Frank L. Kennedy v. E. P. Robinson

Decision Date04 May 1932
Citation160 A. 170,104 Vt. 374
PartiesFRANK L. KENNEDY ET AL. v. E. P. ROBINSON
CourtVermont Supreme Court

February Term, 1932.

Inadequate Briefing---Waiver of Claimed Error by Failure To Brief---Repeated Trespasses Done or Threatened as Ground for Equitable Relief---Equity---Inopportune Motion for Decree---Highways---Boundaries---Presumption as to Boundary of Land Abutting Highway---When No Presumption Exists as to Extent of Grantor's Title or Intention in Conveying It---Sufficiency of Evidence To Sustain Chancellor's Finding as to Title to Disputed Private Roadway---General Exception to Decree---Exception to Decree as Not Reaching Back of Findings to Evidence.

1. Brief merely stating that defendant's demurrer to bill should be sustained and bill dismissed, and that bill was too indefinite to support any action, held inadequate.

2. Ground of demurrer not briefed is waived.

3. Where bill alleged trespass and expressed intention of defendant to continue objectionable acts, demurrer to bill on ground that plaintiffs had complete and adequate remedy at law was properly overruled, since where repeated trespasses are done or threatened, injunction will lie.

4. Defendant's motion for decree in his favor, made at close of plaintiffs' evidence, held properly denied as inopportune, since it was duty of chancellor to find and state facts.

5. Where one owns land abutting upon highway, there is presumption, in absence of evidence to contrary, that he owns to middle of it.

6. Where one conveys land abutting upon highway, in which he owns fee, presumption is that he intends to convey to middle of highway, and deed will be given such effect, unless language therein shows clear intent to limit grantee to side of highway.

7. In suit alleging plaintiffs' ownership of strip of land about 20 feet in width from certain street to mill property owned by them, and seeking injunction against defendant from his inter- ference therewith, where description of property owned by grantor in deed under which defendant claimed did not appear and there was nothing to show that he held fee of such 20-foot strip or any part of it, no presumption existed as to extent of his title or as to his intent in conveying it.

8. In such suit, weight to be given evidence was for chancellor to decide.

9. In such suit, chancellor's finding that plaintiffs owned in fee private roadway leading from certain street to their mill, held supported by evidence.

10. Exception to chancellor's failure to find "as requested by defendant in items 2, 4 and 8," held too general to reserve any question for review.

11. Exception to decree upon ground that it was not supported by bill, evidence, and findings, and not authorized by law, held not to point out particular defects relied upon, and consequently not to present any question for consideration by Supreme Court.

12. Exception to decree does not reach back of findings to evidence.

APPEAL IN CHANCERY. Bill sought to enjoin defendant from interference with private roadway, from certain street to plaintiff's mill property, claimed by plaintiffs to be owned by them in fee, and to have been continuously used for many years. Defendant's demurrer to bill was overruled and benefit thereof reserved to defendant. Hearing on bill answer, and findings of fact by the Chancellor, at the September Term, 1930, Rutland County, Sturtevant, Chancellor. Decree for plaintiffs. The defendant appealed and filed bill of exceptions.

Decree affirmed.

Hugh Moore for the defendant.

Marvelle C. Webber and Evarts & Perkins for the plaintiffs.

Present POWERS, C. J., SLACK, MOULTON, THOMPSON, and GRAHAM, JJ.

OPINION
MOULTON

The bill of complaint alleges that the plaintiffs are the owners in fee of a certain strip of land, about 20 feet in width, extending easterly from Ascutney Street in the village of Windsor to a mill property owned by them, over which there has been for more than fifty years a well-defined roadway, used continuously as a means of ingress and egress for teams in drawing logs to the mill, and lumber from it, and for general business purposes; that the defendant has caused earth to be drawn and deposited upon the strip of land, so that access to the mill property over the roadway is completely shut off; and that although notified to desist, the defendant replied that he would continue to do so. An injunction is sought against him.

A demurrer was filed, which was overruled, and the benefit thereof reserved to the defendant. The case then proceeded to a hearing upon the issues raised by the bill and answer, and the chancellor, after finding the facts, entered a decree for the plaintiffs. The defendant appealed and also filed a bill of exceptions.

The first ground of demurrer is that the allegations of the bill regarding the plaintiffs' title are vague, indefinite, and uncertain in several designated respects, but it is not indicated wherein the claimed defects affect the sufficiency of the bill. All that is said upon this point in the defendant's brief is the following: "The demurrer should be sustained. The bill should be dismissed. It is too indefinite to support any action." This briefing is altogether inadequate, and there is nothing for our consideration. Dailey v. Town of Ludlow, 102 Vt. 312, 315, 316, 147 A. 771; Capital Garage Co. v. Powell, 97 Vt. 204, 209, 122 A. 423; Drown v. Oderkirk, 89 Vt. 484, 489, 96 A. 11.

The second ground is that the allegations of the bill relating to the acts of the defendant and his expressed intention to continue them are groundless and immaterial. This point is not briefed at all, and therefore is waived. Gray v. Brattleboro Trust Co., 97 Vt. 270, 274, 122 A. 670; Wood v. James, 93 Vt. 36, 43, 106 A. 566.

The third ground of demurrer is that the plaintiffs have a complete and adequate remedy at law. That this contention is unsound is apparent because the bill alleges a trespass and an expressed intention on the part of the defendant to continue the objectionable acts, which is equivalent to a threat to do so. While a remedy at law might be adequate for each single act, if it stood alone, yet, where repeated acts are done or threatened, an injunction will lie to prevent a multiplicity of actions, and the ripening of the occupancy if under a claim of right, into an easement by prescription; and to preserve the property from destruction. Way v. Fellows, 91 Vt. 326, 329, 330, 100 A. 682; Griffith v. Hilliard, 64 Vt. 643, 648, 25 A. 427; Murphy v. Lincoln, 63 Vt. 278, 280, 22 A. 418; Whipple v. Village of Fair Haven, 63...

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  • State v. Walter A. Malmquist
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    ... ... 293, 298, 92 A. 220; Holton v ... Hassam , 94 Vt. 324, 328, 111 A. 389; ... Kennedy v. Robinson , 104 Vt. 374, 376, 160 ... A. 170; Kasuba v. Graves , 109 Vt. 191, 199, ... 194 ... ...
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    ... ... Federal Land ... Bank v. Flanders , 105 Vt. 204, 207, 164 A. 539; ... Kennedy v. Robinson , 104 Vt. 374, 377, 160 ... A. 170; Raithel v. Hall , 99 Vt. 65, 69, 130 ... M. E. Waldo ... Reliance Elect. Co ... H. Stanwood Brooks ... Peck Hardware Co ... Frank ... ...
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    ... ... S. Squires and Marion L. Ward for the ... plaintiffs ...          Goddard & Kennedy for the defendants ...          Present: ... MOULTON, C. J., SHERBURNE, BUTTLES, ... Morgan ... v. Gould, 96 Vt. 275, 280, 119 A. 517; ... Kennedy v. Robinson, 104 Vt. 374, 379, 160 ... A. 170; Lariviere v. Larocque, 104 Vt. 192, ... 195, 157 A. 826; ... ...
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