Senesac v. Muir

the southerly line of property belonging to Maynard LaBombard to an iron stake;
thence turning an angle and running in a southerly direction along the westerly
boundary of property of said Grantors and parallel with the first mentioned
boundary a distance of 300 ft. to an iron stake; thence turning an angle and
running in a westerly direction a distance of 100 ft. to the place of the beginning.

That deed included two rights of way below the above section. Paragraphs 2 and 3 provided:

Also granted is a 20 foot right of way from the so-called West Shore Road east
along the south end of the premises conveyed and premises of Stanley Charles.
The grantors, their, executors, administrators and assigns have the right to the
joint use of this right of way for farm purposes only.”

Also conveyed is the westerly extension of the 20 foot right of way on the west
side of West Shore Road to the low water mark of Lake Champlain.

Ex. 1.

In 1968, the LaBombards sold Mr. Senesac’s parents an additional 300-by-50-foot parcel
adjoining the 1966 parcel. Together, these two parcels formed a combined 300-by-150-foot
parcel (the “Benefited Parcel”). Ex. R.

The 1968 deed also addressed any doubt about the two rights of way in the 1966 deed. It
stated:

The Grantors, in order to remove any doubt as to the title of the Grantees herein,
do hereby affirm and declare that the “westerly extension of said 20 foot right of
way” described in paragraph #3 of their Warranty Deed to the Grantees herein
dated October 21, 1966 and recorded in Book 12, Page 80 of the Isle LaMotte
Land Records was intended by them to be and was conveyed in fee simple and
should not be construed as being a mere right of way as described in #2 of the
above said Warranty Deed.

Def. Ex. 17 (emphasis added). Paragraph #2 refers to the Right of Way at issue here.

Over time, Mr. Senesac’s parents conveyed all land comprising the Benefited Parcel in
four deeds to third parties. Ex. R.

Mr. Senesac’s parents conveyed the Southerly 1/3 to Harold and Ethel LaMountain in
1967 and 1968 (Southerly Deeds 1 and 2). The Southerly Deed 1 provided: “Also conveyed
herewith in common with others is a 20-foot right of way from the so-called West Shore Road
leading both east and west as described in the aforementioned deed from [LaBombard].” Ex. R.
The Southerly Deed 2 similarly conveyed “the right to the use in common with others to the right
of way described and referred to above.” Ex. R.
Mr. Senesac’s parents conveyed the Northerly 1/3 to Kenalene R. Daniels in December
2005 (Northerly Deed) and the Middle 1/3 to Heather Lynn Kohser and Carol Eileen Lynch in
June 2006 (Middle Deed). Both deeds stated: “Included in this conveyance and reserved by the
Grantors is a right of way for ingress and egress along an existing 22-foot right of way from
West Shore Road to the private road mentioned above. This 22-foot right of way extends
easterly from West Shore Road and westerly to Lake Champlain.” Ex. R. Neither deed imposed a
farm-purposes restriction on the grantees’ use of the Right of Way.

By 2006, Mr. Senesac’s parents had divested all land within the Benefited Parcel.

In approximately 2000, before he conveyed the middle and northern lots, James Senesac,
Sr. asked William Robenstein to prepare a survey. The Robenstein survey labeled what is now
Senesac Place “Existing 22 foot Right of Way.” Ex. H-1, H-2.1 It showed the Right of Way
connecting to the Farm Parcel in the rear and disconnected from any of the Benefited Parcels.
The Town Tax Maps likewise reflect that the Right of Way is located within the Muir Farm
property. Ex. H-1, H-2

In December 2008, Mr. Senesac’s father executed a Quit Claim Deed to Mr. Senesac.
Ex. 3. That deed conveyed to Mr. Senesac an enhanced life estate in:
the right to use, in common with others, the twenty-foot right of way now known
as Senesac Place, which right of way runs easterly from West Shore Road . . .
Ex. 3. Both Mr. Senesac and his father testified that they intended the 2008 deed to convey the
Right of Way parcel itself.

Roger and Angela Gaboriault purchased the Farm Parcel in 2016. They farmed the land,
growing and cutting hay and raising cattle. In approximately 2019–2020, the Gaboriaults
constructed a farmhouse on the Farm Parcel. Ex. R.

Mr. Senesac, a building contractor, worked on the farmhouse. He personally performed
or oversaw decking, roofing, and sheetrock work, and he engaged subcontractors for flooring and
other elements. The Gaboriaults paid Mr. Senesac in cash for his labor and the subcontractors’
work.

