Daisy Turner, Executrix v. Alba M. Bragg

Decision Date05 October 1943
Citation35 A.2d 356,113 Vt. 393
CourtVermont Supreme Court

May Term, 1943. On Motion for Reargument, November Term, 1943.

Opinion on Motion for Reargument filed January 4, 1944. [Copyrighted Material Omitted]


1. In the absence of some ground for injunctive relief 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 alone afford sufficient ground for a court of equity to ascertain and fix the boundary.

2. It is the better practice for a trial court, in making findings of subordinate facts, to report such findings.

3. When findings of fact are immaterial and may be disregarded without affecting the result of the material findings exceptions thereto are not for consideration on appeal.

4. The appellate court will not search the record to find grounds upon which to predicate error.

5. On appeal it will be assumed, the contrary not appearing, that the trial court considered all of the evidence bearing upon a particular point and made no improper use of such evidence.

6. On appeal the burden is on the excepting party to show harmful error and the risk of failure is upon such party.

7. An exception which requires an examination of the evidence will not be considered where the excepting party does not, in his brief, make specific reference to such parts of the evidence as he deems material, as required by Supreme Court Rule 8 para. 5.

8. While the declarations of deceased persons regarding boundaries may, under certain circumstances, be received in evidence, it must appear that they were made before a controversy had arisen in respect to the boundaries.

9. In applying the rule that declarations of deceased persons regarding boundaries may be received in evidence provided they were made before controversy had arisen, the record must show the absence of such a controversy.

10. In order to make the declarations of a deceased person regarding boundaries admissible it must appear from the record, outside of the declarations themselves, that the declarant had knowledge of the boundaries.

11. The Supreme Court considers only issues raised by exceptions properly taken below and adequately briefed on appeal.

12. Jurisdiction of the supreme court in equity is statutory and the court sits in error only and has no jurisdiction to act as a higher court of equity.

13. The findings of a trial court are to be given the standing of a verdict expressly approved by that court.

14. On appeal the only question which may be raised as to the correctness of findings is whether there is evidence reasonably tending to support them.

15. The weight and credibility of testimony are for the consideration of the trial court and are not to be determined on appeal.

16. It is the general rule that the failure adequately to present a case does not, in a court of last resort, afford a ground for granting a rehearing.

17. In a boundary trial the plaintiff must recover on the strength of his title and not upon the weakness or invalidity of the defendant's title.

BILL IN CHANCERY seeking injunction against trespass upon real estate. In Chancery, Windham County, Adams, Chancellor. Decree for the defendants.

Judgment affirmed.

Natt L. Divoll, Jr. and Herbert S. Avery, of the Massachusetts bar, for the plaintiffs.

Barber & Barber for the defendants.



The plaintiffs are the nine daughters of Alexander Turner, deceased, residuary devisees of his estate, one of whom is the executrix of his will. The bill of complaint alleges that the defendants, Alba M. Bragg and the Bragg Lumber Corporation, have trespassed and cut timber upon certain lands, the property of the estate situated in the town of Athens, and, although warned to desist, have refused to do so and threaten to continue. The prayer is that the defendants may be enjoined from further entry upon the lands, and cutting or removing the timber thereon and for general relief. A. temporary injunction was issued, which was modified by a stipulation between the parties which among other matters permitted cutting on condition that a certain sum per 1000 feet cut should be deposited in trust to await the outcome of the litigation.

Hearing was held before the Chancellor, who, after filing written findings of fact, entered a decree for the defendants to recover their costs. The plaintiffs have brought the cause to this court upon exceptions. It has been here once before upon another issue, Turner v. Bragg, 113 Vt. 156, 30 A.2d 450.

These facts have been found: Alexander Turner in his lifetime owned real estate situated in the Town of Grafton and in the Town of Athens as now constituted. At the time these towns were originally chartered and surveyed they did not abut upon each other, since there was a strip of land lying between them, known as Avery's Gore, which was not included in either. This Gore was bounded on the north by the south line of Grafton and on the south by the north line of Athens. The latter line (to which it will be necessary later to refer in the course of this opinion) is known as the Old Athens line, or the Kelly line. By Act of the Legislature in 1815 a part of the Gore was annexed to the Town of Athens thus making its north boundary to coincide with the south boundary of Grafton.

The property belonging to the Turner Estate consists of three parcels. The first of these (designated on trial as the 50 Acre lot) lies in greater part at least in Grafton; the second (referred to as the 45 Acre lot) is of the same width and adjoins the 50 Acre lot on the south, and is situated in the present town of Athens, both of these parcels together being known as the Wilbur and White property from the names of Turner's grantors; the third, known for a like reason as the Wheelock lot, adjoins the Wilbur and White lots on the east and is in the present Town of Athens.

