Jsn v. Harwood
CourtVermont Superior Court
Date FiledNovember 2, 2026
Docket25-cv-5697
StatusUnknown
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Full Opinion
VERMONT SUPERIOR COURT CIVIL DIVISION
Washington Unit Case No. 25-CV-05697
65 State Street
Montpelier VT 05602
802-828-2091
www.vermontjudiciary.org
JSN, LLC v. Harwood Unified Union School District
ENTRY REGARDING MOTION
Title: Motion for Partial Summary Judgment (Motion: 1)
Filer: Christopher J. Smart
Filed Date: May 21, 2026
The motion is GRANTED IN PART and DENIED IN PART.
Plaintiff JSN, LLC asserts that its and Defendant Harwood Unified Union School
District’s respective deed histories leave it with a right of way (ROW) extending from Route 100
in Duxbury, across Harwood’s property, where it eventually provides access to JSN’s property.
The ROW is alleged to travel along the centerline of an existing driveway used by Harwood until
the driveway turns toward a parking lot. Where the driveway turns, the ROW is alleged to
continue forward in a straight line corresponding strictly with the centerline of the driveway until
it reaches JSN’s property. The implication in the record is that neither JSN nor any
predecessors-in-interest ever developed the ROW on the ground where it extends past the
driveway. JSN alleges that in 2025, Harwood installed a stormwater pond that obstructs and
prevents development of the ROW. Now it seeks partial summary judgment addressing the
declaratory claims establishing its ownership of and Harwood’s obstruction of the ROW and its
entitlement to injunctive relief.1
I. Procedural Standard
Summary judgment shall be granted when the moving party shows that there is no
genuine issue as to any material fact “and the movant is entitled to a judgment as a matter of
law.” V.R.C.P. 56(a). Although the Court gives the nonmoving party “the benefit of all
1 Technically, JSN seeks, in its partial summary judgment motion, an order “enjoining defendant to remove or
relocate” the obstruction. There is no motion for preliminary injunction. If it is so entitled, a final injunction in
some manner restoring JSN’s ability to use its ROW would be part of a final judgment. No such final injunction
would be entered during the interlocutory phase of this case. Additionally, JSN has other claims that are not
addressed in the pending motion, so the case will remain in an interlocutory phase following this decision.
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reasonable doubts and inferences in determining whether there is a genuine issue of material fact,
the nonmovant bears the burden of submitting credible documentary evidence or affidavits
sufficient to rebut the evidence of the moving party.” Ziniti v. New England Cent. R.R., Inc.,
2019 VT 9, ¶ 14, 209 Vt. 433 (quotation omitted).
II. Undisputed Facts
Both parties are represented by capable counsel. Harwood sought and was granted
several unopposed extensions of time to respond to JSN’s motion. Nevertheless, no opposition
ever was filed. The Court construes Harwood’s silence as general assent to JSN’s version of the
material facts.
The Court further deems the facts, to the extent well-supported, in JSN’s Rule 56(c)(1)
statement as undisputed pursuant to Rule 56(e)(2) due to Harwood’s failure to challenge them.
Additionally, counsel for JSN represents, and the Court accepts for purposes of this
decision, that Harwood never responded to its requests to admit. The subject matter of a request
for admission is treated as admitted unless the opposing party responds or objects within 30 days.
V.R.C.P. 36(a). “Any matter admitted under this rule is conclusively established unless the court
on motion permits withdrawal or amendment of the admission.” V.R.C.P. 36(b). No such
motion has been filed.
The basic undisputed facts are as follows. In 1996, the State conveyed to the Town of
Duxbury the land over which the ROW travels. That quitclaim deed reserved the ROW as
follows:
Grantor hereby reserves to itself, its successors and assigns a 50' wide right-of-
way for vehicular and pedestrian traffic which shall commence at or near the
intersection of Vermont Route 100 and the “Old” Route 100 and run
approximately parallel to Crossett Brook until it reaches the boundary line of the
Remaining Lands of the State of Vermont, a distance of approximately 1,500 feet.
Said right-of-way shall correspond with a two lane gravel road which Grantee
shall construct across the premises being conveyed by this deed. Grantor further
reserves to itself, its successors and assigns the right to align a road on the
Remaining Lands of the State of Vermont with the right-of-way reserved under
this deed and make the entire roadway, including the right-of-way, accessible to
the general public.
Shortly thereafter, the Town conveyed its interest in the property to the Town of Duxbury
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School District. This quitclaim deed includes this: “This conveyance is subject to a reservation
to the State of Vermont as set forth in the Quitclaim Deed from the State of Vermont to the
Town of Duxbury of even date herewith.” The face of the deed does not more explicitly describe
the reservation.
