Kinneston v. Raiche

Vermont Superior Court
Filed 08/18/25
Rutland Unit

VERMONT SUPERIOR COURT
Rutland Unit

83 Center St

Rutland VT 05701

802-775-4394
www.vermontjudiciary.org

CIVIL DIVISION
Case No. 24-CV-003 16

Jeffrey Kinneston et al v. Jean Raiche

RULING ON MOTIONS FOR SUMMARY JUDGMENT

This action involves a dispute over ownership of 2.6 acres of open land located off West Road
in the town of Ira. Plaintiffs Jeffery and Todd Kinneston, co-executors of the estate of their late father,
James Kinneston, seek a declaration that the land was properly conveyed to Plaintiffs’ parents, such
that when their father—having survived his wife—passed away, the land became part of their father’s
estate. Plaintiffs alternatively claim that, pursuant to the doctrine of adverse possession, their father’s
estate is the lawful owner of the premises. Plaintiffs now move for summary judgment on their claim
for a declaratory judgment, and the Defendant, Jean Marie Raiche, moves for summary judgment on
both of Plaintiffs’ claims.

Plaintiffs are represented by Christian S. Chorba, Esq. and Christopher D. Roy, Esq. Defendant
is represented by Jeffrey P. White, Esq. For reasons that follow, Defendant’s motion is granted, and
Plaintiffs’ motion is denied, as to Count I of Plaintiffs’ Complaint (declaratory judgment).

Defendant’s motion as to Count II of Plaintiffs’ Complaint, the claim for adverse possession, is denied.

Standard of Review

“Summary judgment is proper only where the material undisputed facts show that the moving
party is entitled to judgment as a matter of law. The nonmoving party is entitled to all reasonable
doubts and inferences. In determining whether there is a genuine issue of material fact, [the court] will
accept as true the allegations made in opposition to the motion ... so long as they are supported by
affidavit or other evidentiary material.” Morisseau v. Hannaford Bros., 2016 VT 17, 4 12 (citations
and quotations omitted); V.R.C.P. 56(a).

Undisputed Facts

The following facts, except where noted, appear undisputed in the summary judgment record.

On May 15, 1986, Clarence Fish, Plaintiffs’ great maternal uncle, signed a hand-written
document that was entitled “Temporary Receipt and Warranty Deed.” (Ex. C to Def.’s Rule 56(c)(2)
Statement (June 19, 2025).) The body of that writing reads as follows:

Know AIl Men by These Presents that I, Clarence C. Fish of lra, Vermont,
within County of Rutland for the consideration of $1000 Paid in full have thereby sold
the section of meadow land and side hill boardering [sic.] their present property shown

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on Page 58 Warranty Deed dated 6-14-78 and recorded by Town Clerk Alice Perry Ira
Vermont Aug. 30, 1978.

This above mentioned property including the previously purchased property has
been staked out and is in the process of being officially surveyed by Michael
Engineering, Plymouth Vermont.

James L and Marie F Kinneston will bear the cost of this survey of their
property.

[Signature of Clarence C. Fish]
Clarence C. Fish

Witnessed in The
Presence of [Signature of Alice Raiche]

[Signature of James L. Kinneston]

(Id.) Alice Raiche was the Town Clerk of the Town of Ira from 1981 to 1996. (Def.’s Rule 56(c)(2)
Statement, 7 3.) Marie F. Kinneston, the wife of James L. Kinneston and the mother of Plaintiffs, was
the niece of Clarence Fish. (/d. J 8.)

In August of 1986, Clarence Fish, as well as James L. Kinneston and Marie F. Kinneston, each
signed a pre-printed form entitled “DEPOSIT RECEIPT AND SALES AGREEMENT.” (Ex. D to
Def.’s Rule 56(c)(2) Statement.) This document acknowledged receipt of one thousand dollars, paid
by the Kinnestons as the purchase price of a property in Ira of “3 acres (more or less) southerly of the
West Road, easterly of the present barns, and bordering lands of Clarence Fish and the Purchaser.”
(Id.) Near the very bottom of the document, directly above the signature of Clarence Fish, appears a
typewritten statement: “THE UNDERSIGNED SELLER ACKNOWLEDGES RECEIPT OF A COPY
HEROF.” (/d.)

