Bristol Mfg. Co. v. Palmer

• Decision Date: 09 October 1909
• Citation: Bristol Mfg. Co. v. Palmer, 82 Vt. 438, 74 A. 76 (Vt. 1909)
• Parties: BRISTOL MFG. CO. v. PALMER.
• Court: Vermont Supreme Court

74 A. 76

82 Vt. 438

BRISTOL MFG. CO.

v. PALMER.

Supreme Court of Vermont. Addison.

Oct. 9, 1909.

Exceptions from Addison County Court; W. H. Taylor, Judge.

Trespass quare clausum fregit by the Bristol Manufacturing Company against Edson B. Palmer. There was a judgment for plaintiff, and defendant excepts. Reversed and cause remanded for new trial.

Argued before ROWELL, C. J., and MUNSON, WATSON, HASELTON, and POWERS, JJ.

Chas. I. Button and Wm. H. Bliss, for plaintiff. Frank L. Fish, for defendant.

POWERS, J. This is a controversy over the true location of the dividing line between lot 51, in the Third division, and lots 47, in the Third division, and 47, in the Fifth division, in the town of Bristol. All these lots are irregular in shape. The north and south lines of 47, Third, are parallel, and the west line is perpendicular to them; but the south line is much longer than the north line, so the east line cuts the two at an angle approximating 45 degrees. No. 47, Fifth, lies directly north of 47, Third; its east line being a continuation of the east line of the latter. No. 51, Third, lies east of these two lots; its east line forming a right angle with the south line of 47, Third. No. 38, Third, lies south of the eastern part of 47, Third. Next west of 38 and south of the western part of 47, Third, lies the "Wright lot," so called, which was covered by the Vittum deed as hereinafter stated. No. 65, Second, lies next east of 51, its south line being a continuation of the south line of 47, Third, and No. 66, Second, lies next south of 65 and east of 38. Nos. 65, 66, 38, and the Wright lot are all rectangular in form. The southeast corner of 51, the southeast corner of 47, Third, the southwest corner of 65, the northeast corner of 38, and the northwest corner of 66 are the same point, which is one end of the disputed line, and was originally marked by a spruce tree, not now to be found. The plaintiff owns 47, Third, and 47, Fifth, and the defendant owns the southern part of 51 extending down to the corner just mentioned. From the relative locations of these lots, it is apparent that the eastern end of the disputed line is controlled by (1) the location of the south line of 47, Third; and (2) by the location of the east line of 51. And, since the former is coincident with the north line of 38 and the north line of the Wright lot, and is a continuation of the south line of 65 and the north line of 66, and the latter is coincident with the west line of 65 and a continuation of the east line of 38 and the west line of 66, it follows that the establishment of any of the lines named would be relevant to the question directly in issue. We are now speaking of these several boundaries as though they involved several different lines merely to make the argument clear. In fact, of course, only two lines are involved, one running north and south, and the other east and west; the point of intersection being one end of the disputed line.

Subject to the defendant's exception, the court admitted in evidence a certified copy of a deed of the Wright lot, called the Vittum deed, which was not in the chain of title of either party. The description of the land granted by this deed is as follows: "Bounded north by lot No. 47, in the 3d Division, east by lot No. 38, 3d Divison, south by lot No. 34, 3d Division, and west by lot No. 46 in the 3d Division." This is all there is in this deed which could be of any assistance in the determination of the issues here involved. It simply shows that the north line of the granted premises is the south line of 47, Third. It throws no light on the location of the line on the ground, and, as the record stands, we could safely say that its admission, if error, was harmless. We must assume, however, that it was accompanied with other evidence which made it of some practical use and importance in the trial. That it was inter alios is not determinative of its admissibility. The defendant evidently so understood it at the trial, for the exceptions state that both parties sought to establish their claim by reference to the boundaries of adjoining lots. That the north line of the premises covered by the deed was the same as the south line of 47, Third, which, as we have seen, was relevant and important, was material as a fact preliminary to proof of the true location of such north line. That this fact could be proved by the deed cannot admit of doubt. The limits of a grant must be sought for in the deed of the premises. The description there to be found is the very thing which gives limit to the grant. Such description is not technically a "recital"; for, instead of being...