Fred A. Barrell v. Ellen Renehan

Decision Date03 October 1944
Citation39 A.2d 330,114 Vt. 23
PartiesFRED A. BARRELL v. ELLEN RENEHAN
CourtVermont Supreme Court

May Term, 1944.

Title to Land by Adverse Possession.

1. An objection to jurisdiction of the subject matter of a suit is never out of time.

2. If a trespass is continuous in its nature, if repeated acts of wrong are done or threatened, even though each single act may not be destructive and the legal remedy therefor be adequate the entire wrong will be enjoined on the ground of avoiding a repetition of similar actions.

3. Title to land by adverse possession may be gained by a possession which is open, notorious, hostile and continuous for a period of 15 years.

4. The requirement of continuous possession for gaining title by adverse possession may be satisfied by repeated acts of occupancy; whether the time between such acts of occupancy interrupts the running of the period depends upon circumstances and the intention of the occupier.

5. The appellate court will assume in support of a decree that the Chancellor inferred such facts from those certified up as he ought to have inferred or as he might fairly have inferred.

6. There is a presumption that the use of land by one who has the legal title of record thereto is the exercise of his right to enjoy it; such use, if in exercise of the right of ownership, interrupts the continuity of adverse possession by another.

7. To establish a boundary line by acquiescence, there must be a mutual recognition of a given line by the adjoining owners and continuous possession up to the line so recognized for a period of 15 years.

8. An exception to a decree does not reach back of the findings to the evidence.

BILL IN CHANCERY for an injunction, determination of a boundary and damages. In Chancery, Windsor County, Black, Chancellor. Decree for the plaintiff.

Decree affirmed.

Loren R. Pierce for the defendant.

Alban J. Parker for the plaintiff.

Present MOULTON, C. J., SHERBURNE, BUTTLES, STURTEVANT and JEFFORDS JJ.

OPINION
BUTTLES

The plaintiff and defendant in this chancery suit own and occupy adjoining parcels of land in the town of Hartford, the lands of the plaintiff lying northerly and westerly of the defendant's house lot. The plaintiff claims to own to a line about 218 feet northerly of the defendant's southern boundary, while the defendant claims to a line about 22 rods from her southern boundary. The prayer of the bill is for an injunction against interference with the plaintiff's alleged possession of the intervening land, for determination of the boundary between the premises of the parties, damages and general relief. The case was heard by the chancellor, findings were made and filed and decree rendered adjudging the plaintiff to be the sole owner of the disputed parcel, granting the injunction as prayed and awarding nominal damages. The case is here on the defendant's exceptions.

At the close of the hearing before the chancellor the defendant moved to dismiss the complaint on the grounds that the suit being instituted primarily to try title to real estate the chancery court was without jurisdiction, and that the defendant had a constitutional right to a jury trial. To the denial of her motion the defendant has briefed an exception on the jurisdictional ground. Since an objection to jurisdiction of the subject matter is never out of time ( Miner's Ex'x. v. Shanasy, 92 Vt. 110, 112, 102 A. 480; Fillmore's Admr v. Morgan's Estate, 93 Vt. 491, 493, 108 A. 840), this exception is before us for consideration.

The defendant invokes the well recognized rule that 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, and relies heavily upon Aguirre v. Aja, 113 Vt. 123, 30 A.2d 88. It should be noted, however, that the situation here is materially different from that in the Aguirre case. There any jurisdictional facts that may have been alleged in the bill were waived and the plaintiffs sought merely to have the location of a common driveway and the ownership of a parcel of land determined. In neither the cross bill nor the findings was there any reference to a threatened continuance of hostile acts by the plaintiffs or any other jurisdictional facts. In the present case the bill alleges repeated acts of trespass by the defendant and refusal to desist therefrom upon notice from the plaintiff. The commission of such acts by the defendant "on occasions" is found.