Both of these above-described writings—the Temporary Receipt and Warranty Deed, and the
Deposit Receipt and Sales Agreement—were recorded in the land records of the Town of Ira roughly
six years after their execution, on May 7, 1992. (Def.’s Rule 56(c)(2) Statement, { 22.)

On March 26, 1988, Clarence Fish signed a type-written document, entitled “Warranty Deed,”
which stated that Mr. Fish (identified as the “survivor” and “widower” of Edith B. Fish):

do[es] freely GIVE, GRANT, SELL, CONVEY AND CONFIRM unto...
CLARENCE C. FISH, ALICE ANN RAICHE, BEVERLY JEAN SESOW and
CAROL LOU LONG, as joint tenants with right of survivorship, and their heirs and
assigns forever, a certain piece of land in the Town of Ira, County of Rutland and State
of Vermont...

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(Ex. B to Def.’s Rule 56(c)(2) Statement.)'! Notably, the conveyed premises were expressly defined as
excluding lands conveyed in 1978 to James and Marie Kinneston (as well as other prior conveyances
of record), but made no similar exclusionary reference to any instruments or conveyances to the
Kinnestons in 1986. (/d.) Consistent with its title, this Warranty Deed also included a covenant from
the grantor to grantees, stating that the grantor had good title and right to, and was the sole owner of,
the conveyed premises, and that the grantor would “warrant and defend the same against all lawful
claims whatever.” (/d.) At the very bottom of this document, below the signature denoted as
“Clarence C. Fish” and two other signatures denoted as “Witness,” there appeared the following:

STATE OF VERMONT
COUNTY OF RUTLAND, SS

At Rutland, this 28" day of March 1988, CLARENCE C. FISH personally
appeared, and he acknowledged this instrument, by him sealed and subscribed to be his
free act and deed.

Before me, [Signature]
Notary Public

(Id.) On April 12, 1988, this Warranty Deed was recorded in the land records of the Town of Ira.
(Def.’s Rule 56(c)(2) Statement, J 16.)

By early September of 1997, two of the four grantees under the 1988 Warranty Deed—
Clarence Fish and Alice Ann Raiche—had passed away, leaving Beverly Sesow and Carol Lou Long
(Defendant’s aunts) as the two surviving joint tenants. On July 7, 2000, Ms. Sesow and Ms. Long both
signed a quit-claim deed, conveying the entire “Clarence Fish” parcel (as granted by him in 1988) to
the Defendant, Jean Marie Raiche. (Pls.’ Rule 56(c)(2) Statement, § 2.)? That quit-claim deed was
recorded in the land records of the Town of Ira on July 21, 2000. Ud.)

James Kinneston passed away in January of 2023, and Plaintiffs were named executors of his
estate.

Analysis

I. Plaintiffs’ Count I (Declaratory Judgment Regarding Title)

The parties’ cross-motions on Count I of Plaintiffs’ Complaint presents a contest between
competing lines of supposed legal title. Plaintiffs argue that in 1986, Clarence Fish duly granted

' The named grantees, other than Mr. Fish himself, were each the daughters of Clarence and Edith
Fish. (Def.’s Rule 56(c)(2) Statement, {] 2.)

2 The parties do not dispute that the quit-claim deed at least purported to convey to Defendant the 2.6
parcel of open lands that is at the center of this litigation. (See Pls.’ Rule 56(c)(2) Statement, { 2.) The
parties disagree, as a legal matter, whether the quit-claim deed included the disputed parcel. (/d.)
Plaintiffs’ legal position is that the parcel had already been conveyed to James and Marie Kinneston in
1986 under the Temporary Receipt and Warranty Deed, and perhaps under the Deposit Receipt and
Sales Agreement, as well.

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ownership of the disputed 2.6 acres to James and Marie Kinneston under the Temporary Receipt and
Warranty Deed, and perhaps as well under the Deposit Receipt and Sales Agreement. They argue that,
despite the 1988 Warranty Deed purporting to convey the lands owned by Clarence Fish, including the
2.6 acre disputed parcel, to Clarence Fish and his three daughters as joint tenants, that parcel was not
actually included in that conveyance, as it had already been conveyed to the Kinnestons under the 1986
instruments. Similarly, Plaintiffs maintain that the quit-claim deed in July of 2000, from the surviving
joint tenants to Defendant, did not convey the disputed parcel to Defendant, since it had been
previously conveyed to the Kinnestons under the 1986 instruments.

