Capital Candy Company v. Savard

• Citation: 369 A.2d 1363
• Decision Date: 21 December 1976
• Docket Number: No. 136-75.,136-75.
• Court: United States State Supreme Court of Vermont
• Parties: CAPITAL CANDY COMPANY v. Paul SAVARD.

369 A.2d 1363

CAPITAL CANDY COMPANY v. Paul SAVARD.

No. 136-75.

Supreme Court of Vermont.

December 21, 1976.

Bernasconi & Koch, Barre, for plaintiff.

Reginald T. Abare, Barre, for defendant.

Before BARNEY, C. J., and DALEY, LARROW and BILLINGS, JJ., and SHANGRAW, C. J. (Retired) Specially Assigned.

DALEY, Justice.

The controversy in this case arose some months after the defendant Savard acquired the so-called second parcel of land formerly owned by Comolli & Company, Inc. as the highest bidder in a tax sale conducted by the Internal Revenue Service. See Capital Candy Co. v. Savard, Vt., 369 A.2d 1361 (October Term, 1976). The boundaries of the respective properties involved in this case are reflected in plaintiff's Exhibit No. 28, a survey plan relied upon by both parties. (This exhibit is reproduced at page 1367 of this opinion.) The easterly boundary of the defendant's property is, in part, the westerly line of the property conveyed to the plaintiff Capital Candy by the defendant in April, 1973. The property owned by the plaintiff is described in the "Sanguineti" chain of title; that of the defendant in the "Barclay" chain of title. Access to the plaintiff's property was obstructed by the defendant when he erected iron rails across a small strip of land lying to the west of the plaintiff's office building. As a result of these acts, the plaintiff brought a declaratory judgment action in the Washington Superior Court seeking a clarification of the boundaries of the two parcels of land, as well as a determination of the rights of the parties in and to a small triangular-shaped piece of land.

By its findings of fact and conclusions of law, the lower court found and concluded that the plaintiff owns the small triangular piece of land in dispute; that a certain street in the City of Barre referred to in the evidence as "Old Burnham Street" is a public highway open to the public in general; and that there is an existing tenfoot right-of-way on the defendant's land to be used in common by both parties as provided in certain deeds. The defendant on appeal contends that these findings and conclusions are not supported by the evidence presented before the lower court or are incorrect as a matter of law.

We will first address the defendant's claim of error relating to the existence of the right-of-way. The two parcels of property, prior to their purchase by the respective parties, were both owned by Comolli & Company, Inc. This corporation purchased the parcel of land presently owned by the plaintiff in November, 1933. It subsequently acquired the property currently owned by the defendant in October, 1944, thereby merging both the "Sanguinetti" and the "Barclay" chains of title. Prior to the 1944 conveyance to Comolli & Company, Inc., the property now owned by the defendant was encumbered by a right-of-way of undefined width running along the westerly boundary of the property now owned by the plaintiff. Comolli & Company, Inc. continued to be the sole owner of these two parcels of land to the time the Internal Revenue Service impressed its lien and conducted its tax sales in 1973.

Once the title to the adjoining properties vested in Comolli & Company, Inc., in 1944, the right-of-way was extinguished by the unity of ownership and possession. First National Bank v. Laperle, 117 Vt. 144, 150, 86 A.2d 635 (1952); Plimpton v. Converse, 42 Vt. 712, 717 (1870). This right-of-way, once it had been extinguished by the merger of the two parcels of land, could not be re-created by the mere subsequent separation of the parcels. In order for a new right-of-way to exist over the defendant's property, it must be shown that such an easement was re-created by a proper new grant or reservation. Fitanides v. Holman, 310 A.2d 65, 67 (Me.1973); Comment (h) to § 497 of the Restatement of Property (1944). Therefore, the issue as to whether the plaintiff Capital Candy enjoys a right-of-way over a portion of Savard's property is to be determined by examining the conveyances after 1944 to ascertain whether such an express grant or reservation of an easement was properly made.

The first of these conveyances by a quit claim deed from Comolli & Company, Inc. (by the District Director of the Internal Revenue Service) to the defendant Savard dated March 23, 1973, purportedly conveyed the rights-of-way mentioned in the Armando Comolli to Comolli & Company, Inc. deed of November 28, 1933. The second conveyance by warranty deed from the defendant to the plaintiff dated April 10, 1973, also purported to convey the same rights-of-way referred to in the Comolli to Comolli & Company deed. We hold that in neither of these two deeds executed in 1973 was an easement re-created in favor of the grantees. The grantors in those deeds conveyed a nonexistent right-of-way, a right-of-way extinguished by the merger of the properties in 1944. The mere reference in a deed to an earlier right-of-way which was extinguished by law does not constitute the re-creation of that...