Curtis v. O'Brien, 1027

• Decision Date: 06 November 1951
• Docket Number: No. 1027,1027
• Citation: 117 Vt. 52,84 A.2d 584
• Court: Vermont Supreme Court
• Parties: CURTIS v. O'BRIEN et al.

Page 584

84 A.2d 584

117 Vt. 52

CURTIS v. O'BRIEN et al.

No. 1027.

Supreme Court of Vermont.

Nov. 6, 1951.

Vernon J. Loveland, Donald H. Hackel, Rutland, for plaintiff.

Thomas F. Mangan, Rutland, Edwards & Bigelow, Bellows Falls, for defendants.

Before SHERBURNE, C. J., and JEFFORDS, CLEARY, ADAMS and BLACKMER, JJ.

SHERBURNE, Chief Justice.

This is a petition to the court of chancery in Rutland County for a declaratory judgment to settle a boundary dispute in wild woodland territory in Fair Haven. It alleges that the plaintiff is the owner in common of real estate known as the Burns lots by virtue of four quitclaim deeds from the heirs of John, George and Bridget Burns, of which it only gives the dates and books and pages where recorded, and that the defendant O'Brien claims to be the owner of a lot of land under a deed in which the premises are described as follows: 'Bounded on the north by land of Terence Sloan; on the east by Glen Lake, so-called, on the south by lands of H. K. Sheldon and George Burns and on the west by lands of Mrs. Patrick Leamy, containing 40 acres more or less, * * *'. The petition further alleges that defendant O'Brien claims and has marked out in paint a boundary upon plaintiff's land more than 90 rods sought of said O'Brien's true boundary line, and enclosing approximately 120 acres and much more land than his said deed calls for; that the plaintiff is informed and believes and therefore alleges that said O'Brien is entering or has entered into a contract with defendant Gilmore for the sale of all or a part of his said premises; that both of the properties are unenclosed and unoccupied; that said O'Brien's boundary claim prevents the plaintiff from disposing of his interest in said property, and from enjoying the full use and benefit thereof; that the plaintiff fears said O'Brien may acquire some rights by adverse possession; that the plaintiff has no adequate remedy at law; and that the plaintiff has suffered, is suffering, and is threatened with further sufferance of irreparable loss and injury. The defendants demurred upon the grounds of lack of equity jurisdiction, an adequate remedy at law, and that, because the court will have to pass upon disputed questions of fact, no proper case for a declaratory judgment has been made out. In oral argument below the additional ground was urged that boundary disputes generally are not proper subjects for declaratory judgments, because the actions of trespass and ejectment will settle the problem as expeditiously. The demurrers were overruled and the defendants have excepted.

The Uniform Declaratory Judgments Act is set forth in V.S.1947, Chapter 77, §§ 1629 to 1644. Section 1629 provides: 'County courts, courts of chancery and probate courts within their respective jurisdictions shall have power to declare rights, status and other legal relations whether or not further relief is or could be claimed. * * *'

Sections 1630 to 1632 enumerate special instances where this remedy is available. Section 1633 provides: 'The enumeration in the three preceding sections does not limit or restrict the exercise of the general powers conferred in section 1629, in any proceeding where declaratory relief is sought, in which a judgment or decree will terminate the controversy or remove an uncertainty.'

Section 1634 provides: 'The court may refuse to render or enter a declaratory judgment or decree where such judgment or decree, if rendered or entered, would not terminate the uncertainty or controversy giving rise to the proceeding.'

Section 1637 provides: 'When a proceeding under this chapter involves the determination of an issue of fact, such issue may be tried in the court in which the proceeding is pending and determined in the same manner as issues of fact are tried and determined in other civil actions.'

Section 1640 provides: 'This chapter is declared to be remedial. Its purpose is to settle and to afford relief from uncertainty and insecurity with respect to rights, status and other legal relations and is to be liberally construed and administered.'

Section 1643 provides: 'This chapter shall be so interpreted and construed as to effectuate its general purpose to make uniform the law of those states which enact it, and as far as possible to harmonize with Federal laws and regulations on the subject of declaratory judgments and decrees.'

Under the provisions of § 1629 it is clear that such a petition cannot be brought to the court of chancery unless such facts are alleged as will give that court jurisdiction of the subject matter. Referring to the words 'within their respective jurisdictions' it is stated in Maine Broadcasting Co., Inc., v. Eastern Trust & Banking Co., Me., 49 A.2d 224, 225, 'The purpose of this statute is not to enlarge the jurisdiction of the courts to which it is applicable but to provide a more adequate and flexible remedy in cases where jurisdiction already exists. The act by its very terms so indicates.' This case quotes the following from Anderson, Declaratory Judgments, 81: '* * * it is the undoubted weight of authority, sustained upon unassailable reasons, that the declaratory judgment statutes do not have the effect of increasing or enlarging the jurisdiction of the courts.' It also quotes from Borchard, Declaratory Judgments, 2d ed. 233, as follows: 'It is an axiom that the Declaratory Judgments Act has not enlarged the jurisdiction of the courts over subject matter and parties, although it manifestly has opened to prospective defendants--and to plaintiffs at an early stage of the controversy--a right to petition for relief not heretofore possessed. In that sense, it has decidedly extended the power of courts to grant relief in cases otherwise within their jurisdiction to pass upon.' See also 62 Harvard Law Review 787, 798.

In the absence of some ground for injunctive relief, such as irreparable damage or threatened trespasses, it is not the business of equity to try titles to real estate, and the existence of a dispute as to the boundary between adjoining lands does not afford sufficient ground for a court of equity to ascertain and fix the boundary. Turner v. Bragg, 113 Vt. 393, 397, 35 A.2d 356; Aguirre v....