
The Brookses have seen the farmers’ equipment and have watched as they’ve used the land in recent years. They understand, should the sale go through, that the new owners will likely drive farm machinery carrying manure, and possibly chemicals such as pesticides, through their farm. They described seeing more than half a dozen large trucks during harvesting season.
“And that’s just harvesting,” Laurie said. “That’s not spraying or planting.”
A court complaint filed by the Brookses’ attorney says New York State considers the potential buyers’ farm to be a Concentrated Animal Feeding Operation, or CAFO. The same complaint says the “likely use” of the farm field is a “manure dump site.”
Vague language in the deed details the right of way’s path. It crosses the river and the rail trail, “thence in a generally easterly direction, along existing wheel tracks.”
The Brookses have struggled to identify its exact pathway, given that the wheel tracks have faded.
“Nobody really knows where the problematic right of way is,” Laurie said.
They guess the farm vehicles would carry manure and other materials past their milking cows, several hundred feet from their home, through the buffer zone of a Class II wetland and over the Indian River.
The Brookses are concerned about manure from a farm considered to be a CAFO. Slurry from large farms often includes both fecal waste and urine, and sometimes includes bedding and compost. They worry about pathogens it could carry — particularly Johnes disease, a contagious, chronic and usually fatal infection found in many large dairy herds.
The Brookses already follow a biosecurity plan to avoid exposing their animals to pathogens. Anyone visiting from another farm is asked to wear special boot coverings, and the driveway where they receive deliveries — sometimes from drivers who have visited other farms — is separated from the pasture.
They fear the proposed use of the right of way would jeopardize their business.
Owners of the LewisHolm Valley Farm offered the land to the Brookses, but they couldn’t afford what the New York farm could pay. They said the price greatly exceeds market value.
Appeal to the Land Trust
The Brookses see their situation as part of a larger problem in which small, organic dairy farmers are outbid by larger farms whose practices aren’t always sustainable.
“We offered them the appraised value, which was $1,700 an acre, and they said they’re going to go in a different direction because they couldn’t leave that much money on the table,” Daniel said.
The field is conserved with the Vermont Land Trust, which has the right of first refusal on the property.
The Brookses have asked the Land Trust whether it would consider intervening, making a case that they could offer environmental stewardship of the land, which they feel is particularly important because it’s bordered by the Indian River.
“The way the Land Trust markets itself, with sustainable and environmental practices,” Daniel said, “if they choose to do nothing in a case like this, then they’re really tipping the scales in favor of a big dairy farm that’s not as environmentally conscious as somebody like us.”
Abby White, spokesperson for the Land Trust, said the organization doesn’t yet have the information it needs to make a decision.
“We care deeply about the economic viability of agriculture in Vermont and environmental stewardship,” she wrote. “In this instance, we have a narrow legal right to exercise an option to purchase the land at its agricultural value. That process has not yet been triggered. Until we are presented with a legal contract and proposed land use, we won’t have enough information to evaluate this possible sale.”
Legacy of the wayward goose
Daniel and Laurie found their farm because of an African gray goose named Oscar.
At the time, they worked on Daniel’s parents’ dairy farm in New York, and had been looking for land where they could milk a herd of dairy cows.
Their daughter, Margot, was working at Consider Bardwell, a high-end cheese manufacturer in West Pawlet, when a blind goose wandered into her vicinity. She learned the goose, Oscar, belonged next door, brought him back, and learned the owner of Oscar’s farm was looking to sell.
The Brookses purchased the farm almost exactly 10 years ago, in January 2011. They named their business The Wayward Goose Farm, for Oscar, and sold milk to Consider Bardwell until the manufacturer had a listeria scare in 2019. Since then, they’ve sold their milk to other creameries around the state. Margot makes some into cheese at her creamery in the Adirondacks.
Those products are sold in a brightly-colored farmstand at the edge of Route 153, along with produce from other nearby farmers.
“After Covid hit and the local veggie producers lost access to their markets, we had access to their vegetables, so we were able to stock them in our farm store,” Laurie said.
In 2013, the Vermont Sustainable Agriculture Council named Wayward Goose Farm the Farm of the Year. The Brookses pay close attention to the treatment of their small herd — walking along the pasture in early January, cows ran to the fence as Daniel and Laurie approached.
“This barn was about ready to fall down when we bought this place,” Daniel said, gesturing to a newly renovated structure. “We had to put a new gable on, and a new floor in.”
The Brooks say, amid the litigation with the Lewises over the right of way, they’ve been losing sleep.
“We’re not going to just let it go,” Daniel said. “I’m not sure they know how much this means for us and our farm.”
Up to the courts
The question about the legitimacy of the right of way is now in the hands of Rutland County Superior Court.
“We’ve been trying for two years to resolve this without having to go to court,” Laurie said.
But in December, after workers with the Agency of Transportation appeared to begin rebuilding the bridge, they decided to file an official complaint against the LewisHolm Valley Farm through their attorney, Merrill Bent of Woolmington, Campbell, Bent & Stasny. It asks the court to determine that the right of way “has been abandoned.”
They also hope the court will find that “trucks carrying waste and/or chemicals from an industrial farm operation would overburden the right of way.”
“We don’t relish the idea of suing our neighbors,” Daniel said. “We just feel very cornered. We would much rather the money we’re spending go toward buying the land instead of suing about the right of way.”
This week, the owners of LewisHolm Valley Farm submitted a counter-petition through their attorney, John Thrasher of Ceglowski & Thrasher, and demanded a jury trial.
In the counter-complaint, Thrasher argues that “an easement acquired by deed cannot be extinguished from non-use alone.”
Because the field has always been used for agricultural purposes, Thrasher also asks the court to deem that the “the right of way may be used for any ‘agricultural, forestry, educational, non-commercial, non-commercial recreation and open space purpose.’”
He points to the Brookses lack of an organic certification — though they use organic practices, certification requires that an organic farmer sell any animal after administering antibiotics in lifesaving situations, and the Brookses didn’t want to have to sell, should they use medication.
Because of that lack of certification, and citing the National Organic Program, which allows conventional manure to be used even on farms that are certified organic, Thrasher argues that carrying manure through the right of way would not pose a threat to the Brookses’ farming operations.
The Brookses don’t agree. If the sale goes through and the new farmers can establish a right of way, they’ll say they’ll move.
“It would be catastrophic for us,” Laurie said. “We’re sure, we would be done.”
