City of Montpelier v. Bennett

• Decision Date: 01 May 1956
• Docket Number: No. 1835,1835
• Parties: CITY OF MONTPELIER v. DuBois B. and Jeannette L. BENNETT.
• Court: Vermont Supreme Court

Page 779

125 A.2d 779

119 Vt. 228

CITY OF MONTPELIER v. DuBois B. and Jeannette L. BENNETT.

No. 1835.

Supreme Court of Vermont.

May 1, 1956.

Rehearing Denied Oct. 2, 1956.

John D. Paterson, Montpelier, for plaintiff.

C. O. Granai, Barre, for defendants.

Before JEFFORDS, C. J., and CLEARY, ADAMS, CHASE and HULBURD, JJ.

ADAMS, Justice.

This is a proceeding in chancery. The pleadings consist of the bill of complaint, the defendants' answer and cross-bill and the plaintiff's replication.

The matter involves the rights of the respective parties in and to a piece of land now abutting, on its westerly side, the present three lane highway between the cities of Montpelier and Barre, known as U. S. Route 302, the southerly boundary of the piece in question being the line between the city of Montpelier and the town of Berlin. The piece extends from that line northerly a distance of approximately 290 feet and it is approximately 3 rods in width. Its center line is the center line of the old two lane cement highway as it existed at that point in 1926.

The controversy arises because of a change in the location of the highway by the construction of a three lane highway on land acquired by the plaintiff, the land so acquired having for its westerly boundary, the easterly boundary of the land in question. The purpose of the change was to eliminate a curve.

The plaintiff, in its bill of complaint, claims title in fee to the land in question and alleges continued trespasses thereon by the defendants by placing thereon dirt, rocks and other materials, by filling-in said land and by placing thereon used motor vehicles. It seeks to enjoin the defendants from continuing their trespasses and for an order requiring the defendants to remove the dirt, rocks and other materials and the used automobiles.

The defendants by their answer deny the plaintiff's title, deny the trespasses and claim to own the land as abutting owners by virtue of V.S. 1947, § 5098. They allege in their cross-bill that the plaintiff abandoned part of the former highway by relocating the same and establishing and maintaining the relocated road, that they are the owners in fee of the land abutting the discontinued and abandoned highway and as such, by virtue of V.S. 1947, § 5098, are the owners of the land westerly of the relocated road and it should be set to them as owners in fee. They ask that the injunction be dissolved, that the plaintiffs' bill be dismissed and that the abandoned road abutting the land of the defendants be decreed and set to them.

The case was heard by the chancellor on the pleadings and oral testimony introduced by both parties. Findings of fact were made and filed. A decree was entered in favor of the plaintiff and an injunction issued against the defendants.

The case is here on various exceptions of the defendants which we will particularly specify in our discussion of them.

At the close of the plaintiff's evidence, the defendants moved that the plaintiff's bill of complaint be dismissed. The motion was denied subject to an exception. This is the first one briefed by the defendants. The motion was in substance based upon the proposition that the plaintiff had not established title in fee to the land in question and that when the highway was altered and its location changed, the land comprising the old location reverted to the defendants as abutting owners.

The motion was premature, since it was made before the findings of fact were prepared and filed. V.S. 1947, § 1302 in conjunction with § 2121, contemplates that the facts must be found before a bill of exceptions is allowed. It is the same in chancery as in law cases. Raithel v. Hall, 99 Vt. 65, 70, 130 A. 749; Kennedy v. Robinson, 104 Vt. 374, 377, 160 A. 170; Sparrow v. Cimonetti, 115 Vt. 292, 303, 58 A.2d 875. There was no error in denying the motion.

The defendants excepted to findings 3, 5, 6, 7, 8, 9, 12, 13, 14, 15, 16, 17, 18, 19, 22, 23, 24, 25, 26, 27, 29, 31 and 32. They have not briefed the exceptions to findings 3, 7, 14 and 19 and to the chancellor's failure to find as requested so they are waived. Strout Realty Agency v. Wooster, 118 Vt. 66, 71, 99 A.2d 689.

