Dessureau v. Maurice Memorials, Inc., 217-73

• Decision Date: 02 April 1974
• Docket Number: No. 217-73,217-73
• Citation: 132 Vt. 350,318 A.2d 652
• Parties: John DESSUREAU et al. v. MAURICE MEMORIALS, INC., et al.
• Court: Vermont Supreme Court

Page 652

318 A.2d 652

132 Vt. 350

John DESSUREAU et al. v. MAURICE MEMORIALS, INC., et al.

No. 217-73.

Supreme Court of Vermont.

April 2, 1974.

Robert J. Kurrle, Montpelier, for plaintiffs.

Reginald T. Abare, Barre, for defendants.

Before SHANGRAW, C. J., and BARNEY, SMITH, KEYSER and DALEY, JJ.

DALEY, Justice.

The plaintiffs, John Dessureau and James W. McLam, brought an action in the Washington County Court seeking to enjoin the defendants, Maurice Memorials, Inc., and others, from trespassing upon property which the claim to own in Barre, Vermont. The cause was heard by the judge of the Washington County Court, sitting without a jury, upon an agreed statement of facts and issues, resulting in a judgment for the plaintiffs.

The property, located in Barre, Vermont, is the easterly half of an abandoned railroad right-of-way, which runs generally north to south, abutting the plaintiffs on the east and the defendants on the west. The property was originally owned by one W. D. Hooker in fee simple. The White River Railroad Company took the property under the authority of condemnation proceedings on November 8, 1887. See sections 3356-3362 of the Revised Laws of Vermont (1880). The taking, pursuant to statutory authority, gave the railroad only an easement, not a fee, and upon abandonment, the property reverts to the former owner. Troy & Boston R. R. Co. v. Potter, 42 Vt. 265, 274 (1869). In 1955, the railroad right-of-way was abandoned by the then owner, Central Vermont Railway, Inc.

In order to maintain an action in trespass, one must show right to immediate possession. Huntley v. Houghton, 85 Vt. 200, 205, 81 A. 452 (1911). Such right to possession is presumed to be with the holder of legal title, absent a showing to the contrary. Laird Properties v. Mad River Corporation, 131 Vt. 268, 277, 305 A.2d 562 (1973). Therefore, the issue in this case centers on whether the plaintiffs were the holders of legal title to the property in question.

The plaintiffs claim title to the easterly half of the former abandoned railroad right-of-way by virtue of an administrator's deed from the Estate of W. D. Hooker, to Julia Ann Hooker, his widow, dated September 23, 1889, and a successive chain of title. This disputed property abuts onto the westerly side of lots to which the plaintiffs presently hold undisputed legal title.

The defendants presently hold undisputed legal title to lots which abut onto the westerly boundary of the abandoned right-of-way. They challenge the plaintiffs' claim of legal title by claiming title to the entire right-of-way by virtue of conveyances from the surviving descendants of W. D. Hooker. They also allege that they have received such interest, right, and title as all the surviving descendants of W. D. Hooker had in the disputed property represented by the former railroad right-of-way.

The parties have stipulated in the agreed statement of facts that Exhibit No. 1, which is a plan of the lots on the Hooker Estate dated June, 1889, controls all deeds and plan descriptions. This exhibit shows that the westerly boundary of the plaintiffs' undisputed lots is the easterly boundary of the now abandoned railroad right-of-way and that the easterly boundary of the defendants' undisputed lots is the westerly boundary of that right-of-way.

It has long been the law of this State, and the trial court so concluded, that a railroad is an improved highway; and property taken for its use by legislative authority is property taken for public use and is the same as if it were taken for any other highway. White River Turnpike Co. v. Vermont Central R. R. Co., 21 Vt. 590, 594 (1849). There is a legal presumption that the owner of lands adjoining a public way owns to the center line of the highway. Murrary v. Webster, 123 Vt. 194, 199, 186 A.2d 89 (1962). In the absence of evidence showing the fact to be otherwise, and if there be a doubt which is intended, the law will resolve the doubt in favor of the center. Id.; Maynard v. Weeks, 41 Vt. 617, 619 (1869); Marsh v. Burt, 34 Vt. 289, 290-291 (1861).

The defendants contend that their claim to legal title of the entire abandoned railroad right-of-way by virtue of the surviving descendants of W. D. Hooker could overcome the...