Abraham v. Dougherty.

• Decision Date: 04 February 1947
• Docket Number: No. 1059.,1059.
• Citation: 51 A.2d 133
• Court: Vermont Supreme Court
• Parties: ABRAHAM et al. v. DOUGHERTY.

51 A.2d 133

ABRAHAM et al.

v.DOUGHERTY.

No. 1059.

Supreme Court of Vermont.

Feb. 4, 1947.

Exceptions from Court of Chancery, Rutland County; Blackmer, Jr., Presiding Judge.

Suit by William Abraham and Ellen Pauline Abraham against Charles E. Dougherty for injunction restraining defendant from obstructing right of way and for other relief. Decree of dismissal, and the plaintiffs bring exceptions.

Reversed and remanded.

Clayton H. Kinney, of Rutland, for plaintiffs.

Asa S. Bloomer, of Rutland, for defendant.

Before MOULTON, C. J., and SHERBURNE, BUTTLES, STRUTEVANT and JEFFORDS, JJ.

BUTTLES, Justice.

The plaintiffs and the defendant own adjoining parcels of land, abutting on the north side of River Street in the City of Rutland. The premises of the plaintiffs are used by them for a retail business in coal and other fuels and extend from the Rutland Railroad property westerly to the house lot of the defendant, and that lot extends westerly a distance of 56 feet on the street line. In the middle of the street a ramp commences nearly opposite the defendant's west line and extends eastward past the premises of both parties, at a rising elevation, to form the approach to a bridge over the railroad tracks. This ramp and approach occupy the whole width of the street except for seven feet on the north side and about the same space on the south side. There is a wall some three feet in height along the north edge of this ramp, forming a parapet or guard rail to the ramp and approach to the bridge.

Prior to September 14, 1893, E. A. and E. R. Morse owned both of the properties here in question. On that date they conveyed to defendant's predecessor in title the land now owned by the defendant, by deed in which the first call of the description reads: ‘beginning at the south-east corner of Mrs. Bridget Tierney's land on the north line of River Street and River Street bridge and running thence on the north line of River Street 56 feet.’ The description is followed by this reservation: ‘Reserving to the said Grantors their heirs or assigns the use of eight feet in width, of land, in front of said premises above described on the River Street line for a drive way for the benefit of the land lying East of the above described premises'. On September 26, 1932, the administrator of this grantee conveyed the same land to this defendant by deed which described it as beginning on the north side of River Street and River Street Bridge at the southeasterly corner, etc., and running thence easterly on the north line of River Street 56 feet, etc. The reservation to E. A. and E. R. Morse above referred to is recited in this deed.

The plaintiffs acquired title to their property on October 21, 1921, by deed of E. R. Morse to whom the interest of E. A. Morse, then deceased, had been decreed. The last two calls of this deed read: ‘thence southerly along the east line of land of said Dougherty Estate to River Street; thence easterly along said River Street to the place of beginning.’ The land is further described as ‘being all the land now owned by E. R. Morse between the east side of said Spruce Street and the North side of the said River Street.’ It also conveys ‘a certain right of way reserved to the grantors in a certain deed from E. A. and E. R. Morse to William Henry Dougherty dated Sept. 14, 1893.’

By their bill of complaint the plaintiffs allege that this right of way, eight feet in width, is bounded on the south and not on the north by the line of River Street. An injunction is sought restraining the defendant from obstructing the right of way as claimed by the plaintiffs, and ordering the removal of certain obstructions which it is alleged the defendant has placed therein. The defendant claims that the right of way lies to the south of the north line of the street and entirely within the limits of the highway. The correct location of the right of way is the determinative question. After hearing by the chancellor findings of fact were filed and decree rendered dismissing the complaint. The case comes here on plaintiffs' exceptions to several of the findings of fact.

It has been held that where one owns land abutting on a highway the legal presumption, in the absence of evidence showing the fact to be otherwise, is that said owner owns to the middle of the highway; and where one conveys land abutting on a...