John F. Rawley (Greg Wilson & Maria Shik, Trustee, Appellants) v. Nicholas P. Heymann

NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal
revision before publication in the Vermont Reports. Readers are requested to notify the Reporter
of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109
State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made
before this opinion goes to press.


                                           

                                         No. 23-AP-003

John F. Rawley, et al.                                         Supreme Court
(Greg Wilson & Maria Shik, Trustee, Appellants)

                                                               On Appeal from
   v.                                                          Superior Court, Windham Unit,
                                                               Civil Division

Nicholas P. Heymann, et al.                                    September Term, 2023


Michael R. Kainen, J.

Richard K. Bowen of Law Office of Richard K. Bowen, Springfield, for Plaintiffs-Appellants.

Constance Tyron Pell of Carroll, Boe, Pell & Kite, P.C., Middlebury, for Defendants-Appellees
 Nicholas and Bibiana Heymann.

Hans G. Huessy of MSK Attorneys, Burlington, for Defendants-Appellees Cathryn Abbott and
 Victor Baisley.


PRESENT: Reiber, C.J., Eaton, Carroll and Cohen, JJ., and Dooley, J. (Ret.),
         Specially Assigned


        ¶ 1.   CARROLL, J.        In this declaratory-judgment action, plaintiffs appeal the trial

court’s grant of summary judgment to defendants regarding the allocation of maintenance costs

for a private, shared road. We affirm.

        ¶ 2.   Plaintiffs are the owners of five of seven lots served by Purple Mountain Road, a

private road in the towns of Dummerston and Brookline. Defendants are the owners of the other

two lots. Plaintiffs filed this action in November 2019, seeking a declaration from the court as to

how maintenance costs of the private road should be allocated among the lot owners. Although
all parties acknowledged that they have some obligation to contribute to maintenance costs,

plaintiffs and defendants disagree as to how those costs should be allocated. Plaintiffs assert that

each lot owner should contribute based on the percentage of distance traveled from the public

highway along the private road to reach the driveway to their respective lot. Defendants maintain

that all parcel owners should divide costs equally. Following discovery, the parties filed cross-

motions for summary judgment.

       ¶ 3.    In December 2022, the court issued a written decision denying plaintiffs’ motion

for summary judgment and granting defendants’ motions. The following summarized facts are

undisputed unless otherwise noted. The road was constructed by developers in the mid-1970s as

part of the creation of a seven-lot subdivision. The road is fifty feet wide and extends 3790 feet

from a public highway to a dead-end cul-de-sac; it has no outlets. Plaintiff-appellant Trustee Shik

controls the lot closest to the public highway, and the trust’s driveway is approximately 735 feet

from the highway. Plaintiff-appellant Gregory Wilson’s lot is adjacent to the trust’s property.

Defendants own the two lots located farthest from the public highway—the Heymann lot is

approximately 3356 feet away, and the Abbott and Baisley lot is approximately 3790 feet away.

All parties use the road to access their properties, although the parties dispute the frequency and

intensity of use by various lot owners. All seven of the parties’ deeds provide them the right to

use the road. The chain of title for the first lot conveyed out by the original developers—now

owned by defendants Abbott and Baisley—does not explicitly address road-maintenance

obligations. The deeds for the other six lots all contain a requirement that the grantee “will bear

their proportionate share of the repair and maintenance of the road.”

       ¶ 4.    Currently there is no written road-maintenance agreement that binds all parties.

However, the parties submitted affidavits, prior agreements, and other documents with their

summary-judgment motions, demonstrating numerous different ways that some or all of the parties

or their predecessors in interest have allocated maintenance costs over the years. For example,

                                                 2
defendants Nicholas and Bibiana Heymann submitted a 2012 road-maintenance agreement that

was signed by some but not all owners, recorded in the Dummerston land records, and provided

that all maintenance costs would be divided equally among lots. The Heymanns asserted that all

parties, including those who had not signed, abided by these terms from 2012 through 2017, but

plaintiffs disputed this fact.1 Plaintiffs submitted affidavits and agreements in support of their

assertion that from the 1980s until 2001, when defendants Abbott and Baisley purchased their

property, all lot owners contributed to maintenance proportionally based on distance from the

public highway. Defendants disputed this fact to some extent. The parties also made disputed

assertions about the history and status of development on each lot. It appears that some lots are,

or were recently, undeveloped and some lots may have more than one residence.

