VTRE Investments, LLC v. MontChilly, Inc.

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.

2020 VT 77

No. 2019-387

VTRE Investments, LLC Supreme Court

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

MontChilly, Inc. May Term, 2020

Megan J. Shafritz, J.

Alexander J. LaRosa of MSK Attorneys, Burlington, for Plaintiff-Appellee/Cross-Appellant.

Russell D. Barr and Scott L. Keyes of Barr Law Group, Stowe, for Defendant-Appellant/
Cross-Appellee.

PRESENT: Reiber, C.J., Robinson, Eaton, Carroll and Cohen, JJ.

¶ 1. ROBINSON, J. This appeal involves a dispute between neighboring property

owners over the scope and enforceability of two express easements. Defendant, MontChilly, Inc.,

appeals the trial court’s order, after an evidentiary hearing, requiring it to remove portions of a

fence that interferes with plaintiff’s easement for ingress and egress. It also contends that the trial

court improperly failed to issue a ruling on its counterclaim for trespass against plaintiff for parking

on MontChilly’s property without any legal right to do so. On cross-appeal, plaintiff, VTRE

Investments, LLC, challenges the court’s holding that it is bound by a reciprocal easement

allowing a drainpipe over its property on the ground that its predecessor in interest did not sign the

instrument creating the easement. We reverse the trial court’s order requiring MontChilly to
remove portions of its fence and remand for the court to enter judgment on MontChilly’s trespass

counterclaim. With respect to VTRE’s cross-appeal, we affirm the court’s judgment and remand

for further proceedings in light of this holding.

¶ 2. The trial court’s findings reflect that MontChilly owns commercial property on the

Mountain Road in Stowe, Vermont, where it operates the Northern Lights Lodge. Michael Seaberg

is the principal owner and operator of MontChilly and lives at the Lodge with his family. His

property is bounded on one side by the Mountain Road and extends towards the West Branch River

on the other. Several residential properties sit between the Lodge and the river, including property

VTRE purchased in 2017. Nicholas Lizotte is the principal and sole member of VTRE. Before

VTRE bought the property, Lizotte lived there for some time as a tenant.

¶ 3. MontChilly’s property is burdened by various servitudes in favor of VTRE’s

property, including a right-of-way for ingress and egress from the Mountain Road over

MontChilly’s property to the VTRE parcel. In addition, a 2010 deed executed by Seaberg on

behalf of MontChilly grants VTRE’s predecessors-in-interest, the Schmidts, a sewer easement to

connect the VTRE property to the municipal sewer system.1 The deed includes a reciprocal

covenant by the grantee to “provide a 4-inch diameter drain pipe running from the common

boundary with the Grantor through [Schmidt’s] property to the river for the purpose of diverting

water flow from the sump pump(s) located within lodging facility situated on [MontChilly’s]

property to the river.” The Schmidts did not sign the instrument.

¶ 4. Tensions between the two parties escalated following a dispute over water drainage,

and VTRE sued MontChilly in July 2017. VTRE sought a declaratory judgment that MontChilly

has no right to discharge water over plaintiff’s property or to run hoses or other means of water

1
For simplicity, we refer to the properties as the “VTRE property” and the “MontChilly
property” even when referring to time periods when the properties were owned by others.

2
transport over plaintiff’s property to the adjacent river.2 In response, MontChilly counterclaimed,

alleging, among other things, that occupants of the VTRE property had intentionally trespassed by

knowingly parking on MontChilly’s property without any legal right to do so.

¶ 5. In the spring of 2018, after VTRE commenced this action but before the bench trial,

MontChilly built a forty-foot fence along its property line. In response, VTRE filed an Emergency

Motion to Enjoin Defendant’s Modification and Landscape Work on Property in Dispute, arguing

that the fence encroached on a driveway turnaround on VTRE’s property. In its motion, VTRE

grounded its claim on a theory of adverse possession “and/or” prescriptive easement with respect

to the turnaround area. Following a hearing, the court declined to grant emergency injunctive

relief because VTRE had not shown irreparable harm. The court acknowledged that, viewing the

evidence most favorably to VTRE, the fence blocked an area Lizotte and his guests used to turn

around and park. As a result, visitors to the VTRE property had to park on the lawn, and Lizotte

and his visitors had to turn around on the lawn when they wanted to exit the property. But the

court concluded that any temporary damage to the lawn would not constitute “irreparable harm.”

