Cameron's Run, LLP v. Frohock, 08-505.

• Decision Date: 25 August 2010
• Docket Number: No. 08-505.,08-505.
• Parties: CAMERON'S RUN, LLP v. Roberta FROHOCK and Todd Buik.
• Court: Vermont Supreme Court

9 A.3d 664

2010 VT 60

CAMERON'S RUN, LLP

v.Roberta FROHOCK and Todd Buik.

No. 08-505.

Supreme Court of Vermont.

June 21, 2010.

Motion for Reargument Denied Aug. 25, 2010.

Present: REIBER, C.J., DOOLEY, JOHNSON, SKOGLUND and BURGESS, Associate Justices.

ENTRY ORDER

¶ 1. Defendants appeal from the superior court's decision establishing the location of the disputed rear boundary of their property in Milton, Vermont. We reverse and remand.

¶ 2. The following facts are not in dispute. Russell and Shirley Sweeney deeded the parcel of land at issue to defendantFrohock's parents in 1964. The deed of conveyance describes the lot as "located on the easterly side of [R]ailroad Street Extension ... [with] frontage on said Railroad Street [E]xtension of 131 feet; a southerly line of 131 feet; [an] easterly line of 125 feet[;] and a northerly line of 136 feet." The deed states that "[a]ll corners have been marked by posts driven in the ground." With reference to Railroad Street Extension, the deed also "[i]nclude[s] herein ... all right, title, and interest from said lot to the center of the highway." The posts referenced in the deed can no longer be found on the property. At the time of this conveyance, the Sweeneys owned the property bordering the Frohock lot to the rear and on both sides. The neighboring property was eventually purchased by plaintiff Cameron's Run.

¶ 3. In 1977, the Sweeneys hired Warren Robenstein, a professional land surveyor, to survey their property surrounding the Frohock lot and prepare an eight-lot subdivision plat. In performing his survey and creating the subdivision plat, Mr. Robenstein set boundary-marking pins on the land, including pins to mark the rear corners of the Frohock lot and at least some pins in the front of the lot bordering Railroad Street Extension.¹ In calculating the edge of the road Mr. Robenstein assumed a road width of three rods, or 49.5 feet,² and set his pins at half this distance from the center line. The rear boundary of each lot was set by measuring from these front pins.

¶ 4. Approximately twenty years after the Robenstein survey, defendant Frohock built a stockade fence near the rear boundary of the Frohock lot. In 2001, plaintiff commissioned a survey of the former Sweeney property, which it now owned. The survey disclosed that the rear portion of the stockade fence extended approximately eight feet beyond the rear property line of the Frohock lot as depicted in the Robenstein survey. In 2007, as part of a plan to subdivide and develop its property plaintiff asked defendants to remove the fence. Defendants refused, and this litigation to quiet title ensued.

¶ 5. At a bench trial, plaintiff asserted ownership up to the rear boundary of the Frohock lot as marked by the Robenstein survey. Defendants insisted that the fence was within their property line as measured from the midpoint of Railroad Street according to the deed. They based this contention on the claim that Railroad Street is not a three-rod road as supposed in the Robenstein survey, but is actually a right-of-way four rods wide. Defendants argued the significance of their property fronting a four-rod, or sixty-six-foot wide road meant that Robenstein's front pins were eight feet too close to the center of the road, and that defendants' rear boundary is beyond their stockade fence. Defendant Frohock testified that, while building the stockade fence, she did not search for or locate any boundary markers but relied on her father's assurance that the fence was within the lot's rear boundary. Mr. Robenstein, on plaintiff's behalf, testifiedthat during his survey he did find some existing boundary posts in some locations noted in the original deed and that his new pins marked the same locations. Defendants dispute whether the posts he found, if any, were the pins marking the front corners of the Frohock lot, i.e., those bordering Railroad Street Extension. The parties also dispute whether the road is four rods or three rods wide.

¶ 6. The trial court concluded that plaintiff owned the land up to the pins set on the rear comers of defendants' lot by the 1977 Robenstein survey. The court did not, however, find that Robenstein discovered the original posts. Instead, the court's decision can be attributed to Robenstein's testimony that the surveyor's pins were set according to his assumption that Railroad Street Extension was a three-rod road based on its appearance. The court opined that the road was probably also assumed by the grantor Sweeneys to be three rods wide in 1964 regardless of any likely legal description to the contrary. Considering that neither the Sweeneys nor the Frohocks ever complained about Robenstein's open pin placement during his survey, the court was persuaded that his pins probably matched the location of the original posts referred to in the deed.