       ¶ 5.    The court determined that because there is no operative road-maintenance

agreement binding all parties, 19 V.S.A. § 2702 governs their obligations. See 19 V.S.A. § 2702

(“In the absence of an express agreement or requirement governing maintenance of a private road,

when more than one person enjoys a common benefit from a private road each person shall

contribute rateably to the cost of maintaining the private road . . . .”). It concluded that “rateably”

can mean either equally or proportionally based on use or some other measure, depending on the

circumstances. In considering the circumstances here, the court reasoned as follows:

                 In this case, the parties created a right of way with shared benefits,
               and all have the right to utilize the entire Road at any time. Cf.
               Birchwood Land Company, Inc. v. Krizan, 

, ¶¶ 11 and
               21, 

 (incidental benefits not unjust enrichment). Their
               right of way enhances private and commercial access to their
               properties. The fact that the Road is a cul-de-sac does not compel a

       1
           Defendants Abbott and Baisley argue that an alternative basis for this Court to affirm the
trial court’s ruling is to conclude that the 2012 road-maintenance agreement, which is not signed
by all parties, is nevertheless binding on all parties because all parties performed or otherwise
ratified the agreement. These supporting facts appear disputed. To the extent that defendants are
contending that the trial court erred by determining that the contract was not binding, they waived
that argument by failing to file a cross-appeal. See Huddleston v. Univ. of Vt., 

,

 (1998) (concluding that party who failed to cross-appeal trial court ruling could
not raise contested issues to this Court).
                                                   3
               different conclusion, in that all who access their properties through
               this road also share in privacy afforded by the fact that it is not a
               thoroughfare. Cf. Regan v. Pomerleau, 

, 

 (discussing access/easements by necessity as essential to
               enjoyment of land). In short, under these circumstances, all parties
               must pay a reasonable equal fee for maintenance of the Road, and
               they cannot parse out some smaller amount based on some notion of
               actual use.

       ¶ 6.    On appeal, plaintiffs argue that the trial court should have applied the

“proportionate”-contribution standard contained in all but one of the current owners’ deeds, and

that this standard requires the parties to make prorated contributions to maintenance based on

distance from the public road. Plaintiffs contend that the court’s determination that “rateable

shares” meant “equal shares” is not supported by the record and the court failed to consider

important material facts.2

       ¶ 7.    “We review summary[-]judgment decisions de novo, using the same standard as

the trial court.” Gauthier v. Keurig Green Mountain, Inc., 

, 

, 

. “Summary judgment will be granted ‘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.’ ” 

(quoting V.R.C.P. 56(a)). We review the record as a whole, accepting as true allegations made in

opposing summary judgment as long as they are supported by evidentiary materials, Robertson v.

Mylan Lab’ys, Inc., 

, 

, 

, and give the benefit of all

reasonable doubts and inferences to the nonmoving party. Gauthier, 

.

       ¶ 8.    Where landowners served by a private road are subject to an agreement or particular

requirement for contributing to road-maintenance expenses—for example, as set forth in deeds or

a subdivision plan—the language of that agreement or requirement governs road maintenance.


       2
           Plaintiffs argue that the court was required to hold an evidentiary hearing before issuing
its final order. Plaintiffs do not cite to where they requested a hearing below, nor cite any authority
to support this position. We do not reach this argument. See Khan v. Alpine Haven Prop. Owners’
Ass’n (Khan II), 

, 

, 

 (refusing to reach inadequately
briefed claim); V.R.A.P. 28.
                                                    4
However, where there is no such agreement or requirement, each landowner must contribute

“rateably.” 19 V.S.A. § 2702; Hubbard v. Bolieau, 

, 

 (1984)

(“This Court has long recognized the equitable principle that when several persons enjoy a

common benefit, all must contribute rateably to the discharge of the burdens incident to the

existence of the benefit.” (quotation omitted)). Under the rateable standard, the formula for

contribution must be “reasonable and equitable” given the benefits that each owner receives. Khan

II, 

. Thus, the “basis of fair apportionment will vary depending on the

circumstances.” 

