Musty v. Ryegate

7ermont Superior Court
Filed 10/03/25
Caledonia Unit

VERMONT SUPERIOR COURT CIVIL DIVISION
Caledonia Unit Case No. 24-CV-03857
1126 Main Street Suite 1
St. Johnsbury VT 05819
802-748-6600
www.vermontjudiciary.org

Peter Musty v. Town of Ryegate

ENTRY REGARDING MOTIONS
Title: Motion for Summary Judgment; Cross Motion for Summary Judgment
(Motions: 2; 4)
Filer: Kristen Shamis; Peter E Musty
Filed Date: March 03, 2025; June 16, 2025
3

In this case, plaintiff Peter Musty challenges the decision of the Town of Ryegate to
discontinue a portion of Town Highway #28, also known as Stone Road, which Peter uses to
access a portion of his property. Pending before the court are motions for summary
judgment filed by each side. For the reasons set forth below, the Town's motion for
summary judgment is granted and Peter's cross-motion for summary judgment is denied.
Background
Peter owns a parcel of real property in Ryegate that is bordered on the southern end
by a parcel owned by McCullough Crushing, Inc., and which contains an active quarry.
Town Highway #28, also known as Stone Road, is a Class 4 road that proceeds north from
Witherspoon Road into the McCullough property. Pursuant to its land use permit,
McCullogh has placed a locked gate on Stone Road at the entrance to the active quarry,
approximately 1.29 miles north of the intersection with Witherspoon Road. The permit
requires that Peter have a key to the gate unless and until it is conclusively determined
that he does not possess access rights beyond the gate.
The Town's Selectboard commissioned a report and survey to determine the location
of Stone Road beyond the locked gate, as well as a road identified as Town Highway #29 on
several maps, which runs from Stone Road north of the locked gate and into Peter's
property.
A survey report prepared by Chase & Chase Surveyors and Septic Designers, Inc.,
was submitted to the Selectboard in December 2023. The survey report concluded that
Stone Road was laid out by the Selectboard in 1881 as a pent road and originally intended
to reach the property now owned by Peter, which begins 1.32 miles north of Witherspoon
Road. In 1931, however, the first town highway map depicted Stone Road terminating 1.2

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24-CV-03857 Peter Musty v. Town of Ryegate
miles north of Witherspoon Road before reaching Peter’s land. Beginning in 1946, the town
highway maps began adding a spur running from Stone Road into Peter’s land. The spur
was eventually labeled as Town Highway #29 despite no record of such a highway having
ever been created by the Town. The precise locations of Stone Road and Town Highway #29
shifted in ensuing maps, but in the most recent maps, Stone Road proceeds past the locked
gate and into the quarry before intersecting with the road identified as Town Highway #29,
which runs from the quarry into Peter’s land. After reviewing this history, the Chase &
Chase report concluded that the only town highway was Stone Road, which terminates in
the quarry before reaching Peter’s land, and that the road identified as Town Highway #29
was mislabeled on maps beginning in 1946 and was actually a private quarry road and not
a town highway.
Following receipt of the Chase & Chase report, the Selectboard voted on May 13,
2024 to initiate proceedings to discontinue any portion of town highway that continued past
the quarry gate on Stone Road. The Selectboard conducted a site visit on July 1, 2024,
which Peter and other members of the public attended. The Selectboard convened a hearing
immediately following the site visit to determine whether portion of the town highway
should be discontinued. Peter and others testified at the hearing. In advance of the hearing,
Peter also submitted a letter from licensed land surveyor Harry Burgess, who opined that
Peter may have a prescriptive easement to access his property from Stone Road, and that in
any event the Town should reserve Peter a deeded private right-of-way to ensure his ability
to access his property form Stone Road, or at the least, compensate Peter for terminating
his access by discontinuing the highway. The Selectboard considered this letter.
On August 28, 2024, the Selectboard issued a decision and order making findings of
fact and ordering that any town highway beyond the locked gate on Stone Road be
discontinued. The Selectboard found, among other things, that the Town did not maintain
any portion of the highway beyond the locked gate; there are no residences on either Stone
Road or Town Highway #29 beyond the gate; and that a town highway (or a public trail)
passing through an active quarry is inherently dangerous and may create liability issues
for the Town. The Selectboard did not make a finding as to whether the discontinued road
reached Peter’s property line but noted that Peter may have statutory or common law
rights of access over the discontinued road.
Peter timely petitioned this court for review of the Town’s decision pursuant to Rule
75 of the Vermont Rules of Civil Procedure.
Analysis
The parties agree that the court’s review of a Town’s decision to discontinue a town
highway is made pursuant to Rule 75. Freund v. Town of Hartland, No. 223-4-04 Wrcv,
2005 WL 5872176 (Vt. Super. Sep. 13, 2005) (DiMauro, J.) (concluding that court may
review a selectboard’s decision to discontinue a town highway under Rule 75).

