Berge v. State Of Vermont

915 A.2d 189 (2006)

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Nature of the Case

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Facts

In 1959, Davis subdivided her estate, conveying 7,001 acres to D. Davis reserved, among other parcels, a lot of approximately thirty-eight acres on the western shore of Norton Pond, known as the Norton Pond Exclusion. The 1959 deed reserved no express easement for access to the Norton Pond Exclusion across the land conveyed to D. Davis conveyed the Norton Pond Exclusion to George McDonald and Bruce Washburn. The deed contained no reference to any easement across D's land. McDonald and Washburn subdivided the Norton Pond Exclusion into eighteen lots, reserving a right of way for each lot over every other lot in the subdivision. P purchased two of the lots from a successor in title to McDonald and Washburn. P has regularly accessed the property by car over a gravel road across D's property. P owns a fishing boat which he launches in the spring from a public boat-access on the opposite shore, he stated without contradiction that he does not use the boat to access the property. D placed a gate across the Route 114 access road, depriving P of overland access to his property. P sued seeking to enjoin D's obstruction. He claimed, that the 1959 deed had created an easement by necessity for the benefit of his property over the land conveyed to D. D moved for summary judgment, maintaining that P's ability to access his property by water, across Norton Pond, defeated a finding of necessity. The trial court granted the judgment, and P appealed.