 ¶ 9 (quoting Restatement (Third) of Prop.: Servitudes § 4.13 cmt. e (2000)).

       ¶ 9.    The court correctly determined that the parties’ contributions are governed by 19

V.S.A. § 2702 and the common-law principles recognized in Hubbard. It is undisputed that there

is no current express agreement among all parties regarding maintenance obligations. Plaintiffs

argue that the maintenance servitude requiring “proportionate” contributions, which is contained

in all but one of the parties’ chains of title, should control. Under certain circumstances, a common

servitude may be implied where most but not all deeds in a subdivision contain such language.

See Khan v. Alpine Haven Prop. Owners’ Ass’n (Khan I), 

, 

, 

 (discussing implied servitudes). But there is no indication that plaintiffs raised such an

argument below, and they have not advanced that contention on appeal. Insofar as it was not fairly

presented to the trial court, the court was not obligated to consider whether an implied servitude

pertaining to maintenance obligations existed, and we will not entertain that issue for the first time

on appeal. See Bull v. Pinkham Eng’g Assocs., 

, 

 (2000)

(“Contentions not raised or fairly presented to the trial court are not preserved for appeal.”).

       ¶ 10.   We disagree with plaintiffs that the trial court erred in concluding that the term

“rateably” meant “equal contribution” on the facts of this case. In this declaratory judgment action,

neither party has argued that there is a dispute as to any material fact that would prevent an award

of summary judgment. See V.R.C.P. 56(a). Thus, the trial court, and this Court, are required to

                                                  5
choose only whether “rateably” meant prorated maintenance contributions or equal maintenance

contributions. Osier v. Burlington Telecom, 

, 

, 

 (“The

purpose of a declaratory judgment action is to enunciate, so far as is requested and is appropriate,

the rights of the parties . . . .” (quotation omitted)). In other words, the court was required to

determine which option was “reasonable and equitable” given the benefits each owner received

from the road. Khan II, 

. With this background in mind, its conclusion was

appropriate.

       ¶ 11.   The parties do not dispute that the road ends in a cul-de-sac. Though no party

asserts that they could or could not use the entire road at any time, including the cul-de-sac, the

court inferred that the parties could do so. This was a reasonable inference because it is the only

reasonable inference on these facts. See Vt. Coll. of Fine Arts v. City of Montpelier, 

, 

, 

 (“When . . . there are cross-motions for summary judgment, both

parties are entitled to the benefit of all reasonable doubts and inferences when being considered as

the nonmoving party.” (quotation omitted)). The subject deeds do not limit the parties’ use of the

road. See Rowe v. Lavanway, 

, 

, 

 (stating that goal in

interpreting deeds is to implement intent of parties, which is done by looking to language of written

instrument first because we presume that instrument declares parties’ intent). And we do not

lightly read implied terms into deeds that restrict the scope of ownership. See Gladchun v. Eramo,

, __ Vt. __, 

 (declining to find right to install underground utilities

on easement where unambiguous deed did not contain express right to do so, in part because of

Vermont’s history of vigorous private-property protection).

       ¶ 12.   The opposite inference—that the parties can only use the length of road that

provides access to their driveways from the highway and no more—is unreasonable for a host of

reasons. For example, it is unreasonable to infer that a lot owner must pay additional maintenance

costs if a guest mistakenly drives past the lot owner’s house and uses the cul-de-sac to return to

                                                 6
the correct location. It is unreasonable to infer that law enforcement and emergency services are

limited to a particular portion of the road depending on the location of the property at issue or

could not otherwise use the cul-de-sac to turn around. Nor is it reasonable to infer that defendants

are the only parties who may use the cul-de-sac, or that defendants enjoy a right to use the entire

road while plaintiffs do not.