Defendant argues that the 1986 instruments are invalid and without effect. First, Defendant
maintains that the language of the 1986 instruments shows that neither constituted a valid conveyance
of real estate. Second, assuming the 1986 instruments were valid conveyances in substance, they were
nonetheless invalid under a Vermont statute requiring evidence that the grantor of real property
acknowledged before a qualified official that the conveyance was his free act and deed.

The Court finds, first, that there are no facts material to the adjudication of Count I that are in
genuine dispute. While it may appear from Plaintiffs’ Rule 56(c)(2) Statement, for example, that there
are disputes as to facts, in actuality the parties are in disagreement as to the legal effect of written
instruments and recordings that are not disputed.

Second, without reaching Defendant’s arguments that the 1986 instruments by their terms were
not deeds of conveyance, the Court concludes that they were invalid for clear lack of proof of
acknowledgment by the grantor. The instruments were thus ineffective and did not give any sort of
notice to the grantees under the 1988 Warranty Deed—or to Defendant as grantee under the 2000 quit-
claim deed—of a prior, valid conveyance of title (regarding the parcel in dispute).

In 1986, the statute regarding conveyances of interests in real estate provided as follows:

Deeds and other conveyances of lands, or of an estate or interest therein, shall be signed
by the party granting the same and signed by two or more witnesses and acknowledged
by the grantor before a town clerk, notary public, master in chancery, county clerk or
judge or register of probate and recorded at length in the clerk’s office of the town in
which such lands lie. Such acknowledgment before a notary public shall be valid
without his official seal being affixed to his signature.

27 V.S.A. § 341 (as amended by 1973, No. 249 (Adj. Sess.), § 84). The next statutory subsection,
entitled “Acknowledgment and recording required,” then provided as follows:

A deed of bargain and sale, a mortgage or other conveyance of land in fee simple or for
term of life, of a lease for more than one year from the making thereof shall not be
effectual to hold such lands against any person but the grantor and his or her heirs,
unless the deed or other conveyance is acknowledged and recorded as provided in this
chapter.

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27 V.S.A. § 342; see 2017, No. 160 (Adj. Sess.), § 3 (amending the foregoing by deleting “as provided
in this chapter’’).?

These statutory provisions do not specify what particular language must be used to show that
there was an acknowledgment by a grantor before an authorized official. What is plain from the
statute, however, is that a grantor’s mere signature on an instrument of conveyance, witnessed by two
persons, is not itself proof of the grantor’s acknowledgment before a statutorily designated official. A
contrary reading of the statute—in which a grantor’s signature and an acknowledgment before an
authorized official are one and the same, or are co-extensive of each other—would render a portion of
the statute surplusage. “When construing statutory provisions, we presume that the Legislature
inserted [the statutory language] advisedly, and with intent that it should be given meaning and force
and we will not construe the language in a way that renders a significant part of it pure surplusage.”
State of Vermont Agency of Natural Resources v. Parkway Cleaners, 2019 VT 21, § 24, 209 Vt. 620
(citations and quotations omitted). Furthermore, Sections 341 and 342 appear in subchapter 2 of
chapter 5 of Title 27, and subchapter 2 is entitled “Execution and Acknowledgment.” (Emphasis
added). See State v. Hurley, 2015 VT 46, 7 11, 198 Vt. 552 (“We have long held that the title of a
chapter, subchapter, or section, as well as the statute's purpose, may be considered in interpreting a
statute.”). This title supports the conclusion that the grantor’s signature or “execution” of a deed is a
distinct requirement from an “acknowledgment” by the grantor before a designated official.

