Aldrich v. Brownell

• Citation: 120 A. 582
• Decision Date: 25 April 1923
• Docket Number: No. 573.,573.
• Parties: ALDRICH et al. v. BROWNELL.
• Court: United States State Supreme Court of Rhode Island

120 A. 582

ALDRICH et al.

v. BROWNELL.

No. 573.

Supreme Court of Rhode Island.

April 25, 1923.

Appeal from Superior Court, Newport County; Willard B. Tanner, Presiding Justice.

Bill by B. Dexter Aldrich and others against Susan H. Brownell. Decree for complainants, and respondent appeals. Reversed in part, and affirmed in part.

See, also, 119 Atl. 762.

Charles C. Remington, Alexander L. Churchill, and Wilson, Churchill & Curtis, all of Providence, for appellant.

Nathaniel W. Smith and Swan, Keeney & Smith, all of Providence, for appellees.

RATHBUN, J. This is a bill in equity to determine a boundary line between lands of the parties, and to enjoin the respondent from maintaining a gate across a right of way through land of the respondent. The cause was heard by the presiding justice of the superior court, who entered a decree which established the boundary line and enjoined the respondent, her heirs and assigns, from maintaining the gate in question. The cause is before us on the respondent's appeal from said decree.

In 1908 Richmond Brownell, who was the respondent's husband and is the common ancestor in title of the parties, being at the time the owner of both tracts of land, conveyed to Mabel S. Hall the land now owned by the complainants, and also, as appurtenant thereto, a right of way through land retained by the grantor and now owned by the respondent. The clause granting and defining the right of way was as follows:

"Also conveying to said grantee a right to pass and repass with teams or otherwise from the terminus of the public highway along the way now traveled to the eastern boundary of said grantor's farm; also a right to pass and repass, with teams or otherwise, along the laneway west of said conveyed premises."

Said deed described the land thereby conveyed as bounding northerly on a laneway leading to "Little Pond Cove." The line bordering on said laneway is the line in dispute.

There is ample testimony to support the finding that after said conveyance said Richmond Brownell and said Mabel S. Hall agreed upon, established, and marked the line between their respective estates along said highway, and that the line so established and marked was recognized by the abutting owners as the line between the two estates until within a short time before this action was commenced. The line fixed by said decree coincides with the line established by said Brownell and said Hall. In O'Donnell v. Penngy, 17 R. I. 164, at page 166, 20 Atl. 305, 306, the court said:

"There are numerous decisions to the effect that, when the boundary line between adjacent lands is in dispute or uncertain, the owners may establish a division line between them by express parol agreement, and that, if such agreement is immediately executed and followed by actual possession according to such line, the...