¶ 6. In the context of that hearing, the court noted that VTRE had not formally pled its

claims for adverse possession and prescriptive easement, although the issues were clearly in the

case, and suggested that VTRE formally amend its pleadings to bring its claims “clearly into the

mix.” VTRE did not amend its complaint. At the start of the bench trial of the parties’ various

claims and counterclaims, VTRE’s counsel disavowed its claim to the turnaround by adverse

possession; in his testimony, Lizotte testified that he did not believe he had a prescriptive easement.

¶ 7. Following the trial, but before the court issued its judgment, MontChilly filed a

motion for specific performance or preliminary injunction, alleging that VTRE had dug up portions

2
VTRE’s five-count complaint sought declaratory relief with respect to a number of other
alleged easement rights, and MontChilly’s counterclaim likewise raised issues not germane to this
appeal. We limit our description of the parties’ respective claims and the proceedings below to
the matters at issue on appeal.
3
of the drainpipe installed across its property. According to the motion, the underground drainpipe

was capped at the edge of MontChilly’s property, preventing the sump pumps in MontChilly’s

basement from evacuating water. The court denied the motion without prejudice in May 2019 and

stated that it would hold a status conference to determine whether any issues remained unaddressed

after it ruled on the pending claims.

¶ 8. In its August 2019 findings and conclusions, the court ruled that MontChilly’s fence

interfered with “VTRE’s traditionally established right-of-way” for turning around (but not for

parking) and must be removed, and that MontChilly has the right to run a four-inch diameter

drainpipe through VTRE’s property to the riverbank area, as well as to enter VTRE’s property to

inspect and maintain it. The court did not directly rule on MontChilly’s counterclaim for trespass

based on Lizotte and his guests parking on MontChilly’s property.

¶ 9. MontChilly filed a motion for reconsideration arguing, among other things, that the

court’s ruling that VTRE’s deeded easement for ingress and egress has traditionally encompassed

a turnaround area was not supported by any evidence. The court denied the motion, reiterating its

finding that MontChilly’s recently constructed fence “limited the traditionally open and undefined

area that had been used in the past for the driveway easement.” In its final judgment order, the

court dismissed MontChilly’s claim that VTRE occupants had trespassed by parking on

MontChilly’s property without a legal right to do so. The court did not address MontChilly’s post-

hearing claim that VTRE had interfered with its right to pipe water over the VTRE property.

¶ 10. On appeal, MontChilly challenges the trial court’s order requiring it to remove the

fence on the ground that it interferes with VTRE’s deeded easement, and argues that the trial court

improperly dismissed its trespass claim after finding that VTRE’s easement did not include any

right to park in the “turnaround” where VTRE occupants parked. In its cross-appeal, VTRE

challenges the trial court’s conclusion that VTRE’s property is encumbered by an easement

allowing MontChilly to run a drainpipe across its property in light of the fact that VTRE’s

4
predecessor in interest did not sign the deed reflecting that covenant. We consider these respective

claims below.

I. The Fence and the Turnaround

¶ 11. MontChilly challenges the trial court’s order requiring it to remove portions of its

fence from the gravel turnaround area and along portions of the driveway easement on two bases.

First, VTRE was not entitled to such a judgment because it never filed a pleading seeking a

declaration that the easement for ingress and egress arising from a 1966 deed was wide enough for

two cars and included a turnaround at the location of MontChilly’s fence, and the issue was not

tried by consent. Second, there is no evidence that the turnaround at issue existed on the

MontChilly property prior to 2010 or that access was traditionally wide enough for two cars to

pass. We consider each argument in turn.

A. Trial by Consent

¶ 12. We conclude that even though VTRE failed to file any pleading asserting a right to

ingress and egress over the area where MontChilly built a fence, the claims were tried by consent

and the trial court properly reached them.

¶ 13. Although parties are generally required to identify their legal claims and specify

their requests for judgment in their pleadings, courts may address issues tried by consent. See

V.R.C.P. 15(b) (“When issues not raised by the pleadings are tried by express or implied consent

of the parties, they shall be treated in all respects as if they had been raised in the pleadings.”). “In

order to find consent for an unpleaded issue, it must appear that the injured party understood the

evidence was introduced to prove the unpleaded issue.” In re Waitsfield-Fayston Tel. Co., 2007

VT 55, ¶ 19, 182 Vt. 79, 928 A.2d 1219 (quotation and alteration omitted).

