Albright v. Fish, No. 36-78

Docket NºNo. 36-78
Citation136 Vt. 387, 394 A.2d 1117
Case DateSeptember 11, 1978
CourtUnited States State Supreme Court of Vermont

Page 1117

394 A.2d 1117
136 Vt. 387
James D. and Edna I. ALBRIGHT
v.
John A. and Cheryl FISH, William and Marion C. Miller,
Ernest Paul and Marlene Sachs, and Peter R. and
Mary Miles Teachout.
No. 36-78.
Supreme Court of Vermont.
Sept. 11, 1978.
Motion for Reargument Denied Oct. 31, 1978.

Page 1118

[136 Vt. 390] Norris H. Hoyt, Jr., Norwich, and Peter R. Teachout, South Royalton, for cross-plaintiffs, Sachs and Teachout.

Garfield H. Miller of Black & Plante, White River Junction, for cross-defendants, Miller.

Before [136 Vt. 387] BARNEY, C. J., and DALEY, LARROW, BILLINGS and HILL, JJ.

[136 Vt. 390] BILLINGS, Justice.

This cause centers around a series of transactions made concerning the Robinson Farm in Hartford, Vermont. Each of the parties now owns or once owned a part of this property, and the suit was commenced because of an alleged breach of a restrictive covenant that bound one of the parcels.

In November, 1971, the common grantor, Reilly and Little, purchased the Robinson Farm. At that time, the farm consisted of approximately 72 acres of land lying north

Page 1119

of Jericho Road and two separate, isolated parcels of approximately six acres each, lying south of Jericho Road. One of the six acre parcels was sold by Reilly and Little to the Fisks in January, 1972; the second was sold to the Hansens in June, 1972. Neither deed contained the restrictive covenant here at issue.

The tract northerly of Jericho Road was surveyed and subdivided into three parcels for sale. In February, 1972, Reilly and Little conveyed a parcel, described in the deed as containing 20 acres, more or less, to defendants Millers. This parcel subsequently was determined to contain 18.9 acres. In May, 1972, Reilly and Little sold the remaining two parcels of 15 acres and 38 acres to the Wells. The deeds to the Millers and to the Wells contained the following covenant here at issue: "The premises herein conveyed shall not be subdivided into lots of less than 10 acres." Each deed further provided that the covenant "shall run with the land and be binding on the Grantees, their heirs and assigns for a period of 50 years from the date of the within deed."

At some point, probably in early 1973, the Millers decided to subdivide their parcel into two lots for sale, one of 8.9 acres and the other of 10 acres. They obtained a quitclaim deed from their original grantors dated June 8, 1973, purporting to release the Millers from the requirements of the 10 acre minimum lot restriction. Thereafter, the Millers conveyed the 10 acre parcel to defendants Fishes in September, 1973. The quitclaim deed was then recorded on October 24, 1973, indexed [136 Vt. 391] under Reilly and Little as grantors and the Millers as grantees.

In November, 1974, the Wells conveyed their 15 acre parcel to defendants Sachs. Then, the Millers sold the 8.9 acre parcel to plaintiffs Albrights in January, 1975. Finally, the Wells conveyed the 38 acre parcel to defendants Teachouts in July, 1975. Except as noted, each of the transfers was by warranty deed. While the Teachouts' deed contained the restrictive covenant here at issue, the Sachs' deed did not.

In August, 1975, the Sachs and the Teachouts notified the Albrights of their position that the conveyance of the 8.9 acre lot violated the restrictive covenant and that any construction would be at the Albrights' own risk. In December, 1975, the Albrights filed suit in the Windsor Superior Court requesting in the alternative either that the Millers be compelled to reacquire the land and compensate the Albrights for expenses incurred in relation to it, or that declaratory relief be given that the Albrights could construct a dwelling on the disputed property plus monetary damages against the Sachs and the Teachouts to compensate for the costs and expenses caused by the delay.

In June, 1976, the Sachs and the Teachouts entered into a settlement agreement with the Albrights. Pursuant to the settlement, the Albrights conveyed undivided one-half interests in the 8.9 acre lot to the Sachs and to the Teachouts. Also, the Albrights assigned to the Sachs and the Teachouts all claims they might have with regard to the 8.9 acre parcel. The settlement further provided that the intent of the parties was that other claims of the parties to the agreement would not be affected by the settlement. Subsequently, the Albrights' complaint was dismissed, and the Sachs and the Teachouts (hereinafter the cross-plaintiffs) brought a cross-claim against the Millers (hereinafter the cross-defendants). In the cross-claim, the cross-plaintiffs claimed a breach of the restrictive covenant allegedly running with the land in their favor and sought both compensatory and exemplary damages. Also, the cross-plaintiffs alternatively urged the assigned rights of the Albrights seeking recision of the Miller to Albright conveyance and all injunctive relief and damages to which the Albrights would have been entitled.