Mr. Gaboriault testified that when the Gaboriaults purchased the Farm Parcel in 2016,
Mr. Senesac immediately claimed permanent hunting rights on the farm but did not mention the
farm-purposes covenant on the Right of Way. When Mr. Senesac and Mr. Gaboriault later
discussed the covenant, Mr. Senesac characterized the intent of the phrase “farm purposes” to
prevent subdivision of the Farm Parcel. Mr. Senesac did not express to Mr. Gaboriault that the
covenant barred access to a farmhouse.

The Gaboriaults knew of the “farm purposes” covenant but believed a farmhouse fell
within its scope. Mr. Senesac never raised the farm-purposes covenant during the permitting

1 There is no evidence before the Court explaining why the description went from 20-feet

to 22-feet, and this issue was not raised by the parties.
process or at any point during construction. This includes the time period when construction/
delivery vehicles were using the Right of Way to construct the house.

Mr. Senesac visited the completed farmhouse many times. He and Mr. Gaboriault
maintained a friendly relationship throughout the Gaboriaults’ ownership. At no time during the
seven years the Gaboriaults owned the property—including during construction and their
subsequent years of residence—did Mr. Senesac tell the Gaboriaults that their access over the
Right of Way violated the “farm purposes” covenant.

Mr. Senesac testified that he did not object to the Gaboriaults’ construction because he
did not believe he could control what they did on their own property. The Court did not find this
credible because it ignored the necessary use of the Right of Way by delivery and construction
vehicles during construction of the home.

The Gaboriaults occupied the farmhouse as their residence for several years until they
sold the Farm Parcel to the Muirs in July 2023.

The Farm Parcel was listed for sale as a “farm” with an “energy efficient farmhouse.” Ex.
11. The Seller’s Property Information Report listed the use as a “Farm.” Ex. 12. The listing
contained only a non-public remark noting access was limited to farm purposes. Ex. 11 at 2.
The Gaboriaults did not disclose the farm-purposes covenant to prospective buyers in any public
listing materials.

Bryan Muir testified that he and his wife planned to retire and had searched for a farm
property since 2018, looking in Vermont, New Hampshire, and Maine. They instructed their real
estate agents to find a farm with at least 20 acres.

Before the sale closed, the Muirs’ real estate agent reported to the Muirs that the sellers’
agent mentioned a man on a tractor had yelled, “I’m going to make sure they keep it in farm
use.” The Muirs were not concerned by this statement because they intended to farm the
property. No one communicated that this statement related to a claimed restriction on accessing
the farmhouse.

Mr. Senesac claimed he spoke with Attorney Michael Gawne before the Muir purchase.
Attorney Gawne represented the sellers, not the Muirs. Mr. Muir testified he was never informed
of any such communication.

The Muirs first learned of the “farm purposes” covenant from their title attorney, who
advised them that their use of the Right of Way would fall within “farm purposes” so long as
they used the property as a farm. The Muirs did not testify that they knew of a “dispute” about
the Right of Way before closing. Mr. Muir testified he did not recall executing a “hold harmless
agreement” related to property access.

The Muirs purchased the Farm Parcel in July 2023 and immediately occupied the
farmhouse. The 2023 Warranty Deed that conveyed the property to the Muirs described the
Farm Parcel as:
Parcel B: A parcel of land containing 85 acres, more or less, situated on the
easterly side of West Shore Road, and accessed thereto over a strip of land,
extending over the easterly side of said highway to the northerly side of said
parcel of land; use of which is restricted to farm purposes.

Ex. 13 at 1.

Ms. Muir lived on the property continuously between July and September 2023. During
that initial period, Ms. Muir encountered Mr. Senesac on the road; they chatted about lake access
and fishing. Mr. Senesac said nothing about any restriction on using the Right of Way to reach
the farmhouse.

In September 2023, the Muirs received the first communication from Mr. Senesac’s
counsel—a letter asserting that Mr. Senesac owned the Right of Way, that the easement was
limited to farm purposes, and that there was “no general right to drive motor vehicles to access
your property for residential purposes.” The letter offered to expand the existing right “in
exchange for a payment.” This was the first time the Muirs heard anyone claim their access to
the farmhouse was restricted. The Muirs refused, taking the position that they did not need Mr.
Senesac’s permission to use the Right of Way as they intended.