¶ 14. We conclude that the question of whether MontChilly’s fence interfered with

VTRE’s easement for ingress and egress was tried by consent for several reasons. First, there is

no dispute that VTRE’s claim that MontChilly’s fence interfered with VTRE’s property rights was

5
an active issue throughout the case. Although VTRE’s legal theory as to the basis for its

entitlement to use the contested property as a turnaround (and to park) shifted through the course

of the proceedings, its request for a judgment ordering MontChilly to remove the fence so the

occupants of the VTRE property and their guests could turn around (and park) in that space was a

central issue in the case. VTRE filed a motion specifically seeking removal of the fence, and in

the context of a hearing on the motion the trial court acknowledged that, though it had not been

properly pled, the issue was “obviously in the case.”

¶ 15. Second, both parties presented evidence and argument concerning the scope of

VTRE’s easement relative to the turnaround area in the contested hearing. See Kwon v. Edson,

2019 VT 59, ¶ 30, __ Vt. __, 217 A.3d 935 (identifying aggrieved party’s failure to object at trial

to testimony about issue not expressly pled as factor supporting conclusion that matter was tried

by consent). At the outset, VTRE’s counsel withdrew any claim to adverse possession and said,

“[i]t’s really an easement case.” Lizotte likewise disavowed a prescriptive easement claim,

testified that he had an easement for ingress and egress from the Mountain Road, and asserted that

the placement of MontChilly’s fence was “effectively rewriting the easement.” MontChilly did

not object to this testimony, but instead cross-examined Lizotte concerning the scope of his access

rights. MontChilly’s principal, Seaberg, testified that the turnaround was unnecessary for

reasonable use of the easement and suggested that the only reason Lizotte needed the turnaround

was that he parked too many cars on his property. Although VTRE initially staked its claim to a

right to use the contested turnaround on theories of adverse possession and prescriptive easement,

by the time of the trial, its focus had shifted to the deeded easement for ingress and egress as the

source of its legal rights.

¶ 16. Finally, both parties’ proposed findings addressed the question. See Kwon, 2019

VT 59, ¶ 31 (concluding that inclusion of issue in both parties’ proposed findings supports

conclusion that it was tried by consent). VTRE’s post-trial brief expressly set forth its claim that

6
MontChilly’s fence unlawfully and unilaterally reduced the size and scope of VTRE’s historical

easement. MontChilly did not object to VTRE’s inclusion of this issue either at the time or in its

post-decision motion for reconsideration, which instead focused on the merits of the court’s

analysis with respect to the easement. Moreover, MontChilly’s own post-trial memorandum

acknowledged that “Mr. Lizotte claimed the installation of the fence changed the width of the

access and now requires him to back up 200-300 feet to turn around,” and requested that the court

declare that the driveway easement “be as it appears on the ground” and in surveys from 2016 and

2018. For these reasons, we conclude that MontChilly had fair notice of VTRE’s claim that its

fence interfered with VTRE’s deeded easement for ingress and egress.

B. Sufficiency of Evidence Concerning Turnaround

¶ 17. In its initial decision, the trial court found that a 1966 warranty deed grants VTRE

a right to access the VTRE residence by traveling over MontChilly’s property. It found that, while

the location of the right-of-way was not defined in the warranty deed, the record evidence shows

that “access was traditionally gained through a driveway area near the neighboring . . . property

that was wide enough for two cars to pass each other and included a gravel turnaround near the

VTRE Residence property line.” The Court found that the fence encroaches, at least in part, on

the driveway area “traditionally used as part of the [deeded] easement.” Citing the common-law

rule that the owner of a servient estate may not change the location of a right-of-way without the

consent of the easement owner, the court found that MontChilly’s fence effectively relocated

VTRE’s easement into a smaller area without VTRE’s consent. See Sweezey v. Neel, 2006 VT

38, ¶ 10, 179 Vt. 507, 904 A.2d 1050 (recognizing general property law principle that “the owners

of both the dominant and servient estates must consent to relocate an easement” (quotation

omitted)). The court further concluded that VTRE’s easement did not include the right to park in

the turnaround area on MontChilly’s property.

