Fisher v. Poole, 240-81

• Decision Date: 02 November 1982
• Docket Number: No. 240-81,240-81
• Court: Vermont Supreme Court
• Parties: Roderick and Susan FISHER v. Archibald J. POOLE.

Page 408

453 A.2d 408

142 Vt. 162

Roderick and Susan FISHER v. Archibald J. POOLE.

No. 240-81.

Supreme Court of Vermont.

Nov. 2, 1982.

Lisman & Lisman, Burlington, for plaintiffs-appellants.

Cleveland, Unsworth, Bennett & Bailey, Shelburne, for defendant-appellee.

Before BARNEY, C.J., and BILLINGS, HILL, UNDERWOOD and PECK, JJ.

HILL, Justice.

The plaintiffs, Roderick and Susan Fisher, appeal an order to remove that portion of their garage which was found to encroach upon the land of defendant Poole. In addition, they appeal the superior court's dismissal on the merits of their consolidated action. We reverse the order to remove the garage, and remand the entire case for further findings in accordance with this opinion.

The dispute centers around a piece of property, once owned by the defendant, located on the southerly side of Thomas Road in Shelburne, Vermont. The case was tried to the court, which found the following facts. On August 4, 1971, Roderick Fisher approached the defendant to inquire about the possibility of purchasing the property. The defendant told plaintiff that he was willing to sell the frontage property, but indicated that there was some question as to its value, since the last potential buyer had decided against the purchase due to his inability to obtain a town building permit. Confident that he would be able to secure the necessary building permits, the plaintiff decided to pursue the sale.

On or about August 11, 1971, both parties met to inspect the property. During the inspection, they identified five of the six boundary markers. Defendant took measurements of the various property lines while plaintiff recorded them. The section of property fronting on Thomas Road, measured to be 190 feet, represented the total distance between the boundary lines of the two adjacent landowners. After taking measurements of the property, plaintiff explained to defendant his plans to build a house and garage, and the parties drove a stake into the ground marking the approximate location of the proposed structures.

The sale was conditioned upon plaintiffs' agreement to allow defendant the use of a section of the property for access to a 70 acre parcel located behind the property plaintiffs were planning to buy. The trial court characterized the condition as a "gentleman's agreement" to allow defendant to "go back to" his other land. Despite the agreement, there was no discussion as to the size and location of that section of property to be used for access.

Two days later, on August 13, 1971, plaintiffs paid the defendant $3500, the agreed purchase price of the property. There was no written purchase and sale agreement and, at the time of the payment, there was no execution or delivery of any deed. On a number of subsequent occasions, plaintiffs requested a deed to the property, but the execution and delivery of a warranty deed was not to take place until October 31, 1972.

On October 2, 1972, almost a full month prior to the delivery of the deed, the plaintiffs received a building permit for a house and garage. The permit was based on the measurements taken by defendant and submitted by plaintiffs. The plaintiffs immediately commenced construction of the garage at a point they believed to be fifty feet from the western side of the property that both parties had previously walked. Construction of the garage was completed prior to the delivery of the deed.

On October 31, 1972, a duly executed warranty deed was delivered to plaintiffs. However, the deed contained a description of the property substantially at odds with what was measured and "walked" at the August 11, 1971, inspection. Specifically, a 40 foot right of way extending along the western side of plaintiffs' property, from Thomas Road to defendant's back property, was reserved by defendant. Furthermore, defendant reserved the right to expand the right of way to 60 feet should the town zoning laws change. The plaintiffs were given an easement over the right of way for access to their house and garage. A subsequent survey of the property indicated that in fact the frontage on Thomas Road was only 180 feet. Thus, the practical effect of the deed reservation, coupled with the 10 foot mistake, was to place the garage substantially within the reserved right of way.

