The Road Often Travelled is Not Necessarily Public

In Bruce Kirkland and Gordon Kirkland v. James Kolodziej and Barbara Kolodziej, 2015 VT 90 (July 17, 2015), the Vermont Supreme Court reviewed three possible methods for establishing a public road in Vermont (statutory condemnation; dedication and acceptance; and prescriptive easement) in finding that that the trial court erred in concluding a segment of road had been established as a public highway.

Issue: Defendants appealed a decision granting declaratory judgment in favor of Plaintiffs on their action to quiet title in a segment of road traversing Defendants’ land and providing access to Plaintiffs’ land that found the segment of road had been established as a public road.

Holding: The Court reversed, holding that the Plaintiffs had failed to prove the segment of road at issue was established as a public highway. With regard to the trial court’s theory of statutory condemnation, the Court found that Plaintiffs only presented circumstantial evidence and failed to show any compliance with the statutory requirements in effect at the time the segment of road was laid out, or the existence of any record of statutory condemnation thereafter. With regard to the trial court’s theory of dedication and acceptance, the Court found that the trial court erroneously concluded that the segment of road was established as a public road through long acquiescence to public use, finding that the evidence did not prove an affirmative act of acceptance by the town. With regard to the trial court’s theory of prescriptive easement, the Court found that, under Vermont law, no nonpublic road can become public through a prescriptive easement.