7
¶ 18. Following the court’s ruling, MontChilly filed a motion for reconsideration

arguing, among other things, that there was no evidence that the longstanding easement for ingress

was wide enough for two cars or included the turnaround area. MontChilly pointed to testimony

that the gravel turnaround was created in 2010 when the contractor who performed sewer

connection work left the gravel behind, and asserted that there was no evidence of use of the area

for turning around prior to 2010. The court reaffirmed its findings and noted, “It is immaterial

whether the ‘turnaround area’ was always gravel or had been a grassy area prior to 2010. . . . There

is no dispute that the open area had always existed on the property, and was not previously fenced

in.”

¶ 19. On appeal, MontChilly reiterates its argument that there was insufficient evidence

to support the finding that the driveway traditionally included this turnaround area. Reviewing the

record in light of the applicable substantive law, burden of proof, and standard of review, we

conclude that the trial court’s conclusion that MontChilly’s fence encroaches on VTRE’s deeded

easement is not supported by the evidence.

¶ 20. The evidence at trial concerning the easement for ingress and egress included the

following. VTRE introduced the 1966 deed establishing the easement. The deed establishes a

“right to pass and travel over other land of the grantor for the purpose of ingress and egress to and

from the [VTRE property], with such right to be exercised through the use of motor vehicle and

similar type conveyance and pedestrian type travel.” The deed does not further define the

parameters of the easement. Lizotte testified that before MontChilly put up the fence, the driveway

was wide enough so that two cars could pass one another without having to back up, and there was

a parking area on the left side that was used to back up and turn around. He estimated the width

of the driveway to be fifty feet. Because of the fence, two cars cannot pass one another on the

8
drive, and the parking area is no longer available to turn around.3 As a result, cars have to back

up a hundred yards to turn around. VTRE introduced a 2016 survey Seaberg had given Lizotte,

which depicts the turnaround area as part of the land covered with gravel. Lizotte acknowledged

that he did not have firsthand knowledge as to whether the gravel turnaround had been used for a

very short period of time. Lizotte offered no evidence about the use of the access easement prior

to his occupancy of the VTRE property.

¶ 21. For MontChilly, Seaberg testified that since he came to the property in 2010, the

driveway had never been wide enough for two cars to pass unless one was driving up on the lawn.

He said the driveway was approximately sixteen, maybe up to eighteen feet wide. He testified that

in 2010, there was no parking or anything else in the area of the turnaround; it was grass. After

Seaberg gave VTRE’s predecessor a sewer easement, the driveway and the corner area now

described as the turnaround area were torn up to facilitate the connection. Upon completing the

project, the contractor filled the driveway back with gravel; instead of filling the area now called

the turnround with grass seed, the contractor dumped gravel and created a parking area. At that

point, Seaberg told Schmidt, VTRE’s predecessor, that he could leave the gravel in place for now,

but if people parking in the area became a problem, he would tell people to stop. It became a

problem at one point, and Seaberg told Schmidt to tell his tenants to stop parking there.

¶ 22. These events prompted Seaberg to get a survey showing the boundaries between

the two properties. Seaberg testified that in response to a request—in late 2016 or early 2017,

before Lizotte closed on the VTRE property—he gave Lizotte the survey. When Seaberg provided

the survey, he noted the turnaround area and told Lizotte it had only been added a few years ago

and was not to be used for parking. Almost immediately after Lizotte closed on the VTRE

3
In response to questions on cross-examination, Lizotte also raised questions about the
boundary line, suggesting that the fence encroached on his property. However, his counsel
clarified that VTRE was not making any claim concerning the boundary line.
9
property, Seaberg observed multiple cars associated with the VTRE property parked on his land.

He sent Lizotte texts asking him to stop parking on his land, but got no response. Seaberg testified

that Lizotte had adequate space to turn cars around on his own property, and that any problems in

that regard were the result of bringing more cars onto the property. Seaberg further testified that

he put up the fence to protect the space for installation of a playground, and to guard against

construction vehicles and dumpsters being placed on his property during an upcoming construction

project involving demolition of the VTRE house. He took measures to ensure that the fence was

entirely on his property, and he testified that the fence did not narrow the driveway but instead was

grounded in the pre-existing lawn.

