City of Montpelier v. John Mcmahon
| Decision Date | 08 December 1911 |
| Citation | 81 A. 977,85 Vt. 275 |
| Parties | CITY OF MONTPELIER v. JOHN MCMAHON |
| Court | Vermont Supreme Court |
May Term, 1911.
APPEAL IN CHANCERY. Heard on the pleadings, master's report, and defendant's exceptions thereto, at the March Term, 1911 Washington County, Miles, Chancellor. Exceptions overruled pro forma, and decree for the orator in accordance with the prayer of the bill. The defendant appealed. The opinion states the case.
Decree affirmed and cause remanded.
Frederick P. Carleton and Fred B. Thomas for the orator.
Harry C. Shurtleff for the defendant.
Present ROWELL, C. J., MUNSON, WATSON, HASELTON, AND POWERS, JJ.
This is a bill in chancery. The defendant is the owner of land abutting on Northfield street, so called, in the city of Montpelier. The bill alleges, among other things, that the defendant is threatening to build a piazza on a part of the street used for a sidewalk, and that he thereby threatens great injury to the inhabitants of Montpelier and of the State at large and that no adequate remedy at law can be had. The bill prays that the defendant be enjoined from so occupying the sidewalk. In his answer the defendant admits his intention to build a piazza on a part of the land used as a sidewalk; but he claims ownership of the land on which he intends to build, and asserts his right to build thereon. The case was referred to a special master, and upon his report a decree was rendered in accordance with the prayer of the bill. The defendant appealed.
The property of the defendant on Northfield street consists of lots and houses extending along that street from its intersection with Berlin street; and the question of the location of Northfield street along past the defendant's real estate is the issue, or one of the issues, in this case. In the summer of 1909, the defendant began to build a piazza on the street side of one of the houses mentioned and on land which the city claimed was a portion of Northfield street. The bringing of this bill and the issuance of a temporary injunction followed.
The orator claims that the land in question is a part of the street by dedication, by virtue of a re-survey of the street, and by prescription. The claim of prescription, or adverse use, is based upon the finding that for many years, twenty-five or thirty, some people in going along Northfield street to and from Berlin street used a sort of a path which ran somewhere between the houses above referred to and a row of trees standing along the side of the street. It is so clear that the doctrine of adverse possession or use, cannot here be successfully invoked that we do not deem it necessary to discuss the law in that regard nor to go into the details of the evidence relied on under the claim of adverse use.
We consider now the question of dedication. In 1889, one Johonnott was the owner of the property in question and in that year the street committee of the city council met Mr. Johonnott on the premises and an agreement was entered into between them that the city would relinquish to Mr. Johonnott a part of Berlin street and that Mr. Johonnott would relinquish to the city, for street purposes as we must understand, a strip of land on the Northfield street side of his property, and the lines on the Berlin street side and the Northfield street side were then agreed upon, and the corner of the two streets was then fixed, and the next day it was marked by an iron pipe driven into the ground. The strip of land relinquished by Mr. Johonnott extended the whole length of the defendant's property on Northfield street. The next year, May 19, 1900, the defendant purchased of Johonnott, taking a warranty deed. Prior to giving the deed the grantor employed one Smith, a civil engineer, whose competency was conceded by the defendant, to survey the land. When the survey was made both Mr. Johonnott and the defendant were present. At the suggestion of Johonnott the surveyor took as his starting point the corner agreed upon between him and the city council during the summer before; from thence there was made around the lot a survey which was followed in the description of the deed afterwards given by Johonnott to the defendant. When the deed was given, the grantor told the defendant about the exchange of land agreed upon, as hereinbefore stated, and the defendant then knew how much land was to be given up by the city on the Berlin street side, but it does not appear that he then had information as to where the agreed line on the Northfield street side was further than that the agreed corner was pointed out to him, that he had been present when the survey was made, and that he had the information contained in his deed. As to this survey the master finds that on account of local magnetic attraction the needle of the compass could not be accurately relied upon.
In the following year, 1901, the city council caused to be made what is called a re-survey of Northfield street, and in making such survey it employed the same civil engineer who had surveyed for the defendant's grantor in the year previous. Of this survey the master finds that it was made "in accordance with the agreement made with Mr. Johonnott in 1899, " at the time of the exchange of land, and it appears from the report that this survey corresponds substantially with the former.
In 1902, the city built along Northfield street adjacent to the defendant's property a plank sidewalk the edge of which, next to the defendant's property, extended to within two or three inches of the street line of the survey last mentioned, which, as the master finds, follows the agreement made between the city and the defendant's grantor at the time of the exchange between them. This sidewalk has remained in the same place from the time of its building until the present, and is the one which the defendant has been enjoined from building a piazza over.
So far as the agreement of exchange was for the benefit of Johonnott or his grantee, the defendant, it was also acted upon, for the designated land on Berlin street side was made a part of the lawn of a house on the defendant's property and it was, and is, inclosed as a part of the lawn.
The facts recited show an unequivocal dedication...
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