¶ 7. These findings, however, turned out to be something of an aside, since the court did not ultimately rely upon the deed or the survey in its determination. Nor did it resolve the issue of road width. Instead, the court based its determination on adverse possession, concluding that plaintiff and its predecessors-in-interest had openly, notoriously, and in a hostile and continuous fashion, possessed the land in question for more than fifteen years. See 12 V.S.A. § 501 (recognizing title in those who possess land adversely to others for continuous period of fifteen years).

¶ 8. On appeal, defendants argue that the trial court erred in finding for plaintiff on a theory of adverse possession. Defendants reiterate that neither party raised adverse possession at trial and argue they had no opportunity to contest or present evidence on the necessary elements found by the court. Additionally, defendants contend that many of the court's findings regarding the location of the property boundary are not supported by the record. Finally, defendants contend that the Sweeney-Frohock deed is not ambiguous, and thus, the court had no basis to look to extrinsic evidence to find ambiguity or to determine the parties' intent when the deed was executed. Even if the deed is ambiguous, defendants argue, the edge of Railroad Street Extension as legally established, together with the deed's metes and bounds description, should control the lot's boundaries rather than the pins set during the 1977 survey.

¶ 9. We agree that the trial court erred in applying adverse possession in favor of plaintiff. We also agree that if the road width is established outside of the deed as a matter of law, that legal description governs the commencement of the deed's metes and bounds, absent evidence that the grantor intended otherwise. Unless the evidence already submitted proves that grantor Sweeney understood, perceived, or believed the Railroad Street Extension right-of-way did not exceed three rods, on remand the court needs to address defendants' claim that the road is, in fact and in law, four rods wide.

¶ 10. Generally, "all parties are entitled to be spared having their litigation unexpectedly decided on the basis of issues and doctrines outside of the understood course and direction of the case as pleaded and tried." Potwin v. Tucker, 126 Vt. 414, 418, 234 A.2d 430, 433 (1967); cf.Lakeview Farm, Inc. v. Enman, 166 Vt. 158, 161, 689 A.2d 1089, 1091 (1997) (determining that issue properly raised and considered where both parties argued acquiescence in post-judgment memoranda). The policy underlying this rule "is the right to have notice, by pleading or otherwise, of the issues to be advanced and accepted at trial as critical to, or decisive of, the litigation." Potwin, 126 Vt. at 418, 234 A.2d at 433. Adverse possession was never asserted by the parties in this action, except as an affirmative defense in defendants' answer. Indeed, defendants contend, and plaintiff does not deny, that when the trial court inquired about adverse possession during a chambers-conference, both parties responded that they would not rely on that theory to establish their respective claims to the property. The record of the proceedings below shows that neither party sought to establish or respond to the elements of adverse possession. Consequently, defendants had no notice that adverse possession by plaintiff would be critical to the litigation and were unaware that the case would be decided on that basis. Therefore, the trial court's holding on this point must be set aside. See Withington v. Derrick, 153 Vt. 598, 605, 572 A.2d 912, 915 (1990) (reversing trial court's decision that the defendants acquired land by adverse possession where "adverse possession was never an issue at trial").

¶ 11. Having disposed of defendants' primary claim, we review their remaining complaints that the trial court erred in admitting extrinsic evidence to construe an unambiguous deed while considering the disputed boundary. Defendants' deed refers to Railroad Street Extension and posts driven into the ground, and provides a metes and bounds description of the lot boundaries. The monumental posts are long gone, and the parties dispute the width and controlling edge of Railroad Street. Defendants contend that the street itself is a monument referred to in the deed; a street legally described in town highway documentation as a four-rod road which would place the back boundary past the allegedly encroaching fence. Plaintiff responds that the pins placed by Robenstein in 1977 mark the location of the posts referenced in the deed and are therefore the monuments that must control over courses and distances in the deed.

¶ 12. In boundary disputes, "[t]he burden is upon the plaintiff of showing that the location of this common [property] line upon the ground is where he claims it is." Neill v. Ward, 103 Vt. 117, 145, 153 A. 219, 232 (1930), overruled on other grounds by Vt. Structural Steel v. Dep't of Taxes, 153 Vt. 67, 569 A.2d 1066 (1989). The master rule in construing a deed is that "the intent of the parties governs." DeGraff v....