¶ 23. To determine whether a unilateral act of one party modifies an established

easement, the Court must make a determination as to the scope of the express easement. See

Farrell v. Vt. Elec. Power Co., 2012 VT 96, ¶ 13, 193 Vt. 307, 68 A.3d 1111 (“Whether a particular

use overburdens an easement . . . depends on the easement’s original purpose and the scope of its

authorized use.”); see also J. Bruce & J. Ely, Law of Easements and Licenses in Land § 7.6 (2020)

(“The initial point of inquiry is to determine whether the instrument creating the easement

adequately locates the easement and describes its dimensions.”). The touchstone for interpreting

the scope of an express easement is the intent of the original parties to the easement. Post and

Beam Equities Grp., LLC v. Sunne Vill. Dev. Prop. Owners Ass’n, 2015 VT 60, ¶ 56, 199 Vt. 313,

124 A.3d 454. Where the intent is clearly to create a right of ingress and egress, but the language

of the deed is general, “the owner of the easement is ‘entitled to a convenient, reasonable, and

accessible way, having regard to the interest and convenience of the owner of the land as well as

their own.’ ” Patch v. Baird, 140 Vt. 60, 66, 435 A.2d 690, 692 (1981) (quoting LaFleur v.

Zelenko, 101 Vt. 64, 70, 141 A. 603, 605 (1928)).

¶ 24. While an easement is presumed to include reasonably convenient use, the easement

“must be used ‘in a manner consistent with the use contemplated at the time of its creation,’ and

10
may not be used ‘in a way that materially increases the burden on’ the property subject to the

easement.” Farrell, 2012 VT 96, ¶ 13 (quoting Rowe v. Lavanway, 2006 VT 47, ¶ 22, 180 Vt.

505, 904 A.2d 78 (mem.)); see also Sargent v. Gagne, 121 Vt. 1, 12, 147 A.2d 892, 900 (1958)

(“It is the general rule that a way, once located, cannot be changed thereafter without the mutual

consent of the owners of the dominant and servient estates.”). However, the scope of a deeded

easement can be expanded to account for normal changes to preserve the intended use. See Post

and Beam, 2015 VT 60, ¶ 57 (explaining that the “manner, frequency and intensity of the use of

[an] easement may change over time to take advantage of developments in technology and to

accommodate normal development . . . if doing so would reflect the expectations of the parties

who create servitudes of indefinite duration” (quotation and alterations omitted)).

¶ 25. As the party alleging that MontChilly has encroached on its deeded easement,

VTRE bears the burden of proving this claim. Cf. Patch, 140 Vt. at 66, 435 A.2d at 693 (stating

that proponent of claimed easement had burden of proving where the easement was located). In

assessing the sufficiency of the evidence, we view it in the light most favorable to the prevailing

party and we do not set aside findings of fact unless “there is no credible evidence to support the

findings.” Okemo Mountain, Inc. v. Lysobey, 2005 VT 55, ¶ 8, 178 Vt. 608, 883 A.2d 757. The

court’s findings may be based on reasonable inference, but cannot rise to the level of speculation.

Kwon, 2019 VT 59, ¶ 26.

¶ 26. Applying these standards, we conclude that there is insufficient evidence to support

the court’s findings that the easement historically included a turnaround area to enable cars to turn

around on the MontChilly property. Even assuming the court credits only those aspects of

Seaberg’s testimony that are helpful to VTRE, at most the court received evidence that the

driveway has included a gravel-covered turnaround area since 2010, and that, per Lizotte’s

testimony, occupants and guests of the VTRE property have used the turnaround to turn around

their cars since he began living at the property in July 2016. VTRE offered no evidence that

11
VTRE’s predecessors routinely turned their cars around on the contested area of MontChilly’s

property, or that a turnaround existed, covered with gravel or not, prior to 2010.4 VTRE is not

necessarily required to provide historical evidence dating back to the 1966 deed to establish the

scope of the deed, but the limited evidence of very recent use of the driveway is insufficient to

meet VTRE’s burden to establish that MontChilly has encroached on the deeded easement as

historically understood.