When the Muirs purchased the Farm Parcel, it consisted of the farmhouse, a barn, a
henhouse, open hay fields, and woodland. Ex. F. The Muirs immediately began preparing the
property for active farming. They enrolled it in Vermont’s Current Use program. Ex. J. They
engaged a professional forester who created a Forestry Management Plan for the woodland. Ex.
K. They entered a five-year lease with a local farmer to hay the meadows; haying took place in
both 2024 and 2025. Ex. F, J.

The Muirs also purchased farm equipment. Ex. I-1, I-2, I-3, L. They plan to plant an
orchard and a market garden and intend to raise pheasants, sheep, and rabbits once they retire to
the property full-time. Ex. I. Mr. Muir testified that the cost of this litigation has delayed some
of these plans. The Muirs’ intent is to retire to the farmhouse and operate the farm as their
primary occupation.

Mr. Muir testified that if the Muirs had known anyone disputed their right to live in the
farmhouse, they would not have purchased the property at the price they paid, and likely would
not have purchased it at all.

The Muirs use the Right of Way for daily vehicle traffic, grocery trips, friends and family
visits, delivery trucks, and general residential ingress and egress. Ex. 16. The owners of three
parcels sold by Mr. Senesac, Sr., use the Right of Way for residential purposes.

Neither Mr. Senesac nor his father ever granted the Muirs, or any prior owner of the Farm
Parcel, permission to use the Right of Way as a residential driveway.
Conclusions of Law

I. Plaintiff Lacks Standing

For a court to have jurisdiction, the plaintiff must have standing. To have standing, the
plaintiff must “show (1) injury in fact, (2) causation, and (3) redressability.” Brod v. Agency of
Nat. Res., 2007 VT 87, ¶ 9 (quoting Parker v. Town of Milton, 169 Vt. 74, 77 (1998)). To have
standing to bring a claim regarding a property, the plaintiff must have some cognizable legal
right in the property to have been injured. Mr. Senesac lacks standing to enforce the easement
because he does not own the Right of Way and is not benefited by it.

Mr. Senesac claims he owns the Right of Way in fee simple and therefore may enforce
the covenant as a property owner. The Muirs respond that the 1966 deed granted Mr. Senesac’s
parents only an appurtenant easement, that the easement passed with the Benefited Parcel when
Mr. Senesac’s parents conveyed that parcel to third parties, and that Mr. Senesac currently holds
no enforceable interest.

The Court begins with the deed’s plain language. “Our master rule in construing a deed is
that the intent of the parties governs. In ascertaining intent, we must consider the deed as a
whole and give effect to every part contained therein to arrive at a consistent, harmonious
meaning, if possible.” Brault v. Welch, 2014 VT 44, ¶ 11 (quoting DeGraff v. Burnett, 2007 VT
95, ¶ 20). A deed term is ambiguous only if reasonable people could differ as to its meaning. Id.

The 1966 Deed addressed three parcels of property and used distinct verbs for those
parcels. In the introduction to Paragraph 1, the deed states grantors “GIVE, GRANT, SELL,
CONVEY AND CONFIRM” the land described in Paragraph 1. Paragraph 2 “granted” a “20
foot right of way” running east from West Shore Road. Paragraph 3 “conveyed” the “westerly
extension” of that right of way running west to Lake Champlain. A right of way “is generally
defined as a right of passage over another person’s land.” Hunsdon v. Farrar, 128 Vt. 410, 414
(1970). A right of way is generally considered “a type of easement.” Gladchun v. Eramo, 2023
VT 5, ¶ 4 n.3. An easement, in turn, is “an interest in land consisting in the right to use or
control the land . . . for a specific limited purpose.” Id. ¶ 11 (quoting Wagner v. Crossland
Constr. Co., 840 N.W.2d 81 (N.D. 2013)).

The original parties’ use of different words in such close proximity suggests a different
intent for each strip. Standing alone, this distinction creates ambiguity. “If ambiguity exists,
however, the ‘interpretation of the parties’ intent becomes a question of fact to be determined
based on all of the evidence - not only the language of the written instrument, but also evidence
concerning its subject matter, its purpose at the time it was executed, and the situation of the
parties.’” DeGraff v. Burnett, 2007 VT 95, ¶ 20 (quoting Main St. Landing, LLC v. Lake St.
Ass’n, Inc., 2006 VT 13, ¶ 7). The 1968 deed between the same parties and the survey obtained
by Mr. Senesac Sr. 25 years ago remove any doubt.

