O'Brien v. Dewey

• Decision Date: 05 March 1958
• Docket Number: No. 166,166
• Citation: O'Brien v. Dewey, 143 A.2d 130, 120 Vt. 340 (Vt. 1958)
• Court: Vermont Supreme Court
• Parties: George H. and Marie C. O'BRIEN v. Elizabeth D. DEWEY et al.

Page 130

143 A.2d 130

120 Vt. 340

George H. and Marie C. O'BRIEN v.Elizabeth D. DEWEY et al.

No. 166.

Supreme Court of Vermont.

March 5, 1958.

Reargument Denied May 26, 1958.

Manfred W. Ehrich, Jr., Bennington, for plaintiffs.

Norton Barber, John P. Morrissey, Bennington, for defendants.

Before CLEARY, ADAMS and HULBURD, JJ., and SMITH and SHANGRAW, Superior Judges.

ADAMS, Justice.

This is an action of tort for trespass to recover damages to real property for the wrongful cutting of trees and to recover treble damages under V.S. 47 § 8403.The action was brought against six defendants.Trial was by jury.A verdict was directed for two of the defendants and a general verdict was returned by the jury against the other four defendants.A special verdict was returned answering in the negative the question,--if these four defendants had satisfied the jury by a fair balance of the evidence that in cutting such trees as they might find were cut upon the plaintiffs' land, the defendants acted through mistake, or had good reason to believe the trees so cut were upon their own land.There was a judgment on the verdicts for treble damages.The case comes here on exceptions of these four defendants to the denial of their motions for a directed verdict, to set aside the verdicts, for a judgment not withstanding the verdicts, to the charge and failure to charge.When the word 'defendants' is hereinafter used it will refer to these four only.

The plaintiffs claim title to the real estate in question and occupied by them as a home in the town of Woodford, described in plaintiffs' exhibit 4, a warranty deed from Alta E. and Howard C. Davis to George H. O'Brien, Jr., and Marie C. O'Brien, dated April 29, 1946 as follows:

'Commencing at a point in the north line of the main highway leading from Bennington to Wilmington, which point is the southwest corner of the parcel herein conveyed; thence running northeasterly along the easterly side of the highway known as Slab City Road to the southwest corner of the lands of the Draper Corporation; thence running easterly along the south line of the lands of said Draper Corporation to the southeast corner of the lands of said Draper Corporation; thence running northerly along the east line of the lands of the Draper Corporation to the south line of the river; thence running easterly along the south line of the bank of the river to the northwest corner of the lands now owned by Arthur Chambers; thence running southerly along the west line of said Chambers land to the north line of said main highway; thence running westerly along the north line of said main highway to the place of beginning; excepting from and out of the above described piece of land that portion which was conveyed by Karl T. Spofford to the State of Vermont, which deed is recorded in Book 18, page 754 of the land records of the Town of Woodford.'

The main highway referred to in the foregoing description is route 9 leading from Bennington to Brattleboro and from various maps and exhibits in the case said highway, where it bounds the land in question, runs generally northwest and southeast.It is a hard surface road and the premises are located about four miles from Bennington.This highway was more often spoken of by various witnesses and the attorneys as running north and south and the river referred to in the description was also spoken of as running in the same general direction.This river is known as the City Stream and it flows from the Brattleboro direction towards Bennington so down stream is towards Bennington.We shall refer to it in this opinion as the stream.It should be mentioned that there were no previous deeds of the premises in evidence that described the premises by metes and bounds.The other deeds that were exhibits described the property as 'Ferndale' and referred to previous deeds only.

Although the boundary description in the foregoing deed described the premises as bounded on the south by the main highway, because of the maps used as exhibits and the testimony of the witnesses, we shall in this opinion speak of it as bounded on the west by the main highway, the so-called Slab City Road as being to the north, the stream to the east and the Chambers land to the south.

The controversy here stems from a dispute in regard to the title to what the parties term as an island containing about two acres of land and located on the southerly or upstream part of the premises described in the plaintiff's deed.The dispute is about the location on the ground of the southerly boundary of the premises and that part bounded by the westerly bank of the stream.

