Charles C. Gardiner Lumber Co. v. Graves

• Decision Date: 30 October 1939
• Docket Number: No. 1440.,1440.
• Citation: 8 A.2d 862
• Parties: CHARLES C. GARDINER LUMBER CO. v. GRAVES et al.
• Court: Rhode Island Supreme Court

8 A.2d 862

CHARLES C. GARDINER LUMBER CO.

v. GRAVES et al.

No. 1440.

Supreme Court of Rhode Island.

Oct. 30, 1939.

Appeal from Superior Court, Providence and Bristol Counties; Jeremiah E. O'Connell, Presiding Justice.

Suit in equity by the Charles C. Gardiner Lumber Company against Eugene S. Graves, Allen & Reed, Incorporated, and others for specific performance of a contract to purchase realty and declarations that complainant has perfect title thereto and that respondents have no estate or interest therein or right to pass over any part thereof. Decree for complainant, and respondent Allen & Reed, Incorporated, appeals.

Appeal denied, decree affirmed, and cause remanded.

Tillinghast, Collins & Tanner, Russell P. Jones, and Westcote H. Chesebrough, all of Providence, for complainant.

Russell W. Richmond, of Providence, for Allen & Reed, Inc.

CAPOTOSTO, Justice.

This is a bill in equity brought by the complainant against Eugene S. Graves, Allen & Reed, Incorporated, and seventy-eight other named respondents, praying for the specific performance of an agreement between the complainant and the respondent Graves for the purchase by the latter of certain real estate, specifically described in the bill, on the easterly side of Dyer street in the city of Providence. The bill further prays that the complainant be declared to have a "perfect title" to the premises described, free from the restrictions set forth, and that "neither the respondents nor any other person have any estate or interest therein or in any part thereof, or any rights to pass or repass over any part thereof." The bill also contains a prayer for general relief.

All respondents, with the exception of Graves and of Allen & Reed, Inc., who alone made full answer, either filed mere formal answers submitting their rights to the court or made no answer at all. Decrees pro confesso were entered as to all respondents who failed to answer. Following a full hearing on bill, answers and proof in the superior court, the trial justice granted the prayers of the bill and a final decree was duly entered in accordance with his decision. The cause is before us solely on the appeal of Allen & Reed, Inc., hereafter called the respondent.

From the record it appears that the property in question was originally a part of the Dorrance Street Association Plat of 1827. Certified copies of this plat and of an agreement entered into in 1829 by the proprietors of the land covered by the plat are in evidence. The agreement provided that certain streets, gangways and docks shown on the plat shall "forever remain open and unencumbered for the purpose of passing and repassing upon and over the same." The strips of land shown on the plat as included in the respective streets and gangways will be hereinafter referred to as streets and gangways. According to the pleadings, the complainant, the seventy-eight respondents above mentioned and the respondent Allen & Reed, Inc., are all the persons who appear to have any present interest of record in any of the lots originally included in the Dorrance Street Association Plat and the agreement of 1829 in reference thereto.

The evidence is clear that for a period of about forty years the complainant's land described in the bill has been used for the storage of lumber and for a planing mill; that buildings and other structures of a more or less permanent nature were erected on most, if not all, of the streets and gangways; that lumber was piled on the premises to suit the complainant's convenience irrespective of streets and gangways; that during this entire period the land in question, with the exception of a short stretch of boundary towards the Providence river, was enclosed by fences, with gates conveniently located for the complainant's business and under the exclusive control of the complainant; and that, in 1922 following the transfer of a strip of land by the respondent to the complainant, the fence at that place was relocated on the new property line between the two properties.

The gates in the fence that was relocated were likewise in the exclusive control of the complainant. At least since 1922, all gates to the complainant's property were equipped with padlocks on the complainant's side of the fence, and it alone had keys to those padlocks. It was the complainant who determined when the gates should be opened and closed, and no one was allowed access to its premises except on business or with its permission. The following question and answer in cross-examination of Philip Allen, the only witness for the respondent, is worth noting: "Q. Since the time when Allen & Reed sold the strip of land to the Gardiner Lumber Company, have you ever used any of the gangways or docks on the Gardiner Lumber Company's property? A. No."

On April 30, 1937, the complainant entered into a written contract with the respondent Graves whereby the latter agreed to purchase the property involved in this cause provided the complainant's title was free of all encumbrances, excepting a certain mortgage; and provided further that such title was protected by a title insurance policy from a designated company. The title insurance company refused to issue a policy without excepting therefrom the rights of way which possibly might be claimed under the Dorrance Street Association Plat and the agreement in reference thereto already mentioned by us. Graves then refused to accept a conveyance of the property with a title insurance policy containing such exceptions, whereupon the complainant instituted these...