Vigorous Property Rights in Vermont

Anthony Sanders · February 3, 2023

This week a fun little private-law case from Vermont—but a private-law case with a dollop of state constitutions. And it’s a dollop that could lead to taking zoning—and other property rights restrictions—to court.

The case concerns a handful of lots carved out of an old farm in some of the state’s famous forested mountains. When a prior owner subdivided the land into various lots, one lot could only be accessed from the nearest road by passing over a couple other lots. Therefore, as is standard in such a situation, the deed conveying the land-locked lot included language creating a right-of-way. The right-of-way was “30 feet in width” and “is for the purpose of ingress and egress to and from the conveyed premises.”

Flash forward forty years and the current owners of the land-locked lot want to lease it to AT&T to build an almost 200-foot-tall communications tower. It seems there’s no reason they couldn’t do that, but to make it viable AT&T needed to connect the tower to a utility pole on the road. Which means burying cables under the right-of-way. However, the owners of the encumbered lots—the lots that the 30 foot right-of-way goes through—objected to this and sued to prevent the burying of the cables. They argued this would go beyond the “ingress and egress” allowed in the deed.

The property owners of the land-locked lot and AT&T won in the lower court. But then last month, in Gladchun v. Eramo, the Vermont Supreme Court reversed. It concluded that “ingress and egress” should be given its “ordinary meaning,” which the court said does not include installing utility lines.

The court’s analysis is largely based on Vermont property caselaw and isn’t particularly relevant to what we do at IJ and the Center for Judicial Engagement. Some lawyers and law students may be interested in those particulars. Why I’m writing about it here is how the court rejected a statement from the Restatement of Property (using the beloved examples of Blackacre and Whiteacre) which said utility lines generally are included in grants of “ingress and egress.”

The court said that’s all well and good elsewhere, but not in Vermont, for two reasons. First, because of Vermont-specific caselaw. Second, more interestingly, because “the Vermont Constitution vigorously protects private-property ownership.” After asserting this vigorous protection the court cited the opening lines to the Vermont declaration of rights, which states “That all persons are born equally free and independent, and have certain natural, inherent, and unalienable rights, amongst which are the enjoying and defending life and liberty, acquiring, possessing and protecting property, and pursuing and obtaining happiness and safety . . .” The court also noted that “[s]ince its founding, the people of the state have expressed a robust commitment to private-property ownership” and quoted a past opinion where a Vermont judge wrote that protecting “citizens’ rights to security in their land was a key motivating force in creating the Vermont Constitution.”

Such sentiments about the value of private property from a state supreme court are truly appreciated. And are correct, both as to what the state constitution says and its motivating force. But they’re not all that special to Vermont. Regular readers of the blog will know that the quoted constitutional provision is a Lockean Natural Rights Guarantee. The language was first drafted by George Mason in 1776 and versions of it (usually including the property-specific language) are in over half of all state constitutions. And, of course, security in land ownership was a motivating force in all kinds of states when their people adopted their own constitutions. In fact, it would be kind of bizarre if it wasn’t—it’s not like any state constitutional convention has turned into the Paris Commune.

Further, although it’s great that the court emphasized the value of private property ownership, the owners of the land-locked lot must have had a sense of betrayal. After all, they own their right-of-way and believe that it gives them a property right to lease to another property owner, AT&T, who will bury cables. This is more a matter of where two property owners’ rights begin and end (as I wrote about last month) than of the value of property rights versus their denial. In any case, the case was remanded on a different issue and perhaps in the end Ronald Coase will sort it all out anyway.

Yet, the court’s statements are still welcome and should be taken seriously. If the Vermont Constitution “vigorously protects private-property ownership” that has many potential implications. One is the validity of zoning laws. Vermont has zoning just like every other state, and restrictions on building housing have created a housing crunch like in many other places. Therefore, these welcome words from the Vermont Supreme Court could be an invitation to take zoning to court, or other property rights restrictions. Let’s see if anyone takes the court up on the offer.

Anthony Sanders is the Director of the Center for Judicial Engagement at the Institute for Justice.