Further, the authorities hold that an “acknowledgment” by a grantor of real estate must in some
way amount to a sworn admission or declaration, made before a qualified official, that the instrument
of conveyance was signed voluntarily by the grantor, or constitutes his “free act and deed.” See 2
Patton & Palomar on Land Titles § 356 (3d ed.) (“The acknowledgment of an instrument is the act of
the grantor in going before an officer designated by statute and declaring that the grantor executed the
instrument as a voluntary action[.]”); Wood v. Cochrane, 39 Vt. 544, 548 (1866) (authorized official’s
signed certificate, stating that a named party “acknowledged the above instrument to be his free act and
deed” shows “upon its face” that party named “acknowledged the deed”); In re Reznikov, 548 B.R.
606, 614 (Bankr. D. Mass. 2016) (“‘An acknowledgment is the formal statement of the grantor to the
official authorized to take the acknowledgment that the execution of the instrument was his free act
and deed.’” (quoting McOuatt v. McOuatt, 69 N.E.2d 806, 810 (Mass. 1946)); L.S. Tellier, Annotation,
“Sufficiency of certificate of acknowledgment,” 25 A.L.R.2d 1124 (1952) (“[An acknowledgment] is a
public declaration by the grantor that the act evidenced by the instrument is his act and deed. The
authentication of the officer consists in a certificate, generally attested by his official seal, stating in
substance that the person named therein was known to and appeared before him and acknowledged the
instrument to be his act and deed.”). For example, the signed statement by the notary public that
appears at the very bottom of the 1988 Warranty Deed constitutes proof of acknowledgment, since it
states that the grantor, Clarence Fish, personally appeared and acknowledged to the notary public that
the signed instrument was Mr. Fish’s “free act and deed.” (Ex. B to Def.’s Rule 56(c)(2) Statement.)

Here, the Temporary Receipt and the Deposit Receipt do not include (or attach) any certificate
or statement, signed by a designated official, indicating that Clarence Fish personally appeared before
that official and declared that his signature on either 1986 instrument was his free act and deed.

3 A separate statutory subsection then provided that “conveyances of real estate, heretofore made and
executed according to former laws and usages in this State, shall be valid and effectual.” 27 V.S.A.
§ 347. Thus, the Court’s inquiry focuses on whether supposed conveyances were valid according to

laws that applied at the time of the supposed conveyances.
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Plaintiffs argue that the signature of Alice Raiche, the Town Clerk at the time, should be deemed
sufficient proof of the grantor’s acknowledgment. Yet, while Alice Raiche witnessed Clarence Fish’s
signature, there is no signed statement or certificate from Ms. Raiche indicating that Mr. Fish affirmed
to her that his signature on the Temporary Receipt was affixed voluntarily. Cf: Reznikov, 548 B.R. at
616-17 (witness affirming a grantor’s signature affirms that the signature was genuine but does not
attest to the voluntariness of the execution). The statute requires two witnesses and an
acknowledgment. 27 V.S.A. § 341. The instrument simply does not contain the acknowledgment.
Plaintiffs cite no cases holding that a witnessing signature made by a person who is authorized to
receive an acknowledgment counts the same as that person’s signed statement indicating that the
grantor personally acknowledged to the official that his signature on the deed was voluntary.

Moreover, Ms. Raiche did not indicate, below or adjacent to her signature as witness, that she
was signing the instrument in her capacity as the Town Clerk of Ira. That further confirms that Ms.
Raiche’s signature alone does not suffice as proof that the grantor acknowledged to a designated
official that his signature on the deed was his own free act. After all, a title examiner is not presumed
to know that a signature of “Alice Raiche,” without any notation of her office or capacity, was a
signature by one of the officials designated under 27 V.S.A. § 341 to receive a grantor’s
acknowledgment. That she was Town Clerk in 1986 is not disputed today, but that does not suffice to
show that her signature was alone proof of a grantor’s acknowledgment to an official authorized to
receive such an acknowledgment.

This clear lack of acknowledgment makes the 1986 instruments invalid and insufficient to
provide notice of prior title to subsequent purchasers. “It is black letter law in Vermont that an
unacknowledged deed can have no effect but as an agreement between the parties.” Jn re Davis, 109
B.R. 633, 638 (Bankr. D. Vt. 1989) (citing Vt. Accident Ins. Co. v. Fletcher & Fletcher, 87 Vt. 394,
397 (1914)); see Lakeview Farm, Inc. v. Enman, 166 Vt. 158, 164 (1997) (“A deed that is improperly
witnessed and acknowledged is invalid.” (citing Day v. Adams, 42 Vt. 510, 515 (1869)); Pennock v.
Goodrich, 104 Vt. 134, 139 (1932) (unacknowledged deed is not constructive notice to subsequent
purchasers of prior title); Patton & Palomar § 356 (“If the acknowledgment is lacking or is invalid, the
record is an insufficient link in the chain of title, unless it has been legalized by a curative act, because,
with few exceptions, it does not constitute constructive notice[.]”); Jn re Warner, No. 5:11-cv-105,
2011 WL 2711422, at *3 (D. Vt. Jul. 12, 2011) (same, citing inter alia, Patton & Palomar § 356);
Wood, 39 Vt. at 549-50.

