Thomas v. Farrell

568 A.2d 409, 153 Vt. 12, 1989 Vt. LEXIS 212
CourtSupreme Court of Vermont
DecidedOctober 20, 1989
Docket88-118
StatusPublished
Cited by6 cases

This text of 568 A.2d 409 (Thomas v. Farrell) is published on Counsel Stack Legal Research, covering Supreme Court of Vermont primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Thomas v. Farrell, 568 A.2d 409, 153 Vt. 12, 1989 Vt. LEXIS 212 (Vt. 1989).

Opinion

Dooley, J.

Plaintiffs Herman S. and Mavis C. Thomas appeal from the decision of the Chittenden Superior Court, which granted summary judgment in favor of defendant Thomas Farrell, declaring that a provision in plaintiffs’ deed permitted defendant to diminish the number of parking spaces in the common parking area. We affirm.

Plaintiffs own a furniture store in a building that they purchased, along with the land directly underneath the building, from defendant under a warranty deed dated January 28,1960. The land and building are in a shopping center along Shelburne Road in South Burlington. The building is free standing. The deed contained certain easements for parking: (1) exclusive use of a 25-foot-wide area east of plaintiffs’ building and a similar area south of their building for customer parking; (2) use of an area north of their building, part of which defendant reserved the option to revoke in the event of further construction; and (8) shared use in common with other shopping center tenants of an area west of their building. The area west of the building lies between plaintiffs’ store and Shelburne Road and to the north of the original access way for the shopping center. It was originally fully available for parking. This dispute centers on that area.

In 1970, the City of South Burlington initiated changes in the city traffic pattern and informed defendant of its intent to build *14 a curb divider on Shelburne Road which would prevent left turns into the common parking area along the access way south of plaintiffs’ building. At that time, the access way did not align with anything on the other side of Shelburne Road. Defendant responded by moving the access way to the north to align with Home Avenue, a street on the opposite side of Shelburne Road. In order to accomplish this, the relocated access way cut diagonally across the parking area to the west of plaintiffs’ store. Before moving the access way to align with Home Avenue, defendant secured the consent of all businesses in the shopping center, including the plaintiffs’. The change in location of the access way unavoidably affected the traffic flow pattern over the common parking area and necessitated a reduction in the number of parking spaces in the common lot in dispute from 66 to 47 or 48.

On November 12, 1984, plaintiffs filed their complaint in the Chittenden Superior Court, challenging the reduction in the available parking places that resulted from defendant’s relocation of the access way. The record shows that plaintiffs initially acknowledged that the relocated access way was reasonable given traffic and safety requirements. However, they asserted in their complaint that defendant had deprived them of the benefit of the easement for parking, and they sought a declaratory judgment to that effect along with an order directing defendant to supply them “with adequate and convenient customer parking space” to make up for the loss.

Defendant filed a motion for summary judgment on September 21, 1987. Plaintiffs opposed defendant’s motion but filed no motion of their own although they agreed that there was no dispute as to any material fact. The trial court granted summary judgment in favor of defendant, holding that the easement granted defendant the right to diminish the plaintiffs’ right to share in the parking spaces in the common lot west of their building. Plaintiffs appeal claiming that summary judgment should be entered in their favor.

We start by noting that when we consider the correct disposition of a motion for summary judgment, we apply the same standard upon review as applied by a trial court. Cav *15 anaugh v. Abbott Laboratories, 145 Vt. 516, 520, 496 A.2d 154, 157 (1985). That standard was recently stated as follows: “In order to succeed on a motion for summary judgment, the moving party must satisfy a stringent two-part test: first, no genuine issue of material fact must exist between the parties, and second, there must be a valid legal theory that entitles the moving party to judgment as a matter of law.” Price v. Leland, 149 Vt. 518, 521, 546 A.2d 793, 796 (1988). See also Reporter’s Notes to V.R.C.P. 56(c). The parties have agreed that the first prong of the test is met. Thus, we are presented solely with a legal issue — whether the undisputed facts entitle defendant to a judgment as a matter of law.

The legal issue centers on the proper construction of the easement contained in plaintiffs’ deed. The pertinent language is as follows:

6. The Grantees shall have an easement, in common with others doing business in the vicinity, for customer parking in the area lying between the granted premises and Shel-burne Street,... Grantor covenants and agrees that he will never construct any building on the said parking areas, or otherwise interfere with its use for parking except that a fifty (50) foot wide strip along the easterly sideline of Shel-burne Street may be posted as a no parking zone to provide a right of way to the Cities Service Oil Company service station.
The use of the foregoing easements for ingress, egress, access, parking, loading and unloading, shall be subject to such reasonable rules and regulations for the control of traffic as the Grantor, his heirs or assigns, may from time to time prescribe, and to such restrictions as have been or may hereafter be imposed by users of the areas. The Grant- or may from time to time perform necessary maintenance work, make necessary improvements, provide illumination, clear the area of snow and debris, erect and remove signs and curbs, enlarge or diminish the rights of the Grantees and other persons to make use of the parking areas, and adopt and carry out such other practices as shall be beneficial for the purposes for which the easements are granted *16 or reasonably necessary for the enjoyment of the privileges by the Grantees and others. Provided, however, such reserved rights shall not be exercised so as to deprive the grantees of the benefit of the easement herein granted.

Plaintiffs’ position is that: (1) the first sentence of the deed provision grants them the right to park in common with others; (2) the following sentence insures defendant will do nothing to interfere with the use of the parking areas except for the reservation of the 50-foot-wide strip; and (3) the final sentence of the provision insures that defendant shall not deprive plaintiffs of the benefit of the easement. Defendant relies on the second paragraph of the easement provision, specifically the first sentence which states that “the use of the easements shall be subject to such reasonable rules and regulations for the control of traffic as the [defendant] may... prescribe, and to such restrictions as [may be] imposed by users of the area.” He also relies on the next sentence which states that the defendant may enlarge or diminish rights to the parking areas “for the enjoyment of the privileges by the [plaintiffs] and others.”

Our first responsibility in a deed construction case is to determine whether the deed is ambiguous. This is a question of law. See Isbrandtsen v. North Branch Corp., 150 Vt.

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Cite This Page — Counsel Stack

Bluebook (online)
568 A.2d 409, 153 Vt. 12, 1989 Vt. LEXIS 212, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thomas-v-farrell-vt-1989.