Extrinsic evidence resolves any confusion regarding the two rights-of-way. The 1968
LaBombard deed stated that the westerly extension described in Paragraph 3 of the 1966 deed
“was intended by them to be and was conveyed in fee simple and should not be construed as
being a mere right of way as described in #2 of the above said Warranty Deed.” Ex. 17
(emphasis added).

This language draws an explicit line. The westerly extension was fee simple. The
eastbound Right of Way described in Paragraph 2 was “a mere right of way,” an easement.

Other extrinsic evidence confirms this reading. The Robenstein survey, prepared for Mr.
Senesac, Sr., around 2000, labeled the strip “Existing 22-foot Right of Way” and did not depict
Mr. Senesac’s father as a fee owner. Had Mr. Senesac, Sr., thought that was a mistake, he could
have asked Mr. Robenstein to fix it. The Court notes that Mr. Senesac, Sr., testified during the
hearing that he believed he had owned the Right of Way. The Court found the survey prepared
for Mr. Senesac, Sr., over 25 years ago more persuasive than his current testimony.

Mr. Senesac, Sr.’s testimony that he and the LaBombards understood him to own the
Right of Way in fee does not overcome the documentary record. The deeds speak for themselves,
and the 1968 clarification deed is dispositive.

Now that it’s been established that the ownership interest granted to Mr. Senesac was an
easement, not fee simple, the Court moves to whether Mr. Senesac now owns any rights to the
easement.

The parties agree that whatever right of way and restrictive covenant were conveyed in
1966 are appurtenant and runs with the land. Pl. Memo at 14; Def. Memo at 11. Critically, “an
appurtenant benefit may not be severed and transferred separately from all or part of the
benefited property.” Restatement (Third) of Property: Servitudes § 5.6 (2000); see Nordlund v.
Van Nostrand, 2007 WL 5313317, at *3 (Vt.).

The Right of Way easement served the Benefited Parcel—the 300-by-150-foot parcel Mr.
Senesac’s parents acquired in 1966 and 1968. Without the Right of Way, those lots had no
access to West Shore Road. The easement was appurtenant to that land.

By 2006, Mr. Senesac’s parents had conveyed the entire Benefited Parcel to third parties.
The appurtenant easement traveled with those conveyances. By the time Mr. Senesac’s father
executed the 2008 Quit Claim Deed, he held no property interest in the right of way – as
discussed above, he did not own the Right of Way itself, and he no longer owned any dominant-
estate land to which the easement attached. Mr. Senesac, Sr., therefore had no easement interest
to convey, and the 2008 deed could not transfer to Mr. Senesac what his father no longer
possessed. See Nordlund, 2007 WL 5313317, at *3 (“An appurtenant easement is incapable of an
existence separate from the dominant estate, and any attempted severance from the dominant
estate must fail.”).

In sum, Mr. Senesac does not own the Right of Way in fee, and all property which
benefited due to the covenant in the 1966 Deed has been conveyed away. Even accepting Mr.
Senesac’s argument that his property abuts the Right of Way and that increased traffic affects
him, proximity alone does not confer standing to enforce a covenant in someone else’s deed. To
enforce a restrictive covenant, a party must hold a legal interest in the burdened or benefited
property. See Rogers v. Watson, 156 Vt. 483, 487 (1991). Mr. Senesac holds neither.
As such, Mr. Senesac lacks standing, and this Court lacks jurisdiction. Brod, 2007 VT
87, ¶ 2. Mr. Senesac’s claims must be dismissed.
II. A Farmhouse Falls Within Farm Purposes Only

If Mr. Senesac had standing, the Court would need to interpret the phrase “farm purposes
only” as it limits the use of the Right of Way. The Court analyzes that phrase below as an
alternative basis for denying relief to Mr. Senesac.

“The interpretation of an express easement is a question of law.” Gladchun v. Eramo,
2023 VT 5, ¶ 12 (quoting Post & Beam Equities Grp., LLC v. Sunne Vill. Dev. Prop. Owners
Ass’n, 2015 VT 60, ¶ 56. The essential question when looking at a deed regarding an easement
is the intent of the parties when they created the easement. Id. (quoting VTRE Invs., LLC v.
MontChilly, Inc., 2020 VT 77, ¶ 23).

