Berge v. State

2006 VT 116, 181 Vt. 1, 915 A.2d 189



What is necessary depends on the nature and location of a property and may change over time. Access by water, while adequate at one time, is generally not sufficient to make reasonably effective use of property today. Land access will almost always be necessary, even though water access is available. Until recently, access for foot and vehicular traffic tended to be the only rights regarded as necessary for the enjoyment of surface possessory estates. However, the increasing dependence in recent years on electricity and telephone service, delivered through overland cables, justify the conclusion that implied servitudes by necessity will be recognized for those purposes. 


A property owner conveyed land, which became a wildlife area, to the State of Vermont. However, the owner reserved a lot on the western shore of a pond. The deed reserved no express easement for access to the excluded area across the land that was conveyed. The owner later conveyed the excluded area to developers. The deed again contained no reference to any easement across the wildlife area. The buyer purchased two lots in the excluded area from a successor in title to the developers. Thereafter, he regularly accessed his property by car over a gravel road that crossed the wildlife area. Although he owned a fishing boat which he launched in the spring from a public boat-access on the opposite shore of the pond, he did not use the boat to access the property. When the State placed a gate across the access road, the buyer was deprived of overland access to his property. The trial court granted the State's motion for summary judgment and entered judgment in favor of the State. The buyer appealed.


Did the trial court err in its decision to award summary judgment to the State?




The court found that, because the trial court's holding was based solely on the erroneous conclusion that water access defeated the buyer's easement-by-necessity claim, the trial court erred in awarding summary judgment to the State without addressing additional elements of the easement-by-necessity claim.

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