Before we discuss the exceptions to the various findings, it is advisable that we state some general rules that apply to the consideration of exceptions to findings. The credibility of the witnesses and the weight to be given to their testimony is not for us, but for the trial court to determine. A finding must stand if there is legitimate evidence fairly and reasonably tending to sustain it; if this is so, the fact that the evidence is conflicting cannot avail the excepting party, for all conflicts must be resolved against him on review. We must read the evidence to support the findings, if reasonably possible, when considered as a whole. Sparrow v. Cimonetti, supra, 115 Vt. 292, 297-298, 58 A.2d 875; State v. O'Connell, 118 Vt. 55, 58, 99 A.2d 705; Bagalio v. Hoar, 118 Vt. 384, 388, 110 A.2d 719.

In order to better understand our discussion of the exceptions to the findings and the disposition of them, it is necessary to summarize the findings to which no exceptions were taken or to which exceptions are not briefed. The claim of each party is to an area of land 3 rods wide and approximately 290 feet long, located immediately west of the present highway U. S. Route 302, a much travelled highway, extending north and south between the cities of Barre and Montpelier. At the point in question, it consists of three lanes and is 30 feet wide, plus a 9 foot shoulder on each side. The strip in question is that used for highway purposes from 1926 to 1941, when U. S. Route 302, then consisting of 2 cement lanes with black top shoulders was relocated by the plaintiff in cooperation with the state. In May, 1941, the defendants by warranty deed conveyed to the plaintiff the land located between the area in controversy and the center line of the relocated highway. Upon completion of the relocated highway, the old highway was discontinued for through-traffic purposes. In 1945, the defendants acquired certain land and premises situated westerly of the area in question. In the fall of 1945 and during the years 1946 to 1949 inclusive, the defendants graded, bulldozed and filled the area in question. This filling was within 2 or 3 feet of the west side of the new road at the north end of the area in question and 6 feet at its south end. It varies in depth from 3 to 7 feet and is now approximately 4 feet above the level of the present road.

The defendants excepted to finding 5. It states, 'In 1941 the plaintiff, in collaboration with the state, undertook to straighten and eliminate a curve in this highway * * *, in so doing the highway at this point was moved so that the new highway (1941) was entirely east of the old highway (1926) * * *.' We now quote from the defendants' brief, 'This exception is directed against the phraseology of the finding, rather than to the finding itself, in that the chancellor states, 'that the plaintiff, with the state undertook to straighten and eliminate a curve in this highway; in so doing the highway at this point was moved.' The defendants say that the highway was altered so that the new highway (1941) as relocated was entirely east of the old highway (1926). There is no evidence of the word 'moved' being used in regard to the old highway, for it was relocated.' From their brief, the defendants apparently object to the word 'moved' in the finding. Other findings, not excepted to or to which the exceptions are not briefed specify that the highway 'was relocated by the plaintiff in cooperation with the state', also 'Upon completion of the relocation and alteration of the main highway at this point, the new highway was entirely east of the old highway * * *.' When taken in connection with the other findings, there can be no question that the word 'moved' as used by the chancellor meant the relocation and alteration in the highway and not 'moved' physically. The exception is too trivial to need further attention or discussion.

Finding 6 described the terminus of the most southerly end of the area in question as the plaintiff-Berlin town line and a part of the main highway known as River Street in the plaintiff city. The evidence was uncontradicted that the southerly terminus was the city and town line set forth in the finding and which was also the northerly boundary of the Wayside Lunch property. One ground of the exception to the finding was that its southerly boundary was the Wayside Lunch property. This ground of the exception is without merit. A further ground of the exception was that the area in question was no longer a part of River Street. We will cover that part of the exception in our discussion of exceptions to other findings.

Finding 8 sets forth the distance of 36.5 feet from the center line of the present highway as relocated in 1941 to the easterly edge of the old highway or 3 rod strip here in question at its southerly end; the distance of 290 feet to its northerly terminus and at that point the distance of 5 feet from the center line of the relocated highway to the easterly edge of the old highway or area in dispute; that from that point, the center line of the new pavement continues to approach the center line of the old highway, 'the over-all effect being a straightening and widening of the highway at this point and the elimination of a sharp curve, (see plt's 6).' The exception is 'that the old highway was not straightened and widened but was altered and relocated and has not been any part of the travelled highway since 1941.' Thus it was contrary to the evidence and the law.

The defendants say in their brief, 'There is no evidence that 'the over-all effect being a straightening and widening of the highway at this point and elimination of a sharp curve, see plt's. ex. 6.' There was an alteration and relocation of a new highway. The evidence is clear...