The parties to the 1966 deed created the right-of-way easement. Courts begin with the
plain language of the deed, as that is generally the best way to find the intent of the parties. Id.
(quoting Kipp v. Chips Est., 169 Vt. 102, 105). A court will implement the plain language if the
deed is not ambiguous. Ambiguity exists when reasonable minds could differ on the meaning.

The 1966 deed states that the grantors and their assigns “have the right to the joint use of
this right of way for farm purposes only.” The deed does not define “farm purposes.” The
question concerns whether “farm purpose only” includes residential access to a farmhouse
currently on the property of the successor in title of the grantor. Farm means “to cultivate land;
to conduct the business of farming.” Black’s Law Dictionary, Farm (12th ed. 2024). Purpose
means “an objective, goal, or end; specif., the business activity that a corporation is chartered to
engage in.” Black’s Law Dictionary, Purpose (12th ed, 2024). In the context of the right-of-way,
it means the road may only be used to carry out the objective of cultivating the land on the
property.

The definition of farm purposes could reasonably include housing to facilitate land
cultivation, since farming requires someone to work the land. However, reasonable people could
also interpret that phrase to mean only the actual cultivation of the land. Given these two
reasonable interpretations, the Court finds the language ambiguous and resorts to extrinsic
evidence to discern its meaning.

“When a covenant is ambiguous, the question of what the parties intended to prohibit is a
question of fact to be determined on all the evidence.” Mann v. Levin, 2004 VT 100, ¶ 15. “The
court must give effect to the intention of the parties if it can be gathered from the language used
when interpreted in connection with, and in reference to, the subject matter and purpose sought
to be accomplished at the time the instrument was executed.” Id. (quoting McDonough v. W.W.
Snow Constr. Co., 131 Vt. 436, 441 (1973)).
While the Court looks first to the circumstances at the time of the covenant’s creation, it
also considers how the easement may reasonably adapt to changed conditions. An easement
“may be adapted and reasonably expanded to preserve the intended use.” VTRE Invs., LLC v.
MontChilly, Inc., 2020 VT 77, ¶ 24 (citing Post & Beam Equities Grp., LLC v. Sunne Vill. Dev.
Prop. Owners Ass’n, 2015 VT 60, ¶ 57). The intended use of the Right of Way was to allow
what was necessary to tend to and cultivate the farm on the Farm Parcel. In 1966, that meant hay
wagons and cattle because the LaBombards had a home on a different nearby parcel. But this
fact is not dispositive, especially in light of other parties’ use of the Right of Way for residential
purposes and Mr. Senesac’s statements to Mr. Gaboriault that the restriction was intended to
prevent subdivision, not the construction of one home.

The definition of “farm” under Vermont law is broad. A “farm” is “a parcel of land
devoted primarily to farming,” and “farming” includes “the cultivation or other use of land for
growing food, fiber, Christmas trees, maple sap, or horticultural and orchard crops” as well as
“the raising, feeding, or management of livestock, poultry, fish, or bees.” 10 V.S.A. § 6001(22),
(31). The Muirs’ activities, leasing pastureland for haying, enrolling in Current Use, obtaining a
Forestry Management Plan, purchasing farm equipment, and planning to raise livestock and
cultivate an orchard, fall squarely within this statutory definition.

A farmhouse serves the farmer. Other jurisdictions have recognized that housing the
person who farms the land is inherently related to the farm’s purpose. See Blauvelt v. Bd. of
Cnty. Comm’rs of Leavenworth Cnty., 227 Kan. 110, 114, 605 P.2d 132 (1980) (holding that on a
farm-owner-occupied farm, “the home of the farmer” falls within “agricultural purposes”); Byrd
v. Stringer, 295 Or. 311, 666 P.2d 1332 (1983) (holding that a property with a dwelling unit still
serves “farm use” so long as the land can still be farmed profitably). The Muirs do not own any
other property nearby. Without a residence on the Farm Parcel, farming the land would be
impractical, if not impossible.

Vermont courts also construe covenants narrowly and “do not lightly read implied terms
into deeds that restrict the scope of ownership.” Rawley v. Heymann, 2023 VT 64, ¶ 11; Creed v.
Clogston, 2004 VT 34, ¶ 17 (“restrictions will not be extended by implication to include
anything not clearly expressed, and doubts must be resolved in favor of the free use of land”).
Reading “farm purposes” to exclude the farmer’s access to the farmhouse where the farmer
resides while operating the farm would extend the covenant’s restriction beyond what the parties
clearly expressed. The covenant restricts the Right of Way to “farm purposes”—it does not say
“agricultural equipment only” or “crop and livestock transport only.” A farmhouse occupied by
an active farmer who cultivates the land is a reasonable part of the farm operation, and accessing
it serves a farm purpose. Mr. Senesac cannot reasonably claim that the Right of Way can
provide access to three homes, but that providing access to a fourth is unduly burdensome.