       ¶ 13.   Based on the court’s unrestricted-use inference, the court also determined that the

parties enjoyed equal benefit from the road given its nature. This too was reasonable. See Khan

II, 

. We do not disagree with the court’s conclusion that the parties equally share

in the benefits of the road and must “pay a reasonable[,] equal fee for” its maintenance.

       ¶ 14.   More importantly, plaintiffs do not challenge the court’s unrestricted-use inference

on appeal. In fact, plaintiffs present the Court with virtually no substantive argument concerning

19 V.S.A. § 2702 and Hubbard, other than to assert that the cases cited by the court do not “support

[the] conversion” from “ratable shares” to “equal shares.” Instead, plaintiffs maintain that “there

is [already] a requirement governing the maintenance and repair” of the road, which is contained

in the subject deeds. They further contend that § 2702 “defers” to local “requirements governing

maintenance of private roads.” We rejected plaintiffs’ “proportionate”-contribution argument

above. See supra, ¶ 9. Plaintiffs also do not contend on appeal that the court improperly

determined equal benefit to each party based on the inference of unrestricted use. Id.

       ¶ 15.   Instead of challenging the court’s reasoning as it relates to § 2702 and Hubbard,

plaintiffs argue that the court did not “make specific find[ings] nor does it reference specific

undisputed facts.” This misunderstands the summary-judgment standard. “It is not the function

of the trial court . . . to find facts on a motion for summary judgment . . . .” Booska v. Hubbard

Ins. Agency, Inc., 

, 

 (1993) (describing that summary judgment

is not substitute for determination on merits); Crosby v. Great Atl. & Pac. Tea Co., 

, 

 (1983) (explaining that “findings of fact” in summary-judgment context

                                                 7
“merely include precise statements delineating the facts that exist without substantial controversy”

(quotation omitted)). Moreover, the court did detail many undisputed material facts in its final

order. For example, it recited the undisputed facts that there was no written road-maintenance

agreement in place at the time of the action, the road extended 3790 feet from the highway to a

dead-end terminus, and that most but not all of the deeds contained the following phrase: the owner

“will bear [his, her, or their] proportionate share of the repair and maintenance of the road.”

       ¶ 16.   Given the two options before it, the court did not err. The court was within its

authority to recount the undisputed facts it did and conclude that “rateably” meant equal

contributions from each party based on the equal benefits each party received from the road. We

see no reason to disturb its order.

       Affirmed.

                                                 FOR THE COURT:



                                                 Associate Justice


       ¶ 17.   COHEN, J., dissenting. I agree that 19 V.S.A. § 2702 controls the underlying

dispute over the amount that each party must contribute towards the costs of maintaining the

private, shared road at issue here. In my view, however, there was a genuine dispute over the

precise benefit that each owner has gained from the right to use that shared road. This necessarily

involves facts that are material to determining the rateable contribution that each owner must pay

towards maintenance expenses.         Under those circumstances, I don’t believe that summary

judgment was appropriate based on the evidence adduced below. Therefore, I respectfully dissent.

       ¶ 18.   Section 2702 provides, in relevant part, that “[i]n the absence of an express

agreement or requirement governing maintenance of a private road, when more than one person

enjoys a common benefit from a private road each person shall contribute rateably to the cost of


                                                 8
maintaining the private road.” 19 V.S.A. § 2702. What constitutes the rateable amount will vary

depending upon the circumstances. See Moyers v. Poon, 

, 

, 

.

        ¶ 19.   This Court has observed that 19 V.S.A. § 2702 “codifies longstanding equitable

principles based on considerations of unjust enrichment.” Moyers, 

. In keeping

with its role, a trial court determines the equitable amount owed by each owner in accordance with

the benefit that owner receives. See Khan v. Alpine Haven Prop. Owners’ Ass’n., 

, 

, 

. But to do so, the evidence must establish the nature and extent

of each owner’s individual benefit that arises from the right to use a road. See Moyers, 

 (concluding that summary judgment improper where evidence was insufficient to

determine nature and extent of benefit accorded to each neighbor).