Shortly after that, still in 1996, the Town of Duxbury School District conveyed its interest
in the property to a unified school district that became Harwood’s predecessor-in-interest. This
quitclaim deed includes this: “This conveyance is subject to a reservation to the State of Vermont
as set forth in the Quit-Claim Deed from the State of Vermont to the Town of Duxbury, dated
June 28, 1996, and recorded in Volume 74, at Pages 117–119, of the Town of Duxbury Land
Records.” The face of the deed does not more explicitly describe the reservation.
In 2014, the State conveyed property to JSN to which the ROW provides access. This
quitclaim deed does not detail the ROW, but generally provides as follows:
The Parcel conveyed hereby includes the benefit of and is subject to any matters
of record, casement, rights-of-way and visible servitudes and applicable state and
local environmental, zoning and subdivision permits, law and regulations
(including Act 250 Permit Series No. 5W1243). Lot 1, as referenced in the Act
250 Permit Series No. 5W1243, is subject to the covenants running with the land
for the benefit of the State of Vermont, Agency of Commerce and Community
Development, Division for Historic Preservation.
A 2023 site plan created by Otter Creek Engineering in relation to a stormwater project
documents relevant features of Harwood’s property, including the location of the stormwater
pond and associated grading. According to the affidavit of Mr. Kris Jurentkuff, senior surveying
and engineering technician and project manager at Chase & Chase Surveyors & Septic
Designers, Inc., the pond and grading nearly entirely obstruct the ROW, the location of which he
depicted in red on the Otter Creek site plan. The Court accepts this evidence as documenting the
fact of obstruction.
III. Analysis
Short of remedy, there is little to analyze here. The undisputed facts, largely by
admission, establish the locations of the ROW and the stormwater pond and the fact that the
latter obstructs the former. JSN, the dominant owner, has the right to develop and use the ROW;
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Harwood, the servient owner, has no right to obstruct that use. See Restatement (Third) of
Property (Servitudes) § 4.10 (“[T]he holder of an easement . . . is entitled to use the servient
estate in a manner that is reasonably necessary for the convenient enjoyment of the servitude.”).
JSN claims that the obstruction necessarily entitles it to an injunction requiring Harwood
to remove the pond and related features so that it may develop its ROW in the location set out in
the 1996 State-to-Town of Duxbury deed. JSN may be right, even though that may be a harsh
outcome for the defendant school district.
As the Court understands the facts, the ROW remains undeveloped where it would depart
from Harwood’s driveway. Harwood has admitted the location of the undeveloped ROW by not
challenging JSN’s evidence. The Court notes, however, that Mr. Jurentkuff’s red markup on the
Otter Creek plan presumes that the ROW must proceed from the driveway to JSM’s property in a
perfectly straight line. It is not clear to the Court that the deed language requires precisely that.
It appears to say only that the ROW will “correspond” with what became the driveway such that
it will “align” with a road on JSM’s property. The summary judgment record does not address
this matter (other than by the conclusory presumption that “align” requires a straight line, which
this Court is not obligated to accept on its face), and it may reflect on whether there is room to
reasonably locate the undeveloped portion of the ROW to ensure that JSM receives its benefit
while Harwood does not suffer a harsh and expensive result. Moreover, there could be other
circumstances that counsel in favor of flexibility.
The general rule is that once a surface easement is located on the ground, it may be
relocated only with the consent of both the dominant and servient owners. See Sweezey v. Neel,
2006 VT 38, ¶ 10, 179 Vt. 507. There is at least some uncertainty in this record whether the
deed so specifically locates the ROW that it cannot reasonably accommodate the pond.
Moreover, as Sweezey expressly points out: “Although the owner of an easement is generally
entitled to injunctive relief when the servient estate encroaches upon the easement, the trial court
is not necessarily confined to requiring the removal of the encroaching structure irrespective
of the extent or impact of the encroachment.” Id. ¶ 12 (citation removed, emphasis added).
Given the circumstances, including Harwood’s curious silence in the face of such a
potentially harsh remedy, the Court declines on this record to resolve the precise nature of the
injunctive relief to which JSN will be entitled. This case will be scheduled for a status
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conference to determine next steps.
ORDER
For the foregoing reasons, JSN’s motion for partial summary judgment is granted in
part and denied in part.
Electronically signed on 9/22/2026 5:41 PM pursuant to V.R.E.F. 9(d)
__________________________________
Daniel Richardson
Superior Court Judge
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