This means that the grantees under the 1988 Warranty Deed, and Defendant as the grantee
under the 2000 quit-claim deed, were purchasers without constructive notice of any prior title. Stated
differently, the supposed deeds from 1986, because they were unacknowledged, were not “effectual to
hold such lands [purportedly conveyed by them] against any person but the grantor and his heirs.” 27
V.S.A. § 342. Further, the six-year delay in the recording of the 1986 instruments does not appear
especially pertinent, since a more timely recording (in 1986, for example) would only have revealed to
a title examiner in 1988 a recorded document that was clearly missing an acknowledgment, and was
therefore invalid as prior title. By that same logic, when Defendant took title under the quit-claim deed
in July of 2000, her title search at that time could only have discovered the 1986 instruments that were
unacknowledged, therefore invalid and ineffectual as prior title. 4

4 Plaintiffs allege, without admissible evidence in support, that Alice Raiche as Town Clerk

deliberately refused to record the 1986 instruments for six years, before finally recording them in May
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Plaintiffs argue in the alternative that, even assuming the 1986 instruments were
unacknowledged, they nonetheless are effectual against Defendant’s supposed title, since 27 V.S.A.
§ 342 recognizes that unacknowledged conveyances are still effectual against claims to title that are
asserted by “the grantor and his heirs.” Yet, Defendant did not take her title to the disputed parcel by
or through any inheritance from Clarence Fish, or any other person. Defendant may be a successor in
interest or successor in title, to title owned previously by Mr. Fish, but she is not his heir, as
contemplated by Section 342. Indeed, this litigation is certainly not a dispute between the original
parties to the 1986 instruments, or their respective heirs. Plaintiffs, as heirs to the supposed grantees
under the 1986 instruments, are claiming title not as against the grantor (Clarence Fish), or anyone
claiming title as a result of an inheritance of the disputed parcel from Mr. Fish. Rather, Plaintiffs are
asserting title as against subsequent other purchasers, such as Defendant. Accordingly, the exception
in Section 342 does not apply here.

Plaintiffs also claim that their title is now valid, by dint of a curative statute, 27 V.S.A.
§ 348(a), that was enacted in 1977. That statute provides as follows:

When an instrument of writing shall have been on record in the office of the clerk in the
proper town for a period of 15 years, and there is a defect in the instrument because it . .
. was not sealed, witnessed, acknowledged, [or] validly acknowledged, . . . the
instrument shall, from and after the expiration of 15 years from the filing thereof for
record, be valid.

Plaintiffs observe that the 1986 instruments were recorded in 1992, which means that with the passage
of 15 years, the defect of their missing acknowledgment was fully cured, in 2007. This argument,
however, ignores that the statutory cure only takes effect “from and after the expiration of 15 years
from the filing thereof for record,” not before. 27 V.S.A. § 348(a) (emphasis added). The statute does
not apply retroactively. Cf 2 Patton & Palomar on Land Titles § 366 (3d ed.) (“So long as their intent
to apply retroactively is clear, [curative acts] may be so applied.”).

Thus, until 2007, the 1986 instruments remained invalid as unacknowledged. They were of
record beginning in 1992, but were insufficient to give good faith purchasers before 2007 any notice of
prior title. Indeed, even assuming that the 1986 instruments had been recorded in May or August of
that year, their missing acknowledgments would not have been statutorily cured until 2001, which is
still a year after the July 2000 quit-claim deed to Defendant. Accordingly, the curative statute does not
give Plaintiffs valid, prior title, as against the claims to title asserted by Defendant.

For these reasons, the Defendant is entitled to judgment on this claim, and Plaintiffs are not
entitled to judgment.