        ¶ 20.   Here, the trial court concluded that, because each party has equal rights to use and

access the entirety of the road, each party therefore receives an equal benefit. But that should be

the beginning of the inquiry, not the end. We have previously noted a variety of factors that inform

the extent of a benefit gained from the right to use a private road, including who uses the road and

the frequency of that use. Moyers, 

. Consequentially, a deeper inquiry into the

circumstances of how each party utilizes the road is critical to determining the extent of the benefit

that party receives. Two parties that possess the same legal right to access and use a road may not

always benefit equally.

        ¶ 21.   Here, the evidence does not provide a basis to conclude that the road imparts an

equal benefit to each individual party. For instance, defendants Nicholas and Bibiana Heymann

submitted evidence that two plaintiffs have multiple tenants residing at their respective properties,

some of whom have multiple vehicles. They also submitted evidence that some parties are fulltime

residents whereas others are nonresidents who rarely use the road. And according to the evidence,



                                                  9
one plaintiff owns nothing more than a single, undeveloped lot, which is also the smallest lot

among the parties.

       ¶ 22.     To be sure, determining the parties’ use of the road for purposes of evaluating

benefits may be impracticable under certain circumstances. We acknowledged as much in Khan.

. In that scenario, an equal division of expenses might prove to be the most

equitable solution. See Moyers, 

. Unlike in Khan, however, this dispute does

not concern a large housing development involving maintenance expenses for shared

interconnecting roadways consisting of eighty-five lots. 

. Instead, at issue is

a single road involving seven separate lots. Khan’s logic, in my view, is inapposite under the

instant circumstances. Therefore, the trial court should not have disclaimed the relevance of each

party’s actual use of the road in evaluating their respective benefits.

       ¶ 23.     Highlighting my concern is the notion that when multiple parties have an

unrestricted right to use a shared road, a court may reasonably infer that the right provides an equal

benefit to each party. I note that § 2702 applies when “more than one person enjoys a common

benefit from a private road.” 19 V.S.A. § 2702 (emphasis added). That commonality, in my

opinion, clearly contemplates multiple parties possessing the same unrestricted right to use a

shared road. Had the Legislature intended for expenses to be apportioned equally among parties

sharing that common right, the term “equally” would appear in the statute, not “rateably.” See

Northfield Sch. Bd. v. Washington S. Ed. Ass’n, 

, 

, 

(“We presume that the Legislature chose its words advisedly.” (quotation omitted)).

       ¶ 24.     Finally, the trial court apparently felt that it was bound to choose between the two

options proposed by the parties for allocating maintenance expenses. In particular, defendants

requested an equal allocation of expenses, whereas plaintiffs sought to allocate expenses based on

use and distance from the public road access. But I do not believe that the court was restricted to

these choices.     “Courts have a wide range of discretion to mold equitable decrees to the

                                                  10
circumstances of the case before them.” Richardson v. City of Rutland, 

, 

 (1995) (quotation omitted). Given that a court is exercising its equitable powers

when determining a party’s rateable contribution under 19 V.S.A. § 2702, it necessarily has great

latitude in fashioning the relief it believes is equitable. To do so, a court should apply relevant

principles of fundamental fairness as it would for any equitable determination. Cf. Wynkoop v.

Stratthaus, 

, 

, 

 (providing that adjudication of equitable

partition action requires consideration of “equitable principles in crafting a fair remedy between

the parties, while avoiding unjustly enriching either party”).

       ¶ 25.   Although an equal division of expenses might prove to be most equitable under the

circumstances, “that may or may not be the case here.” Moyers, 

. In my opinion,

that determination should have been left to the factfinder, who could very well have reached the

same conclusion as the trial court did here. But the posture of this case does not provide an

adequate basis to render summary judgment on the rateable contribution of the parties pursuant to

19 V.S.A. § 2702. Accordingly, I would reverse and remand for further proceedings.




                                                Associate Justice




                                                 11