The Court therefore concludes that “farm purposes” encompasses residential access to a
farmhouse when the occupant actively farms the land. Because the Muirs actively farm their 80-
acre parcel – having leased pastureland, enrolled in Current Use, obtained a Forestry
Management Plan, and purchased farm equipment – their access to the farmhouse serves a “farm
purpose” within the meaning of the covenant.
However, this holding is narrow. It does not authorize unrestricted residential use of the
Right of Way by any future owner, regardless of farming activity. The covenant limits the Right
of Way to “farm purposes only,” and this Court’s interpretation ties residential access to active
farming. If the Farm Parcel ceased to operate as a farm, residential-only access over the Right of
Way would exceed the covenant’s scope.

III. Defendant’s Affirmative Defenses Bar Plaintiff’s Claim

Although the Court concludes Mr. Senesac does not have standing, and the Muirs’ use
falls within farm purpose only restriction, the Court still considers the Muirs’ equitable defenses
as alternative bases for judgment in this case. The Muirs raised three affirmative defenses: (1)
laches, (2) equitable estoppel, and (3) waiver – each of which is a distinct equitable defense with
their own elements of proof. Based on the discussion below, Mr. Senesac’s claim would also fail
due to laches and equitable estoppel/implied waiver.

A. Laches

“Laches is the failure to assert a right for an unreasonable and unexplained period of time
when the delay has been prejudicial to the adverse party, rendering it inequitable to enforce the
right.” Stamato v. Quazzo, 139 Vt. 155, 157 (1980). The doctrine requires both an unexcused
delay and resulting prejudice. Id. (“Laches does not arise from delay alone, but from delay that
works disadvantage to another”). The Court exercises broad discretion in applying laches.
Chittenden v. Waterbury Ctr. Cmty. Church, Inc., 168 Vt. 478, 484 (1998).

1. Unreasonable and Unexplained Delay

Mr. Senesac knew of the “farm purposes” covenant long before the Gaboriaults began
building the farmhouse in 2019. He believed he had the right to prevent non-farm use of the
Right of Way. Yet he never objected when he learned the Gaboriaults planned to build a home;
not during the roughly two years of construction and not during the several years the Gaboriaults
lived in the farmhouse using the Right of Way daily for residential access.

Mr. Senesac did more than stay silent: he actively helped build the very farmhouse whose
residential use he now challenges, and the Gaboriaults paid him for that work. When he
discussed the covenant with Gaboriault, he characterized its purpose as preventing subdivision,
not as a bar on residential access.

Mr. Senesac waited approximately five years, from the start of construction in 2019 until
filing this action, before asserting his claimed right. His only stated reason for not raising this
issue with the Gaboriaults is that he “did not believe he could control” what the Gaboriaults built
on their own land. However, that explanation does not address why he never objected to the
Gaboriaults’ use of the Right of Way to construct the house and the Gaboriaults’ subsequent
daily residential use of the Right of Way, which is the precise conduct he now seeks to prevent
the Muirs from doing. The delay was unreasonable and unexplained.
The Vermont Supreme Court confronted a similar fact pattern in Mann v. Levin, with one
key difference. 2004 VT 100. There, the court rejected a laches defense because the neighbor
“immediately informed [the homeowner] of their concerns when it became apparent to them that
her building would violate the covenant.” Id. at ¶ 26. In that instance, the plaintiff raised the
issue directly with the defendant as soon as she saw a truss placed on the home that exceeded the
height restriction.

Mr. Senesac did the opposite. He watched construction start, helped with it, accepted
payment for assisting with it, and said nothing to anyone about enforcing the covenant for years.
When he finally raised the issue, he did not speak to the Muirs or their agents; he spoke to
Gaboriaults’ lawyer and yelled something vague at their realtor.

2. Prejudice to the Defendants

Mr. Senesac’s silence prejudiced the Muirs in concrete ways. The Gaboriaults built and
occupied the farmhouse for years without any challenge to their use of the Right of Way. They
then listed and sold the property as a farm with a farmhouse, without disclosing the covenant
dispute. The Gaboriaults because, from their perspective, based on Mr. Senesac’s conduct and
silence, no dispute existed.

