Bomhower v. Smith, 1273.

• Decision Date: 02 May 1939
• Docket Number: No. 1273.,1273.
• Citation: 5 A.2d 925
• Parties: BOMHOWER et ux. v. SMITH.
• Court: Vermont Supreme Court

5 A.2d 925

BOMHOWER et ux.

v. SMITH.

No. 1273.

Supreme Court of Vermont. Windsor.

May 2, 1939.

Exceptions from Windsor County Court; Charles B. Adams, Judge.

Action in tort by Albert B. Bomhower and wife against Rochie E. Smith, brought under the provisions of P.L. 8540 to recover treble damages for the cutting of timber. The trial was without a jury, a finding of facts was made and filed, and judgment was rendered for plaintiffs to recover single damages only, and defendant brings exceptions.

Affirmed.

Argued before MOULTON, C. J, and SHERBURNE, BUTTLES, STURTEVANT, and JEFFORDS, JJ.

Roland E. Stevens, of White River Junction, for plaintiffs.

Raymond Trainor, Henry F. Black, and Alfred Guarino, all of White River Junction, for defendant.

MOULTON, Chief Justice.

This is an action in tort brought under the provisions of P.L. 8540 to recover treble damages for the cutting of timber. The trial was without a jury, a finding of facts was made and filed, and judgment was rendered for the plaintiffs to recover single damages only, since the court found that the defendant had good reason to believe that the land upon which the cutting was done belonged to him. The defendant excepted.

The finding of facts discloses the following: Harry B. Elliott owned two adjoining farms, known as the Gillette and the Buell farms. The former lies to the south and the latter to the north. He acquired title to the Gillette farm from Angie Burns Gillette and others, by warranty deed dated September 25, 1929, the material part of the description being "bounded northerly by the Buell farm, so-called, owned by Emma L. and Mary H. Dana, said dividing line being more particularly given in their deed recently given or to be given." The Danas conveyed the Buell farm to Elliott on December 24, 1929, the premises being described as bounded "southerly by the Edward A. Gillette farm now owned by said Elliott."

On July 21, 1931, Elliott conveyed the Gillette farm to Edgar J. and Ida Carpenter, describing it (with an exception here not material) "the same and all the same land and premises which were conveyed to me by Angie Burns Gillette and Helen Wright and Seaver D. Wright, by their deed dated September 25, 1929," referring to the record thereof for more particular description, "being the Edward A. Gillette farm, so-called." On August 4, 1931, Elliott conveyed the Buell farm to the plaintiffs, Albert B. and Gertrude Bomhower, describing the southerly boundary by metes and bounds, but the line thus drawn did not coincide with the original southerly boundary but was somewhat northerly of it.

The Carpenters deeded the Gillette farm back to Elliott on April 8, 1932, as "the same and all the same land and premises which were conveyed to the said Harry B. Elliott by the warranty deed of Angie Burns Gillette and Helen Wright and Seaver D. Wright, dated September 25, 1929 * * * formerly known as the Edward J. Gillette farm," with reference to the record in aid of the description. On May 10, 1932, Elliott conveyed the Gillette farm to Charles B. and Eva F. May, the description being the same as that contained in the deed from the Carpenters to him. The Mays conveyed the Gillette farm to George A. and Ada M. Chamberlin on October 3, 1933, and the deed contained the following: "The northerly line between the buildings and the premises hereby conveyed and the buildings and lot now owned by Albert B. Bomhower and wife is more particularly described in the warranty deed of Harry B. Elliott to Albert B. and Gertrude Bomhower dated August 4, 1931 [referring to the record thereof] and said northerly line is also the southerly line of the said Bomhower house and house lot." George A. Chamberlin conveyed to Rochie E. Smith, the defendant, on May 4, 1936, describing the premises by reference to the deeds of Elliott to the Mays, of May 10, 1932, and of the Mays to the Chamberlins of October 3, 1933, and to the records thereof in aid of the description.

On September 17, 1937, Elliott executed a quitclaim deed to...