The testimony bearing upon this feature of the case was very conflicting.We will mention only some of it.The testimony on behalf of the plaintiffs tended to show that the Draper Corporation and Dewey formerly owned land bordering the stream on the east and during a survey made to establish their division line a post was set in 1949 near the east bank of the stream and marked with the word Draper on one side, Dewey on another and O'Brien on another side.This marked the division line point of beginning and also the Chambers and O'Brien corner, these latter two being the same.There was testimony that those who did the surveying felt that O'Brien owned up to the Chambers corner.A witness for the plaintiffs testified that he had lived southerly and next to the Chambers property for twenty-seven years; that the Chambers property was ninety feet wide and extended from the road to the stream and was between his land and the O'Brien land.

There was testimony from various witnesses called by the plaintiffs that the stream channel had always been back next to the mountain and that in the flood of 1927 the stream overflowed, made a channel nearer the road and washed out some of the road.The testimony showed that repairs were made and an embankment built so that the stream was diverted back into the old and main channel.There was testimony that the same thing happened in 1938 and again in 1949 and since then some water had flowed in this new channel but only when there was high water.

The evidence showed that because of the new channel caused by the floods and high water it makes an island, as the parties term it, which contains about two acres and is situated between the old channel and the new channel where some water flows during high water.

The plaintiffs claim and their evidence tended to show that their southerly line and the adjoining northerly line of the Chambers land is southerly of this island and that the line mentioned in their deed as 'along the south bank of the river to the northwest corner of the lands now owned by Arthur Chambers' is along the old or main channel of the stream as it existed in 1946, the date of their deed.They therefore claimed that they owned the island and the land between it and the easterly side of route 9, the main highway mentioned as one bound in their deed.

The defendants claimed and their evidence tended to show that the southerly line of the plaintiffs' land, known as 'Ferndale', as pointed out in 1932 by a person who previously owned it, now deceased, starts from a yellow birch tree on the westerly side of route 9 and extends across the northerly tip of the so-called island to an elm tree across and near the east bank of the stream and thence northerly along the east bank of the stream to the road.That road is the one designated in the deed to the plaintiffs as the Slab City Road.They also claimed and their evidence tended to show that the bound mentioned in the plaintiffs' deed as 'along the south line of the bank of the river to the northwest corner of lands now owned by Arthur Chambers' was the west bank of the stream it made at the time of the floods and is its most westerly channel.They therefore claimed that the plaintiffs do not own any part of the island or land southerly of the line extending from the yellow birch tree to the elm tree on the east bank of the stream.

In passing upon a defendant's motion for a directed verdict, the evidence must be taken in the light most favorable to the plaintiff and the ruling of the trial court sustained if the evidence fairly and reasonably tends to support the verdict.The effect of modifying evidence is to be excluded.Contradictions and contradictory inferences are for the jury to resolve.The tendency of the evidence and not its weight is to be considered.If there is any substantial evidence fairly and reasonably tending to support the plaintiffs' claim, the question is for the jury.Campbell v. Howard National Bank, 118 Vt. 182, 183-184, 103 A.2d 96, and cases cited therein.Where there is conflicting testimony the question is for the jury.Manley v. Delaware & Hudson Canal Co., 69 Vt. 101, 103, 37 A. 279.Where testimony is conflicting the weight is for the jury.Gentes v. St. Peter, 105 Vt. 103, 105, 163 A. 569.The weight of the evidence and the credibility of the witnesses are for the trier of the facts to determine and all conflicts are to be resolved against the excepting party.Taylor v. Henderson & Smith, 112 Vt. 107, 111, 22 A.2d 318.

Tested by the foregoing rules, it is apparent that the ownership of and title to the so-called island was for the jury.There was no error in denying the motion for a directed verdict.

The defendants have mentioned in their brief a claimed error in the court's charge.All they say about it is that the charge on the particular point mentioned was in error.They do not point out any exception to it and we fail to find any in the record.There is but one exception to the charge as given and it does not cover that part of the charge about which complaint is now made.An instruction not excepted to is not for consideration on appeal.Loomis v. Abelson, 101 Vt. 459, 463, 144 A. 378.

The defendants brief their exceptions to the failure of the court to charge their requests numbered 2 and 3.Both of...