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24-CV-03857 Peter Musty v. Town of Ryegate
Under Rule 75, the court’s review is limited to the record before the Selectboard,
whose decision must be affirmed if it is supported by “adequate evidence.” Ketchum v. Town
of Dorset, 2011 VT 49, ¶ 16, 190 Vt. 507. The court reviews question of law de novo.
Demarest v. Town of Underhill, 2013 VT 72, ¶ 12, 195 Vt. 204 (“[I]n Rule 75 appeals
jurisdiction is usually confined to reviewing questions of law, and consideration of
evidentiary questions is limited to determining whether there is any competent evidence to
justify the adjudication.” (quotation omitted, emphasis added by Demarest)). “Summary
judgment is appropriate ‘if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.’” Hier v. Slate
Valley Unified Sch. Dist., 2025 VT 2, ¶ 8 (quoting V.R.C.P. 56(a)).
The Selectboard’s authority to discontinue a town highway is governed by statute.
Specifically, Section 710 of Title 19 provides:
After examining the premises and hearing any interested parties, and if the
selectboard judges that the public good, necessity, and convenience of the
inhabitants of the municipality require the highway to be laid out, altered, or
reclassified as claimed in the petition, it shall cause the highway to be
surveyed in accordance with the provisions of section 33 of this title if the
highway right-of-way cannot be determined and shall place suitable
monuments to properly mark the bounds of the survey. If the selectboard
decides to discontinue a highway, the discontinuance shall be in writing
setting forth a completed description of the highway.
19 V.S.A. § 710.
This statute is somewhat unclear as to whether the “public good, necessity, and
convenience” standard applies to a decision to discontinue, or whether such a decision
merely needs to “be in writing setting forth a completed description of the highway.” See id.;
Freund, 2005 WL 5872176 (“[T]he statute simply does not require any particular findings of
fact for the discontinuance of a highway.”). The Selectboard nonetheless applied the “public
good, necessity, and convenience” standard to conclude that any town highway proceeding
past the quarry gate on Stone Road should be discontinued.
The record before the Selectboard supports its conclusions. It is undisputed that the
Town was not maintaining any roads beyond the quarry gate, that the discontinued roads
were not used to access any residences (although Peter used them to access a portion of his
property), that members of the public would sometimes use the road in order to trespass on
McCullough’s land to swim and hike, and that according to the Town’s road foreman, there
may be safety and liability issues involved when a town highway travels through a quarry.
Given the deferential review the court must apply under Rule 75, the court concludes that
this record supports the Town’s decision.
Peter makes several arguments as to why the Town’s decision should nonetheless be
reversed because it is not supported by competent evidence.

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24-CV-03857 Peter Musty v. Town of Ryegate
First, he argues that the testimony of the Town’s road foreman as to potential
liability should not have been considered because the foreman was not an attorney and thus
not qualified to opine on liability, and in any event, the Town and its employees are entitled
to sovereign and qualified immunity with respect to the maintenance of town roads. Second,
Peter argues that the lack of any residences on the discontinued roads is irrelevant. Finally,
Peter argues that there is a public benefit to maintaining the road insofar as Peter uses it
to access his property and members of the public use it for recreational purposes.
While these are all good faith arguments in support of continuing the town highway
past the quarry gate, they fail to demonstrate that the Town’s decision is unsupported by
competent evidence. Even putting aside the issue of its own financial liability and the
potential availability of immunity defenses in litigation, the Town appropriately considered
that having a town road passing through an active quarry is “inherently dangerous” and
thus poses a public safety risk. Town’s Mot., Exh. 7 at ¶ 15. See, e.g., Pugliese v. Town of
Bennington, No. 2008-156, 2008 WL 4542985, at *2 (Vt. Oct. 2008) (unpub. three-justice
entry order) (Town appropriately considered public safety under Section 710 in laying out
extension of town highway). It was also within the Town’s discretion to conclude that this
concern, coupled with the general lack of public need for a town highway in the quarry,
outweighed the public’s interest in being able to use the discontinued roads to recreate on
private property or the interest of one resident, Peter, of using the road to more
conveniently access his property. Moreover, as the Town noted, it was not deciding whether
Peter had a legal right of access vis-à-vis McCullough, rather the Town was exercising its
discretion to discontinue a small portion of a town highway that extended past a locked
gate and into an active quarry. Having reviewed the record, the court sees no basis to upset
the Town’s reasoned decision.
Order
The Town’s motion for summary judgment is GRANTED and Peter’s cross-motion
for summary judgment is DENIED.

Electronically signed on: 10/3/2025 pursuant to V.R.E.F. 9(d)

_______________________________________
Benjamin D. Battles
Superior Court Judge

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