¶ 27. Likewise, with respect to the width of the easement, neither party purported to offer

precise evidence. Lizotte testified that before MontChilly put up the fence, the driveway was fifty

feet wide, extending all the way to the pool. He offered no evidence that two cars could pass each

other within the easement beyond his personal experience since living on the VTRE property for

a little over two years. He offered no physical evidence on the ground, nor evidence of historical

usage to support an inference as to the width of the easement as historically understood by the

owners of the dominant and servient parcels. Although there may be some minimum width that is

necessary to ensure a “convenient, reasonable, and accessible way,” see Patch, 140 Vt. at 66, 435

A.2d at 692, VTRE did not show, and the court did not find, a minimum width necessary to satisfy

this requirement, Cf. 24 V.S.A. § 4412(3) (describing minimum width of permanent access

easements for development subject to zoning regulation). For these reasons, we conclude that the

trial court’s finding that MontChilly’s fence encroached on VTRE’s access easement is not

supported by the evidence, and we reverse the trial court’s judgment that “MontChilly’s fence, as

presently constructed, encroaches on and limits VTRE’s driveway easement and must be moved

or removed.”

4
MontChilly called as a witness the owner of the MontChilly property from 1998 to 2010.
This witness testified that the occupants of the VTRE property did not park on the MontChilly
property. Although this witness presumably could have provided historical perspective dating
back more than another decade, neither party asked this witness about the width of the driveway
or use of the MontChilly property for turning around.
12
II. The Drainage Pipe Easement

¶ 28. On cross-appeal, VTRE contests the trial court’s conclusion that the 2010 Deed of

Easement grants MontChilly the right to run a four-inch inground drainage pipe across VTRE’s

property on the ground that the deed was not signed by VTRE’s predecessor. Whether the drainage

pipe easement is enforceable is a question of law that we review without deference. Miller v.

Flegenheimer, 2016 VT 125, ¶ 11, 203 Vt. 620, 161 A.3d 524 (stating that existence of enforceable

contract is matter of law reviewed without deference).

¶ 29. The 2010 Deed of Easement grants VTRE’s predecessor in interest, Schmidt, a

sewer easement to allow him to connect to the Stowe town sewer. The deed also states:

Grantees also covenant and agree to provide a 4-inch diameter drain
pipe running from the common boundary with the Grantor through
Grantee’s property to the river for the purpose of diverting water
flow from the sump pump(s) located within lodging facility situated
on Grantor’s property to the river.

Seaberg, as grantor with respect to the sewer easement, signed the 2010 Deed of Easement but the

Schmidts, as grantees, did not.

¶ 30. Pursuant to that deed, Schmidt installed the four-inch inground drainage pipe to

connect MontChilly’s sump pump to the river through what is now VTRE’s property. According

to Seaberg, Schmidt voluntarily maintained the drainpipe while he was the owner of that property.

¶ 31. Because the 2010 Deed of Easement was not signed by the Schmidts, VTRE argued

in the trial court that it fails to meet the requirements of the Statute of Frauds, and that he is not

required to allow MontChilly’s drainage pipe to cross his land. The court rejected this argument,

concluding that the Statute of Frauds was satisfied upon Mr. Schmidt’s acceptance of the deed and

that the drainpipe easement is therefore enforceable against VTRE. The court explained

that Mr. Schmidt clearly intended to be bound by the deed, and noted that he received the benefit

of the reciprocal sewer pipe easement in exchange for this obligation.

13
¶ 32. Before the court issued these findings, however, MontChilly filed an emergency

motion for specific performance, alleging that VTRE unilaterally removed the four-inch drainpipe

from its property. MontChilly asked the court to order VTRE to restore the pipe, which was

capped on the edge of its property, preventing the sump pumps in MontChilly’s basement from

evacuating water. The court never ruled on the motion.

¶ 33. In this appeal, MontChilly asks the Court to remand the matter for a ruling by the

trial court on MontChilly’s request for specific performance. On cross-appeal, VTRE renews its

contention that the Statute of Frauds bars enforcement of the drainpipe covenant in the 2010 Deed

of Easement.

¶ 34. We hold that the 2010 Deed of Easement granting the Schmidts sewer

access binds VTRE to the reciprocal drainpipe easement contained within the deed, despite the

fact that the Schmidts did not sign the instrument. Because the instrument executed in this

agreement did not purport to require the signature of the grantees, it is considered a deed poll. As

explained in further detail below, while the term “deed poll” is somewhat antiquated in Vermont,

such deeds are nevertheless recognized and valid. The modern trend is to treat reciprocal

covenants by grantees in deeds polls binding on grantees who accept the deeds. The principle of

estoppel further supports our conclusion that affirmative reciprocal obligations contained in deeds

poll are enforceable against grantees who accept the deeds, even when they have not signed them.