The plaintiffs alleged that defendant and his agents were continuously trespassing and damaging sections of their property not connected to the right of way. Plaintiffs further alleged that they were being harassed by the trespassers. Finally, the plaintiffs argued that even if a limited easement for access was reserved, the defendant had greatly exceeded its scope, therefore voiding it. The defendant denied the above allegations, demanded that those sections of plaintiffs' garage encroaching on this right of way be removed, and sought damages for the lost opportunity to sell the 70 acre parcel as a result of his inability to convey a clear right of way.

The trial court held that the 40 foot strip, as a matter of law, had been reserved by the defendant. Plaintiffs' use of the right of way was limited to access to the newly purchased parcel only. Accordingly, the trial court ordered the plaintiffs to remove the encroaching sections of the garage, since they substantially impaired the fair market value of the back parcel. It is this order, along with the trial court's dismissal on the merits of their action, that plaintiffs appeal.

Plaintiffs contend that even if defendant's reservation of the right of way was proper, he should have been estopped from challenging the location of the structure due to the totality of circumstances surrounding the transaction. We agree.

We begin from the premise that the findings of the trial court will not be reversed unless they are clearly erroneous. Vaughan v. Tetzlaff, 141 Vt. 150, ---, 446 A.2d 356, 357 (1982) (citing Frogate v. Kissell, 138 Vt. 167, 168, 412 A.2d 1138, 1139 (1980)); V.R.C.P. 52(a). In situations where there is a misunderstanding between the parties as to the boundaries of the land conveyed or the amount of acreage contained therein, "resort must be had to the language of the deed, since the understanding of the parties must be deemed to be that which their own instrument declares." Downer v. Gourlay, 133 Vt. 544, 546, 349 A.2d 707, 708 (1975); Haklits v. Oldenburg, 124 Vt. 199, 202, 201 A.2d 690, 692 (1964). The deed is effective on the date of delivery. Bove's Executor v. Bove, 116 Vt. 76, 86, 70 A.2d 562, 568 (1950).

The findings indicate that the parties entered into an oral agreement to convey the property for $3500. This agreement was reflected in the warranty deed executed by the parties on October 31, 1972. The deed description provides, in pertinent part:

Said parcel of land is bounded ... on the west by a strip of land 40 feet in width running along the westerly boundary line of the within Grantor's property as above described. Said 40 foot strip is being retained by the within Grantor for the purpose of providing access to his remaining property.

....

The Grantees, their heirs and assigns, shall have the use of said strip of land for the purpose of ingress and egress to the above described parcel of land as said strip runs along the westerly line of the lot herein conveyed, in common with the within Grantor ....

Both parties read the deed, made no objections to its provisions, and completed the formalities of execution and delivery. Although one of the plaintiffs, Roderick Fisher, testified that he did not understand the provisions of the deed, the trial court was unable to find what it was that plaintiff could not understand. Based upon the above uncontroverted evidence, the trial court properly held that the controversial right of way was, as a matter of law, retained by the defendant and was not part of the conveyance to plaintiffs. However, our inquiry does not end here, for the plaintiffs claim in the alternative that the trial court erred in failing to invoke the doctrine of equitable estoppel to prevent defendant from challenging the location of the garage.

This Court has, on numerous occasions, set forth both the rationale and the elements of equitable estoppel. "The doctrine of [equitable] estoppel is based upon the grounds of public policy, fair dealing, good faith, and justice, and its purpose is to forbid one to speak against his own act, representations or commitments to the injury of one to whom they were directed and who reasonably relied thereon." My Sister's Place v. City of Burlington, 139 Vt. 602, 609, 433 A.2d 275, 279 (1981) (quoting Dutch Hill Inn, Inc. v. Patten, 131 Vt. 187, 193, 303 A.2d 811, 815 (1973)); Caledonia Sand & Gravel Co. v. Campbell, 128 Vt. 182, 185, 260 A.2d 221, 223 (1969). In applying the benefits of estoppel, the representations need not be fraudulent in a strict legal sense. Rather, "[t]he test is whether, in all the circumstances of the case, conscience and duty of honest dealing should deny one the right to repudiate the consequences of his representations or conduct." Neverett...