The Muirs purchased the property in reliance on the observable facts: the Gaboriaults had
built a farmhouse, lived in it for years, and used the Right of Way daily for residential access
without objection. Their title attorney confirmed there would be no issues as long as they
continued to use the property for farm purposes, which was their plan. The Muirs paid the price
of a property with an accessible farmhouse. Mr. Muir testified that they would not have
purchased the property—or at least would not have paid the price they did—if they had known of
an active dispute about their right to access the farmhouse.

Had Mr. Senesac asserted his claim when construction began in approximately 2019, the
Gaboriaults may not have ever built a home. Had Mr. Senesac raised the issue to the Gaboriaults
while they were using the home between 2020-2023 before they listed the home for sale, the
Gaboriaults would have had an obligation to disclose it to the Muirs before they purchased the
home. Instead, Mr. Senesac testified that he chose to wait until new people bought the home to
sort it out with them.

Mr. Senesac’s first communication to the Muirs came via his attorney’s September 2023
letter—two months after the Muirs had purchased the property and occupied the farmhouse—and
that letter sought “payment” in exchange for an expanded right of way. The timing suggests Mr.
Senesac sought a financial windfall rather than the vindication of a long-held right.

Regardless of Mr. Senesac’s motivation for raising the issue with the Muirs, the fact
remains that his delay greatly prejudiced the Muirs. They purchased a property with no known
property disputes at full price. Laches bars his claim.
B. Equitable Estoppel/Implied Waiver

The Muirs also raise equitable estoppel and waiver as affirmative defenses. “A ‘waiver’
is the intentional relinquishment or abandonment of a known right, and the act of waiver may be
evidenced by express words as well as by conduct.” Lynda Lee Fashions, Inc. v. Sharp Offset
Printing, Inc., 134 Vt. 167, 170 (1976). “To succeed on an implied waiver theory, [the Muirs]
must show some act or conduct on the part of [Mr. Senesac] that was unequivocal in character.”
Anderson v. Coop. Ins. Cos., 2006 VT 1, ¶ 11. The Court does not find an express waiver here.
However, the Court will analyze the Muirs’ defense as a claim for equitable estoppel or implied
waiver.

Vermont courts have recognized that implied waiver “blurs the lines between waiver and
estoppel” and requires the party asserting it to “show that she honestly and reasonably believed,
based on the defendant’s conduct, that the defendant would forego asserting some right to which
it was otherwise entitled, and that the plaintiff acted to her detriment in reliance on that belief.”
Anderson, 2006 VT 1, ¶ 11 (quoting Brown v. Taylor, 120 N.M. 302, 901 P.2d 720, 723–24
(1995)); see Restatement (Third) of Property: Servitudes § 7.6, Reporter’s Note (noting that
waiver is “sometimes used to describe situations in which the rule [for modification of servitudes
by estoppel] would apply”). The Court will analyze these two concepts under the equitable
estoppel framework.

To establish equitable estoppel, the Muirs must show: “(1) the party to be estopped must
know the facts; (2) the party being estopped must intend that his conduct shall be acted upon or
the acts must be such that the party asserting the estoppel has a right to believe it is so intended;
(3) the party asserting estoppel must be ignorant of the true facts; and (4) the party asserting
estoppel must rely on the conduct of the party to be estopped to his detriment.” Wesco, Inc. v.
City of Montpelier, 169 Vt. 520, 524 (1999); In re Langlois/Novicki Variance Denial, 2017 VT
76, ¶ 12; accord Restatement (Third) of Property: Servitudes § 7.6 (2000) (servitude modified
when benefit holder communicates, by conduct, words, or silence, an intent not to enforce, and
burdened party foreseeably and detrimentally changes position in reliance). Vermont already
recognizes that conduct alone can extinguish a deeded easement entirely through abandonment, a
far more drastic result than modification. See Lague, Inc. v. Royea, 152 Vt. 499, 502–03 (1989)
(holding that acts “conclusively and unequivocally” manifesting intent to relinquish an easement
suffice without any showing of reliance). If conduct can destroy a servitude, it can certainly take
the more modest step of narrowing one’s scope.