II. Count Two (Plaintiffs’ Adverse Possession Claim)

Plaintiffs also assert that they have legal title to the disputed parcel under the doctrine of
adverse possession. “To achieve title through adverse possession, the claimant must demonstrate that
possession of the land was open, notorious, hostile, and continuous throughout [a] statutory fifteen-

of 1992. Even granting that allegation as true, it does not fix the defect that was apparent because of

the missing acknowledgment.
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year period.” Old R.R. Bed, LLC v. Marcus, 2014 VT 23, 4 24, 196 Vt. 74; see 12 V.S.A. § 501
(establishing 15-year period, after claim first accrues, for a party to assert claim for recovery or
possession of lands). “The use or possession must be so substantial as to put an ordinary owner on
notice of the adverse possessor’s claim to absolute dominion over the property.” Jd. As noted by the
Vermont Supreme Court, the adverse possessor “must unfurl his flag on the land, and keep it flying so
that the owner may see, if he will, that an enemy has invaded his dominions and planted his standard of
conquest.” Barrell v. Renehan, 114 Vt. 23, 29 (1944).°

Notably, however, “[i]t is presumed that the use of the land by one who has record title is the
exercise of his right to enjoy it, and such use interrupts the continuity of adverse possession by
another.” Harlow v. Miller, 147 Vt. 480, 483 (1986). In Harlow, the record owner’s son effectively
“negated” the plaintiff's claim when he “maintained the area in question by mowing the grass
periodically” during the supposed fifteen-year period of adverse possession claimed by the plaintiff,
Id.; see also Camp v. Camp, 88 Vt. 119, 120 (1914) (maintenance of flower garden on lands held by
record owner “work[s] an interruption in the running of the Statute of Limitations”); Earl v. Griffith,
52 Vt. 415, 420-21 (1880) (periodic cutting and removal of logs by record owner were acts of “actual
possession of the true owner of title” that “effectually interrupted” period of claimed adverse
possession by others).

This presumption of interruption is subject to rebuttal. If the record owner does not enter with
an assertion of a claim as owner, with intent to take possession, and with such notoriety that the
adverse possessor would have reason to take action to vindicate his rights, the continuous running of
the 15-year period of possession may not be interrupted. See Johnston v. Fitzgeorge, 14 A. 762, 763-
64 (N.J. 1888) (cited favorably by D’Orazio v. Pashby, 102 Vt. 480, 486 (1930)), abrogated on other
grounds by J & M Land Co. v. First Union Nat’l Bank, 766 A.2d 1110 (N.J. 2001); Barrell, 114 Vt. at
31 (there is no interruption in the period of adverse possession if it could be inferred “that [the record

> Defendant maintains that the claimant’s evidentiary burden is even greater if the claimant and the
holder of record title are members of the same “family.” Def.’s Mot. for Summ. J. at 14. The Court is
not convinced. That heavier burden of proof, or a presumption of permissive and amicable use, only
arises where the two parties in dispute are parent and child, or where the parties are in another close
family relationship. See 4 Tiffany Real Property § 1189 (3d ed.) (citing cases from several
jurisdictions, including Harlow v. Miller, 147 Vt. 480 (1986)); Harlow, 147 Vt. at 484 (applying
presumption of permissive and amical use against son who asserted adverse possession of lands owned
by his parents); Bellamy v. Shryock, 199 S.W.2d 580, 583 (Ark. 1947) (applying presumption against
mother’s claim of adverse possession against her daughter and son-in-law), cited favorably by Harlow,
147 Vt. 484. Here, the parties and their predecessors are first cousins once removed (or second
cousins), since James Kinneston was the husband of Clarence Fish’s niece, and Defendant is the
maternal granddaughter of Clarence Fish, and she acquired the property by deed from her two aunts,
not by inheritance. While in Ransom v. Bebernitz, 172 Vt. 423, 432 (2001), the Court cited the
presumption identified in Harlow when reviewing a claim of adverse possession by and between
apparent first cousins who held joint title as tenants in common, the Court went on to cite and rely
upon the standard the must be met to prove an ouster by one co-tenant against another. Ransom is thus
not controlling. See also 4 Tiffany Real Property § 1190.1 (3d ed.) (citing relatively few cases that
give any presumption or alter the burden of proof in the case of adverse possession claims between
other family relations); Nordin v. Kuno, 287 N.W.2d 923, 927 (Minn. 1980) (relationship of first

cousins once removed insufficient to infer that use of disputed lands was permissive).
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owner’s] use of it was casual and consistent with .. . a claim of ownership [by party claiming adverse
possession]”).