The authority relied on by VTRE in its attempt to distinguish this case from those where acceptance

does not bind the grantee is unpersuasive. We therefore remand for consideration

of MontChilly’s motion for specific performance in light of this ruling.

¶ 35. A deed poll is a term referring to a conveyance executed unilaterally and sealed

exclusively by the grantor. See Restatement (Third) of Prop.: Servitudes § 2.1 cmt. b (2000). The

deed poll gets its name from the term ‘polled,’ in the sense of the flat head of an animal whose

horns have been removed. See 1 Williston on Contracts § 2.7 (4th ed. 2020) (citing 2 Blackstone

14
Comm. 295); Polled, Merriam-Webster Online Dictionary, https://www.merriam-

webster.com/dictionary/polled [https://perma.cc/LTA3-RQFG] (defining “polled” as “having no

horns”). In the ancient common law, a deed executed unilaterally by one party was flat at its top,

or polled, while deeds executed by two parties were cut in a wave along their center, creating a

teeth-like pattern. See id. The term used to describe these bilaterally executed agreements was

“indenture,” derived from the Latin phrase for “like teeth,” as the jagged edge on the parchment

was “cut or indented in a toothlike manner, similar to that of a saw.” See id.

¶ 36. In Vermont, deeds poll have been recognized by common law, although overt

reference to them ended in the early twentieth century. See, e.g., Blake v. Tucker, 12 Vt. 39, 45-

46 (1840) (“It is no doubt true, that the grantor in a deed poll, and, to some extent, all who claim

title under him, are bound by recitals in the deed.”). This Court’s last reference to a deed

poll involved a dispute over the sale of a home farm in Orange County, in which the instrument in

question was briefly and anecdotally referred to as a “deed (poll)” without further

discussion. Maidment v. Frazier, 90 Vt. 520, 526, 98 A. 987, 989 (1916). The term “deed poll”

has dropped out of the modern lexicon, but the instrument it references remains commonplace.

Restatement (Third) of Prop.: Servitudes § 2.7 cmt. g (2000) (“The standard deed used in

American practice is a deed poll, which is signed only by the grantor.”). Although this Court has

long recognized the enforceability of deeds poll, we have not directly considered whether

reciprocal obligations in a deed poll that burden the property of the grantee are enforceable even

though the grantee has not signed the instrument.

¶ 37. The modern trend among states that have considered the issue is to enforce such

reciprocal covenants. At common law, deeds poll could not bind a grantee to obligations contained

within because the instrument, by its design, was not sealed by the grantee. See 17 F. Dana,

S.C. Jur. Covenants § 7 (2020). The overwhelming modern trend recognizes the acceptance of a

deed poll as creating a binding agreement on the part of the grantee and successors to the

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obligations of the deed, regardless of whether the grantee has signed the instrument. See id.

(“Early South Carolina cases were in accord [with the common law]. Currently, however, this rule

has been abandoned and South Carolina courts have enforced restrictions created in deeds signed

by the grantor only, usually without discussing the point.”); see also Fort Dodge, D.M. & S. Ry.

v. Am. Cmty. Stores Corp., 131 N.W.2d 515, 522 (Iowa 1964) (“The voluntary acceptance of a

deed poll binds the grantee to the performance of covenants contained therein.”); Johnston v. Mich.

Consol. Gas Co., 60 N.W.2d 464, 467 (Mich. 1953) (“As a rule the grantee by accepting

a deed poll [is bound] to covenants therein contained.”); Barrier v. Randolph, 133 S.E.2d 655, 658

(N.C. 1963) (“[I]t is a settled principle of law that a grantee who accepts a deed poll containing

covenants or conditions to be performed by him as the consideration of the grant, becomes bound

for their performance, although [the grantee] does not execute the deed as a party.” (quotation

omitted)); Hunt v. Curry, 282 S.W. 201, 205 (Tenn. 1926) (“Although the conveyance from

[grantor] to [grantee] was by deed poll, nevertheless the covenants are binding on a grantee who

accepts the benefits of such a deed.”).