Because the Muirs did not know anything about Mr. Senesac’s actions at the time the
house was constructed, a threshold question here is whether the Muirs, as successors in interest
to the Gaboriaults, may rely on Mr. Senesac’s conduct toward the Gaboriaults. They can. When
estoppel modifies or extinguishes a servitude, that change runs with the land and binds all
successors in interest. Restatement (Third) of Property: Servitudes § 7.6 (2000); see Assad v.
Sea Lavender, LLC, 95 Mass. App. Ct. 689, 696–97 (2019) (holding that predecessor’s
modification of easement by estoppel bound successor who took title with knowledge of the
arrangement); Kienzle v. Myers, 167 Ohio App. 3d 78, 84–85 (2006) (holding that easement by
estoppel created by predecessor’s conduct bound successor in title); see Bruno v. Zilvitis, No.
205-4-11 WRCV, 2014 WL 10321334, at *6 (Vt. Super. Oct. 1, 2014) (citing § 7.6 in analyzing
whether conduct extinguished a prescriptive easement); Daylight Lot Major Subdivision
Amendment Application, Nos. 22-CV-01101, 22-ENV-00026, 2023 WL 2387875, at *5–6 (Vt.
Super. Feb. 27, 2023) (analyzing servitude claims under Restatement §§ 2.9 and 2.10). The
Court therefore examines whether Mr. Senesac’s conduct toward the Gaboriaults created an
estoppel, and if it did, that estoppel benefits the Muirs.

All four Wesco elements are satisfied in this case. Mr. Senesac knew of the “farm
purposes” covenant, believed it gave him the right to restrict how others used the Right of Way,
and knew the Gaboriaults planned to build a home on the Farm Parcel and would use the Right
of Way to reach it. Rather than assert his claimed right, he helped build the farmhouse, accepted
payment for the work, and told Mr. Gaboriault the covenant existed to prevent subdivision, not to
bar residential access. He watched construction and delivery vehicles use the Right of Way for
roughly two years and never objected. He visited the completed farmhouse multiple times and
maintained a friendly relationship with the Gaboriaults throughout their residence in the
farmhouse. These acts went well beyond passive acquiescence; under both Wesco and § 7.6,
they communicated that Mr. Senesac did not regard the Gaboriaults’ residential use of the Right
of Way as a violation.

The Gaboriaults, for their part, did not know that Mr. Senesac claimed the covenant
barred residential access. They knew the covenant existed but believed, based on Mr. Senesac’s
own statements and conduct, that a farmhouse fell within “farm purposes.” They relied on that
understanding to their detriment: they built the farmhouse, invested substantial time and money
in construction, occupied it for three years, and sold the property without disclosing any
covenant dispute because, from their perspective, none existed.

Had Mr. Senesac objected when construction began, the Gaboriaults might never have
built the home. Their decision to build a farmhouse that depended on the Right of Way for
access placed that access out of their control. See Kienzle, 167 Ohio App. 3d at 85 (holding that
“prejudice” in easement-by-estoppel analysis means a change in position that places the relying
party’s interest “out of her control,” not that the opposing party actually enforced the right).

The Gaboriaults’ reliance far exceeds the threshold Vermont courts have required.2 In
Bruno, the court rejected an estoppel defense because the defendants showed no detrimental
reliance beyond maintaining the status quo. 2014 WL 10321334, at *6. In Daylight Lot, the
court found insufficient change of position where the neighbors’ reliance consisted only of
allowing trees to be cut on their property. 2023 WL 2387875, at *7. The Gaboriaults’
investment in building a farmhouse, occupying it for years, and selling the property without
disclosing a covenant dispute dwarfs either of those cases.

2 Determining whether a benefactor abandoned a servitude does not require reliance. See
Lague, 152 Vt. 499, 502–03 (1989) (highlighting reliance is not necessary for abandonment).
The remedy for abandonment of an easement is extinguishment of the easement – a much more
severe outcome than modification of an easement, which is the remedy for estoppel. The Court
notes the anomaly of having to prove less to extinguish an easement than to modify it.
Nonetheless, the Court adheres to Vermont’s precedent, which finds reliance required in estoppel
cases.
Mr. Senesac’s conduct estopped him from enforcing the “farm purposes” covenant to bar
residential access to the farmhouse. Put differently, his actions impliedly waived his right to
enforce. That modification of the restrictive covenant now runs with the land. The Muirs, as
successors in interest to the Gaboriaults, inherit the benefit of that estoppel.

The Court’s analysis of Mr. Senesac’s conduct under the estoppel context, therefore,
applies with equal force here.

Electronically signed on May 28, 2026, pursuant to V.R.E.F. 9(d).