Here, there is no dispute that after Ms. Raiche took record title to the disputed parcel, she
regularly had the disputed parcel hayed and mowed. (See Pls.’ Rule 56(c)(2) Statement, { 40 (quoting
at length the deposition transcript of Jeffrey Kinneston)). Plaintiff Jeffrey Kinneston testified that he
personally observed that the open 2.6 acres was hayed and mowed for decades. (/d.) Yet, there is a
genuine dispute as to whether Defendant’s activities were under a claim of right, or was by permission
from James Kinneston. Ms. Raiche maintained under oath that she never needed the Kinnestons’
permission, never asked for their permission, and never received their permission. (Aff. of Jean Marie
Raiche (filed May 21, 2025), 44 18-19.) Plaintiffs claim, to the contrary, that the mowing and haying
was always by the permission of Mr. Kinneston. (See Pls.’ Rule 56(c)(2) Statement, { 40 (citing
deposition of Jeffrey Kinneston); Pls.’ Opp’n to Def.’s Mot. for Summ. J. at 8-9.)® Further, they assert
that the haying and mowing by Defendant benefitted both the Kinnestons and Defendant, since the
Kinnestons would not have to hire someone else to maintain the parcel, and Defendant could
presumably “take advantage of the hay.” (Pls.’ Rule 56(c)(2) Statement, § 40; Pls.” Opp’n to Def.’s
Mot. for Summ. J. at 9.) Accepting as true Plaintiffs’ factual claims, a reasonable fact-finder may well
infer that Defendant’s haying and mowing activities were not taken as of right or with an intention to
assert possession, and that such activities were consistent with Plaintiffs’ claims of ownership by
adverse possession. As such, there are genuine material facts in dispute, and summary judgment is not
appropriate.

Defendant also alleges other uses of the parcel, besides mowing and haying, and she alleges
that all uses of the parcel by the Kinnestons was with her express permission. However, these
allegations are also genuinely disputed by evidence proffered by the Plaintiffs.

Conclusion

6 Citing V.R.C.P. 30(e), Defendant asserts that the deposition transcripts relied upon by Plaintiffs are
unsigned by the witnesses, and as such, cannot be considered admissible evidence for purposes of Rule
56 motions. See Def.’s Reply to Pls.” Opp’n to Def.’s Mot. for Summ. J. (July 21, 2025), at 2-3. Rule
30(e), however, does not provide that a deposition transcript that is unsigned by the witness is
inadmissible or may not be used as evidence. Rather, the Rule provides that if the witness does not
sign a copy of the deposition transcript within 30 days of its submission to the witness by the officer
before whom the deposition was taken, “the officer shall sign it and state on the record .. . the fact of
the refusal to sign together with the reason, if any, given therefor[.]” V.R.C.P. 30(e). Defendant thus
apparently claims that the officer (a notary public/court reporter) failed to carry out this act of signing a
deposition that was unsigned by the witness, and that that omission or error renders the depositions
inadmissible. But such an error by the officer is “waived unless a motion to suppress the deposition or
some part thereof is made with reasonable promptness after such defect is, or with diligence might
have been, ascertained.” V.R.C.P. 32(d)(4). Here, both of the depositions of Todd and Jeffrey
Kinneston were apparently taken on December 27, 2024. (Def.’s Ex. A to Reply Mem.) Defendant
has not filed a motion to suppress under V.R.C.P. 32(d)(4), based on an error by the officer under Rule
30. The Court thus concludes that the error of the officer has been waived, at least for purposes of the
adjudication of the parties’ motions for summary judgment. See Atwood v. Kerr, 136 Vt. 515, 516
(1978) (“The defendant has waived these technical defects [specified in V.R.C.P. 32(d)(4)] by his
failure to file a motion to suppress as required by rule.”). This waiver does not, however, necessarily

preclude a motion to suppress filed by Defendant for purposes of trial.
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For the foregoing reasons, Plaintiffs’ motion for summary judgment on Count I of their
Complaint is DENIED. Defendant’s motion for summary judgment is GRANTED IN PART and
DENIED IN PART. The motion is granted as to Count I of Plaintiffs’ Complaint, and denied as to
Count II.

Electronically signed on August 14, 2025 pursuant to V.R.E.F. 9(d)

bene |) Burke.

Alexander N. Burke
Superior Court Judge

Order Page 10 of 10
24-CV-00316 Jeffrey Kinneston et al v. Jean Raiche