The trespasses complained of are claimed to have been committed on the 45 Acre lot and the plaintiffs rely upon their record title. The deed from Vestus A. Wilbur and Charles White to Alexander Turner, dated October 13, 1881, describes the land so conveyed as being all and the same land conveyed to the grantors by Henry A. Thompson, by deed dated February 17, 1872. The deed from Thompson to Wilbur and White describes the property as bounded "on the south by land of Tisdale Porter and C. C. Fairbanks.... meaning by these presents to convey the same and all the land described in a deed from Nathan Wheeler to Joel Smith dated March 18, 1830." Henry Thompson derived his title from Stillman Thompson by deed dated March 2, 1871, describing the southern boundary as lands of Tisdale Porter and C. C. Fairbanks and referring to the deed from Wheeler to Smith. The Wheeler-Smith conveyance gives the southern boundary of the 45 Acre lot as "the old Athens Line" (the Kelly line, so called). There is no finding as to the source of Stillman Thompson's title, but the Chancellor has placed the northern line of the Tisdale Porter land south of the Kelly line, thus apparently assuming that Stillman Thompson owned property as far south as the Tisdale Porter lot and conveyed it by his deed to Henry Thompson.

Alexander Turner purchased the Wheelock lot from Henry H. Wheelock on April 7, 1884, the description being of land bounded on the north by land of Wheelock and Dexter Conant, west by land formerly of Wilbur and White and now by Alexander Turner, south by land of Butterfield and Smith and east by land of Town-send and Clark. The Clark lot is thus described in a former deed from Joseph Tinkham to Benjamin Smith, given in 1839: "Beginning at Tisdale Porter northeast corner thence north twenty rods to what is known by the name of the Kelly line thence west on said Kelly line to a small birch tree marked for a corner thence south twenty three rods to a stake and stones standing on Tisdale Porter north line thence east 3 1/2 degrees north on said Porter's line fifty rods and ten links to the place of beginning containing six acres 115 rods of ground." The Townsend property lies directly east of the Clark lot and the Chancellor finds that it cannot be a part of the easterly boundary of the Wheelock lot, the deed so describing it being erroneous in this respect.

The defendant Alba M. Bragg is the owner of the Tisdale Porter land which lies south of the plaintiff's 45 Acre lot (the Wilbur and White property) and is described as bounded on the north and west by the Wilbur and White land. As to the other land described as part of the southern boundary of the 45 Acre lot, stated to be owned by C. C. Fairbanks, no evidence was introduced of any record title of Fairbanks to land in that locality, and the Chancellor is unable to find where it is situated.

The Chancellor viewed the premises and has found that the Kelly line is marked by a line of stone piles beginning on the easterly side of the old Athens-Grafton road, and extends westerly along the northerly boundary of the Townsend and Clark lots to and beyond a point 23 rods northerly from a stake and stones marking the southwest corner of the Clark lot. The point at which the stone piles commence at the easterly side of the road just mentioned is the north east corner of the Townsend lot. The Wheelock lot, now owned by the plaintiffs, lies north of the Clark and Townsend lots. The Chancellor is unable to find who owns a small piece of land situated between the westerly boundary of the Clark lot and the easterly boundary of the 45 Acre lot, but does find that the defendant Bragg does not own or claim to own it.

It is found that the...

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6 cases
  • Union Twist Drill Co. v. Erwin M. Harvey, Commr. of Taxes
    • United States
    • Vermont Supreme Court
    • May 2, 1944
    ... ... Turner v. Bragg , 113 Vt. 393, 35 A.2d 356, ... ...
  • Aram Dicranian v. Carl Foster
    • United States
    • Vermont Supreme Court
    • February 5, 1946
    ... ... predicate error. Turner v. Bragg, 113 Vt ... 393, 399, 35 A.2d 356; Utley v ... ...
  • Wells v. Burlington Rapid Transit Co.
    • United States
    • Vermont Supreme Court
    • November 1, 1949
    ... ... merits no consideration here. Turnertion here. Turner v ... Bragg ... ...
  • In re Taft's Estate
    • United States
    • Vermont Supreme Court
    • October 1, 1946
    ... ... findings are not for consideration. Turner ... findings are not for consideration. Turner v ... Bragg ... ...
  • Request a trial to view additional results
1 books & journal articles
  • Gussets of Land
    • United States
    • Vermont Bar Association Vermont Bar Journal No. 2007-03, March 2007
    • Invalid date
    ...nor the trespasser he sought to eject could show belonged to either, nor could the towns sustain that burden either. Turner v. Bragg, 113 Vt. 393 (1943). 11. Randall v. Moody, 87 Vt. 68 (1913). 12. Hovey v. Cook, 83 Vt. 458, 460 (1910). 13. Sometimes, however, the legislature awarded charte......

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