¶ 38. The doctrine of estoppel supports the modern rule that reciprocal

covenants in deeds poll are binding against grantees upon acceptance even though they have not

signed them. The Statute of Frauds, codified at 12 V.S.A. § 181, requires a contract for the sale

of an interest in land to be signed by the party against whom it is enforced. However, where one

party has detrimentally relied on the promises made by the other, the doctrine of equitable estoppel

permits enforcement of a contract that otherwise fails the Statute of Frauds. See Restatement

(Third) of Prop.: Servitudes § 2.9 (“The consequences of failure to comply with the Statute of

Frauds . . . do not apply if the beneficiary of the servitude, in justifiable reliance on the existence

of the servitude, has so changed position that injustice can be avoided only by giving effect to the

parties’ intent to create a servitude.”); My Sister’s Place v. City of Burlington, 139 Vt. 602, 609,

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433 A.2d 275, 279 (1981) (holding that doctrine of equitable estoppel grants relief to parties who

have acted in good faith and “changed [their] position in reliance upon earlier representations”).

¶ 39. Here, the Schmidts accepted the deed poll. They received the right to run a sewer

line across MontChilly’s property, at least in part in exchange for allowing MontChilly to run a

drainpipe across theirs. On the basis of the authority above, we hold that the 2010 Deed of

Easements created a binding obligation on VTRE’s predecessor to allow the drainpipe easement.

¶ 40. This case is distinguishable from Jokay, Inc. v. Lagarenne, a case relied upon by

VTRE. 525 N.Y.S.2d 411 (App. Div. 1988). In that case, the parties’ deed failed the Statute of

Frauds for lack of the grantee’s signature. The provisions of the deed required the grantee to act

as grantor in part by providing an easement to the grantor in partial exchange for conveyance of

land. Jokay is distinguishable from this case in at least two ways. First, the court’s analysis

suggests that the deed at issue was written in a way that anticipated a signed express grant of the

reciprocal easement, whereas here, the 2010 deed poll did not require the Schmidts’ seal. See id.

at 414 (“Since [grantee] did not sign this deed, an easement by express grant, as anticipated by the

language utilized, could not have been created.”). By their very nature, deeds poll do not call for

the signature of the grantee, and therefore the deed at issue here required

only MontChilly’s signature. Second, the court found, in contrast to this case, no evidence of part

performance or reliance such as to create an easement by estoppel. Id.

¶ 41. For the reasons set forth above, we affirm the trial court’s holding that the drainpipe

easement is enforceable against VTRE and remand for consideration of MontChilly’s motion for

specific performance in light of this ruling.

III. The Parking Trespass Counterclaim

¶ 42. In response to VTRE’s complaint for declaratory judgment, MontChilly made

several counterclaims, including a claim that VTRE committed trespass by parking its vehicles on

the gravel turnaround area beside the driveway easement.

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¶ 43. In its Findings, Conclusion, and Order, the trial court found that the driveway

easement does not give VTRE the right to park its vehicles on the turnaround, and found that

Lizotte and occupants of the VTRE property sometimes parked their cars in the turnaround area.

It did not otherwise directly address MontChilly’s counterclaim for parking trespass. It did rule

that MontChilly had failed to prove necessary elements of its counterclaims for trespass and

nuisance relating to stormwater runoff and trash disposal.5 In its judgment order, the court stated,

“MontChilly’s counterclaims for trespass and nuisance were not proven and are hereby dismissed.”

The court did not distinguish among MontChilly’s various trespass claims in its judgment order.

¶ 44. On appeal, MontChilly argues that the trial court erred in failing to rule on this

claim. We agree. “Where a trial court has failed to resolve a claim made to it, the proper remedy

is for us to remand.” Lewis v. Cohen, 157 Vt. 564, 572, 603 A.2d 352, 356 (1991). Although the

court made relevant findings concerning the parking trespass claim, it did not resolve that claim in

its Findings, Conclusion, and Order, and we infer that the general dismissal of MontChilly’s

trespass claims in the judgment order was directed only at those claims resolved by its prior order.

We accordingly remand for resolution of MontChilly’s parking trespass claim.

We reverse the order requiring MontChilly to remove its fence, affirm the trial court’s
judgment that VTRE is bound by the easement for a four-inch drainpipe, and remand for resolution
of MontChilly’s parking trespass counterclaim and motion for specific performance regarding the
drainpipe.

FOR THE COURT:

Associate Justice

5
These claims are not among the subjects of this appeal.
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