Barber Ledge

More than you probably want to know about Adverse Possession

and Prescriptive Easements, but with some human interest at the end.

––"In the 40 years since, we have never had a problem, unless you count the conversation George and I had about weight loss."

I just edited this to reflect Brother Mark's superior memory, which assures me that the encounter with Tracy Adams and his "heater" happened the way it is written now.

I grew up vaguely aware that we owned 80 acres on Camp Road in Hubbardton, but with no idea where it was. By about 1977 I had my first chainsaw, my first tractor, a Farmall H with a tricycle front end, and my first draft horse and I said, "Mom, where is the South Lot? I could be cutting wood there.” She hadn’t been there since she was a kid, around 1940, but she knew it was "a ways up behind the Hart house.” By this time the Hart house had become the George Hartley and family house.We started up an old log/pasture road just to the right/west of their house that cut through their property and continued on up the mountain – and disappeared. Mom was mystified because it was all woods and when she was there last it was all open pasture. We wandered around for a couple of hours and she just kept saying "I don’t recognize anything.” Eventually, we gave up and went home.

Great Grandfather Clyde Barber pastured heifers and cut firewood on the South Lot until he died. After that, Mom and her mother, Olive, milked and fed the cattle for a while. But during the war, unable to hire help, they sold the cattle and rented the farm to Bob Cook. Bob’s dad, Ray, was a painter but Bob wanted to farm and got his start by renting our farm when he was 15 years old. So Mom suggested maybe Bob could find our missing 80 acres. He said "Oh yeah, I know where it is. Let’s go.” Exact same result. Exact same lamentations that nothing looked familiar. But after an hour or so wandering around, Bob saw an ancient gate post and said "This is it. This is where the gate was into the pasture.” Once oriented we were able to find enough old fence to walk the boundary. It’s roughly 1/4 mile wide east to west and 1/2 mile deep north to south. The west boundary mostly follows a cliff which you can find on the U.S. Geological Survey topo maps labeled as Barber Ledge. We were able to follow where the road out to Hartley’s used to be but it was completely grown up to trees and brush.

Our land had some nice hemlock and maple logs. Bob had a sawmill and proposed a swap. He would trade some dozer work on the road for hemlock. We agreed and though it was winter and we expected to open up the road in the spring we had the most unusual January. Picture a perfect dry, sunny October day and we had three in a row with my friend Larry Stearns and I going ahead with a chainsaw and Bob following with his little 1010 John Deere dozer. When we finished you could drive a pickup from the Hart house nearly to the back of our lot. From the town road to that old gate post is about 1/2 mile. Lots of it steep uphill except where you cross a swamp. Then nearly another half mile uphill to the height of our land, which is the highest point on the whole ridge that runs from Rt 144 to the north to Hortonia Road to the south.

We knew we were crossing someone else’s land from Hartley’s house to our gate, but I don’t think we knew who it belonged to and I don’t think we gave it much thought that they might be displeased. I found out a few weeks later when we got a "cease and desist” letter from Vermont Wanee’s lawyer. I inquired and was told Vermont Wanee was Tracy Adams and was told, "Good luck with him.” I called and tried to explain that my family had used that road for over 100 years and I had looked into it enough to be sure we had a right by adverse possession and we could spend a lot of money on lawyers and end up in the same place or we could meet and talk about it. He said "Talk to my lawyer.” and hung up on me.

Dave Kelly was a year ahead of me in high school. He was inspired by John Kennedy and had set a goal to become president. Step one: President, Otter Valley Student Council. After dealing with the members for a few months he confided that he had changed his mind. He was no longer interested in being president. He would consider dictator. When Dave was approaching his senior year his parents broke up and his mother and brother moved to St. Albans. He really wanted to finish at Otter Valley, so with Mom’s OK I offered for him to stay with us. That year he shared my room during the week and all winter every Friday after school – and I can’t imagine how hard this was – he hitchhiked to St. Albans and hitchhiked back on Sunday. In pursuit of his goal he attended law school in Georgetown and then set up as a lawyer in Montpelier. So I called Dave and he said "Since it’s for Marge I won’t charge you if you do the research.“

This being the pre-Internet dark ages, research meant I went to Montpelier and Dave showed me how to research the case law relating to adverse possession and prescriptive easements. I learned a lot, some of which I still remember, and found cases very similar to ours including one where the woodlot owner hadn’t used the right of way for years but the judge ruled that as long as the right was exercised in the normal course of the traditional use it needn’t be used every year. So we put a bunch of these together plus affidavits from old-timers who remembered our family’s use. Old Bill Steele remembered my great grandfather, Clyde, driving his Morgan stallion on a cart down there every Sunday to salt and check the heifers. My mother’s cousin, Helen Tupper whom we called Aunt Helen and who called us “Baby Doll”, remembered accompanying her father, Horton Farnham, (whom we called Uncle Horton and who stuffed us with his gingerbread and whipped cream) helping Clyde on horseback moving the heifers the 3 miles or so on town roads from home to the South Lot.