[136 Vt. 392] At a...

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22 practice notes
  • Bright v. Lake Linganore Ass'n, Inc., No. 1223
    • United States
    • Court of Special Appeals of Maryland
    • September 1, 1994
    ...709 S.W.2d 1 (Tex.App. 1 Dist.1985); Flying Diamond Oil Corp. v. Newton Sheep Co., 776 P.2d 618, 627 (Utah 1989); Albright v. Fish, 136 Vt. 387, 394 A.2d 1117, 1120-21 (1978). In the case sub judice, vertical privity, at the least, is clearly The charges imposed by the covenants require the......
  • Daniels v. Elks Club of Hartford, No. 10–181.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • August 3, 2012
    ...To begin with, merger requires identity between the holder of the equitable interest and the holder of legal title. See Albright v. Fish, 136 Vt. 387, 395, 394 A.2d 1117, 1121 (1978) (“The doctrine of merger operates when the same person becomes owner of both the benefited and the burdened ......
  • Stern v. Metro. Water Dist. of Salt Lake & Sandy, No. 20100339.
    • United States
    • Supreme Court of Utah
    • March 20, 2012
    ...for a mobile home because the covenant was “intimately connected” with the land (internal quotation marks omitted)); Albright v. Fish, 136 Vt. 387, 394 A.2d 1117, 1120 (1978) (“Some promises are so intimately connected with the land as to require the conclusion that the necessary intention ......
  • Flying Diamond Oil Corp. v. Newton Sheep Co., No. 19178
    • United States
    • Utah Supreme Court
    • May 25, 1989
    ...value or the use of the land."). See also 165 Broadway Bldg., Inc.; Neponsit, 278 N.Y. at 257-58, 15 N.E.2d at 796; Albright v. Fish, 136 Vt. 387, 394, 394 A.2d 1117, 1121 First Western Fidelity v. Gibbons and Reed Co., 27 Utah 2d 1, 492 P.2d 132 (1971), appears to be at odds with the ......
  • Request a trial to view additional results
22 cases
  • Bright v. Lake Linganore Ass'n, Inc., No. 1223
    • United States
    • Court of Special Appeals of Maryland
    • September 1, 1994
    ...709 S.W.2d 1 (Tex.App. 1 Dist.1985); Flying Diamond Oil Corp. v. Newton Sheep Co., 776 P.2d 618, 627 (Utah 1989); Albright v. Fish, 136 Vt. 387, 394 A.2d 1117, 1120-21 (1978). In the case sub judice, vertical privity, at the least, is clearly The charges imposed by the covenants require the......
  • Daniels v. Elks Club of Hartford, No. 10–181.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • August 3, 2012
    ...To begin with, merger requires identity between the holder of the equitable interest and the holder of legal title. See Albright v. Fish, 136 Vt. 387, 395, 394 A.2d 1117, 1121 (1978) (“The doctrine of merger operates when the same person becomes owner of both the benefited and the burdened ......
  • Stern v. Metro. Water Dist. of Salt Lake & Sandy, No. 20100339.
    • United States
    • Supreme Court of Utah
    • March 20, 2012
    ...for a mobile home because the covenant was “intimately connected” with the land (internal quotation marks omitted)); Albright v. Fish, 136 Vt. 387, 394 A.2d 1117, 1120 (1978) (“Some promises are so intimately connected with the land as to require the conclusion that the necessary intention ......
  • Flying Diamond Oil Corp. v. Newton Sheep Co., No. 19178
    • United States
    • Utah Supreme Court
    • May 25, 1989
    ...the value or the use of the land."). See also 165 Broadway Bldg., Inc.; Neponsit, 278 N.Y. at 257-58, 15 N.E.2d at 796; Albright v. Fish, 136 Vt. 387, 394, 394 A.2d 1117, 1121 First Western Fidelity v. Gibbons and Reed Co., 27 Utah 2d 1, 492 P.2d 132 (1971), appears to be at odds with the f......
  • Request a trial to view additional results

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