December 2004 - #12. Breaking the Curse of Vermont's Phantom Roads*.


Vermont Bar Journal


December 2004 - #12.

Breaking the Curse of Vermont's Phantom Roads*

Vermont Bar Journal - December 2004

Breaking the Curse of Vermont's Phantom Roads*

Sean D. Clarkson

Whether diverging in a yellow wood or somewhere in the sands of time, in few places do roads less traveled make as much difference as in the State of Vermont.1 In many Vermont towns, roads laid out by selectboards long past either have never been built or have vanished from memory and use over the years.2 These "phantom roads,"3 many of which lack corporeal form, still bear form, force, and spirit given them by law,4 and now haunt Vermont towns and private property owners.

The curse of phantom roads is highlighted by the specific instances within the Towns of Barnard and Chittenden examined in this article. There are innumerable private property owners along the paths of phantom roads that might be similarly affected. For example, twenty-six phantom roads are currently being researched in the Town of Chittenden. There are 254 other municipalities in the State of Vermont, likely with inventories of phantom roads and hosts of private property owners that will be affected should these roads themselves rise from the grave. The lack of a clearly identifiable remedy to clear titles of clouds caused by these roads presents itself as a problem of immeasurable size for Vermont property owners. This article concludes with a proposed solution to exorcise phantom roads from the hills, and the title records, of Vermont.

The Haunting Begins: Current Phantom Roads Cases in Two Vermont Towns

The Selectboards of the Town of Barnard5 and the Town of Chittenden6 sought to relocate long-forgotten roads ostensibly to provide recreational trails for town residents and to preserve the town's history.7 Raising these phantom roads from their deed book tombs cast a cloud upon the titles to countless parcels of land,8 and over the private property rights of all Vermonters, creating nightmares for individual property owners.

For Mrs. Kathy Peterson, the nightmares are all too real. In 1997, Mrs. Peterson purchased property totaling just nine-tenths of an acre9 that she presumed to be free of any encumbrances. Trouble came for Mrs. Peterson when she planned to build an addition, plans that were scuttled by the Town of Chittenden in 2003. 10 In the intervening years, and based upon ancient surveys, deed book records, and plausible, though not absolute, physical evidence on the ground, the Right-of-Way Committee of the Selectboard of the Town of Chittenden had concluded that the house owned and constructed by Peterson sits on the phantom Green Road. The actions of the Selectboard have likely rendered unmarketable the Peterson's title to their property,11 as well as other properties in the area of the phantom Green Road. The research upon which the Town's determination was based is not a survey "pinpointing the location of the Green Road," as the Chittenden Selectboard has acknowledged.12 Regardless, the Chittenden Selectboard is confident enough in this research to determine that the Peterson house sits directly in the path of the Green Road, and that at no point along the more than seven mile path of this phantom road is there any deviation great enough to save Peterson from this curse.13

A similar situation arose for Stanley and Lynn Spencer and the prospective purchaser of their property, David Muller, when the Town of Barnard, Vermont, launched a project "to research and map town roads, as town maps do not completely and accurately depict all town roads of record."14 In 2002, based upon that research, the Town of Barnard published a map of town roads that showed, for the first time, an unnumbered road beginning at the end of Town Highway 14 on the Spencer/Muller property and running south and east, intersecting with the Royalton Turnpike, Town Highway 2. Until the publication of this map, all public maps for the Town of Barnard showed that Town Highway 14 came to a dead-end at the property owned by the Spencers and under contract to Mr. Muller. However, with the publication of the 2002 map, the Town of Barnard asserted a right-of-way across the property dating back to 1784.15 This action rendered the title to the Spencer property unmarketable because the exact location of the alleged road was unclear.

Of note, the researcher hired by both the Town of Barnard and the Town of Chittenden does not have a surveyor's license.16 The State of Vermont has deemed that "[i]n order to safeguard property and the public welfare, the practice of land surveying in this state is declared to be subject to regulation."17 Vermont requires licensure of any person engaged in the practice of land survey.18 Unlicensed persons are barred from practicing land surveying, or engaging in any aspect of land surveying or in the preparation of maps "intended to indicate the legally authoritative location or demarcation of property boundaries or extent where legal rights or interests in any tract of land are or may be affected."19

The Impact of the Curse: Who and What Is Haunted and Harmed by Phantom Roads

To understand the bases of municipal assertions of right to phantom roads and to private property rights that these assertions threaten, we must look to the historical, philosophical, and theoretical origins of both private property law and the laws that permit a sovereign to assert claim to properties within its realm.

An Overview of the Historical Bases of Private Property Rights

"There is nothing which so generally strikes the imagination, and engages the affections of mankind, as the right of property."20 The right to be secure in one's private property is one of the cornerstones of Anglo-European of law and of liberty21 and was a primary source of the revolt against King John and the drafting of the Magna Carta.

American law incorporated by reference the early religious foundations for private property rights, and imported both explicitly and implicitly the mandates of the Magna Carta. The Declaration of Independence cites no less than six invasions by the sovereign upon the property rights of individuals as among the grounds for rebellion.22 The belief in the sanctity of private property rights spanned the breadth of the Founders' political ideologies and is represented in each Constitution of the original thirteen states,23 and in the Constitution of each state admitted into the Union thereafter.24 At least three separate Amendments within the Bill of Rights expressly state the need of citizens to be secure in their property,25 a Constitutional guarantee that the courts have long attributed to the fundamental beliefs of the Framers.26

An Overview of Eminent Domain and Control of Roads by Sovereign Entities

The right to private, individual of control and dominion over property has never been absolute.27 Even the most noted theorists of private property rights have dealt with juxtapositions of the rights of individuals to property and rights to the same property by the public and the sovereign.28 To some degree, the public retains an interest to certain "sticks in the bundle" of private property rights, and a sovereign can retain or obtain an interest in the property of its subject,29 though recently such acquisitions have required "just compensation."30

Throughout history, sovereign entities have held the power of eminent domain: the right to retain or assert an interest in or control over private property.31 The use of eminent domain has been particularly evident when a sovereign seeks to create a benefit for the public that otherwise may go undeveloped, such as the creation of a public highway. 32 Based upon principles of federalism, courts have traditionally only intervened in the exercise of this power in extraordinary circumstances, and then to play only such a role as is statutorily established within a certain jurisdiction.33 Among other factors, it is this deference to local governments in issues pertaining to roads, the reluctance of Vermont courts to interfere with such municipal decisions, and gaps within Vermont statutory and common law that have created the curse of phantom roads.

Crafting the Curse: The Laws of Life, Death, and After-Life for Vermont Highways

In the State of Vermont, statutes dictate how state and municipal roads are laid out, altered, reclassified, or discontinued. Statutory provisions specifically define acts that must be undertaken in order to lay out a road, which may be accomplished either by an act of the local selectboard or by petition of local residents, including petitions, notice and public hearings, surveys, and recording of decisions and necessary papers.34 In addition, Vermont common law provides an avenue for the creation of a public highway outside of the statutory provisions, by formal dedication by a landowner of a road to a town; acceptance of that road by the town may make such a road a public highway.35 Dedication can be express or implied, without any written documentation, and can be asserted and proven by a host of actions, or inactions, by the original landowner. However, dedication must be joined with acceptance by the town in order to complete the transfer of private land into public highway usage. Lacking both dedication and acceptance, there is no public highway.36

Two interesting discrepancies arise from the common law requirements establishing public highways by dedication and acceptance. The first is that...

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