The case law on this was pretty clear. In fact, the law says if we didn’t have a right of way that the Selectboard would lay one out for us. Tracy Adams is famously contentious. He has been in and out of court with both Hubbardton and Sudbury for at least 30 years. To this day I believe he thought we were too poor and dumb to overcome his lawyer fueled blizzard. But who was the dumb one if he thought we would walk away from 80 acres? So after reams of court papers we end up in the court room and suddenly he wants to settle. The lawyers go into a room and come out with a proposal to swap land that he must have cooked up in advance because he knew he was going to lose. He will deed us the land to the left/East of the wood road and we will deed him an equivalent amount of our land to the right of the road. We will split the cost of survey etc.

As part of the agreement I met Tracy at Hartley‘s to walk up the road and be sure we agreed what land we were talking about. He brought his brother, and after we walked a few steps up the road he said to him"Oh wait, I left my heater in the car. Will you go back and get it? It's under my seat.“ Thus insuring that I knew he was armed. I don’t know why, but he stalled us on this settlement for over ten years. At one point I got him on the phone to try to resolve it and he hollered into the phone "That deal is null and void!“ and hung up on me. Which is how every phone conversation we ever had ended. After that I didn’t want to settle. I just wanted to continue to use the road. Which we have and we haven’t heard anything about it since about 1993.

The old Hart house burned years ago. George Hartley built a new house, larger and with a garage. Adams had a surveyor divide his land into 10-acre lots and in the process found that his property line went through George’s new garage. He gave George a choice. He could either buy the 10 acre lot at Adams’s asking price or he could tear down his garage. George bought the lot.

As of this writing George and his son, Joe, and Joe’s family still live there. Fortunately for us, they are as easy-going as you could ever hope for. When this all came down about 1980 George said, "Well, I’m not thrilled to find out that you have a right of way through my door yard but I might as well let Tracy spend his money to find out if you do or not.” In the 40 years since, we have never had a problem, unless you count the conversation George and I had about weight loss. When I pull in he is often around, usually working at his hobby of building stone walls. He’s probably pushing 80. Fairly tall and pretty good shape. If I see him I will stop, shut the truck off, and we’ll talk. Often about what biography we are reading, an interest we share. On this day I mentioned that I had lost 15 pounds. I manage to work that into most conversations. I said that I weighed 155 when I got my driver’s license at 16 and now I had gotten back down to that weight. George said that he had lost some weight too, and was also very near his college weight. I then said "The problem is, I have way less muscle now so I actually should weigh less than I did then.” George thought about that for a bit then said "Damn! I hadn’t thought about that.” another pause then “Damn, I wish I hadn’t talked to you!” and walked away.

Bottom line on our right of way. We have used it every year for at least 40 years and I’ve never asked or been denied permission. That is pretty much the definition of a prescriptive easement. I do text Joe when I know I will be using the road just as a courtesy. The one Right of Way limitation being that it only covers our traditional uses such as timber and recreation.

There’s no known survey. Bob Cook told me even though the old fence follows the ledge on our west boundary, that he remembered the actual northwest corner being down over the ledge. He didn’t remember where. A logger/land speculator named Perry McEdwards bought the land west of ours and was getting ready to log. He asked to meet me there to agree on our line. When we met I told him what Bob had told me. His response was to hand me a roll of flagging tape. I could find no sign of a corner and we agreed to a boundary that mostly follows the ledge and he paid for a quit claim deed to be recorded. The town of Hubbardton shows it as 67 acres on their tax maps so there may have been more down over that ledge than we thought.

However many acres it is it feels like a lot when you wander around on foot. I have spent many enjoyable hours in the South Lot since Bob Cook helped me find it. And a few not so enjoyable. The day I blew a hydraulic hose near the very back and walked out then back in with tools and parts through a foot of snow springs to mind. It can be a pain to get there but it’s always worth it. There is now a marked hiking trail that starts at the intersection of Birch Rd. and Route 30 and loops around our land. I would describe the ledges and the spring with the gravity flow pipe filling the old moss covered concrete water tub, but I think you will enjoy it more if you discover it yourself, the way I did. Check that the pipe is flowing while you are there. If it’s plugged, sometimes if you blow on the end of it hard enough you can clear it that way. Then you might be a little light headed but there’s a 5 gallon pail there you can sit on while the tub fills and you catch your breath.