If the trespass is continuous in its nature, if repeated acts of wrong are done or threatened, although each of these acts taken by itself may not be destructive, and the legal remedy may therefore be adequate for each single act if it stood alone, then also the entire wrong will be prevented or stopped by injunction on the ground of avoiding a repetition of similar actions. Murphy v. Lincoln, 63 Vt. 278, 280, 22 A. 418, quoting Pomeroy, Eq. Jur. Sec. 1357; Griffith v. Hilliard, 64 Vt. 643, 644, 25 A. 427; Way v. Fellows, 91 Vt. 326, 330, 100 A. 682; Kennedy v. Robinson, 104 Vt. 374, 376, 160 A. 170; Kasuba v. Graves, 109 Vt. 191, 199, 194 A. 455. There was no error in the denial of this motion.

The findings set forth numerous deeds and estate decrees of distribution in support of the title to the lands the parties respectively own. The defendant's record title to the land in dispute goes back to a warranty deed from Samuel A. Gage and wife to Orsemus S. Hix, dated April 11, 1882, which contains the following description:

"Beginning at a point on the highway leading from the old Lyman Toll Bridge so called to the village of Hartford one rod west of the west line of the land formerly deeded to me by Mary T. Williams, thence westerly along said highway four rods and three feet to an elm tree, thence northerly about twenty-two rods to land now occupied by Hazen N. Savage, thence easterly along the line of land so occupied by the said Savage, four rods and three feet, thence southerly in a straight line to the place of beginning. Containing about eight rods more than one half acre of land be the same more or less."

The defendant received a deed of this land from Joseph S. Bean on August 11, 1919. This deed also included a strip one rod wide on the westerly side of the above mentioned lot and extending back from the said highway 13 rods, which was conveyed by Samuel A. Gage to James G. Porter on May 26, 1886.

The plaintiff traces his title back to a warranty deed from Samuel A. Gage to Horace T. Sargent, dated October 11, 1887, in which the land above conveyed to Hix is expressly excepted. The plaintiff received his deed on February 29, 1924, from Hannah and Sumner H. Sargent. This deed contains a lengthy description of the boundaries of the land conveyed. It begins at the southwesterly corner of the defendant's land, and follows and proceeds westerly along Maple Street, which is the highway mentioned in defendant's title, then follows the lines of various land owners, then proceeds southerly "to a corner where said fence meets the line marking the northerly boundary of said Renehan's home lot.. which said northerly boundary was until recently marked by a fence; thence in a westerly direction along the last named boundary line to the corner where said line meets the westerly line of the said Renehan lot and which until recently was marked by a fence; thence southerly along said last named boundary line to the point of beginning. It is estimated that the above described premises contain about ten (10) acres."

The defendant has resided in buildings on the southerly part of the land deeded to her by Joseph Bean since August 11, 1919. For a distance of 218 feet northerly of Maple Street the premises indicate that much care and attention have been given to them. At the rear of her buildings she has maintained a vegetable garden, a lawn and rock garden and an out-door fireplace for many years, but at no point more than 218 feet from Maple Street. Adjacent to and northerly of the rock garden there is a growth of brush and shrubs, including sumac bushes 8 to 10 feet high, which extends in a fairly straight line across the premises and generally parallel to Maple Street. On the land in dispute located more than 218 feet north of Maple Street there is nothing growing but brush, grass and weeds, and there are no structures located thereon. In 1924 there were remnants of an old fence running east and west just north of the rock garden, but no fence has been in existence since prior to 1919. Just prior to or just after the plaintiff delivered his deed to the defendant of March 29, 1924, hereinafter referred to, he exhibited to the defendant a plan of lots or sub-division of the land described in plaintiff's deed from the Sargents. The land in dispute appeared upon this plan as a part of the plaintiff's premises, and at that time the defendant made no claim or statement as to it. During the summer of 1924 the plaintiff drove stakes in the ground in dispute and on his adjacent land for the purpose of staking out a street, part of which would have been on the land in dispute. Shortly thereafter he had ditches made on the land in dispute and his adjacent land with a plow to correspond with the stakes. These ditches are now partially in existence. From 1924 to about 1934 he caused the grass on the land in dispute to be cut. During the summer of 1942 after this controversy arose he caused the grass to be again cut and removed. In 1930 and in 1931 he had plans including the land in dispute recorded in the land records of the town. Since 1919 the defendant has frequently gone upon the land in dispute for the purpose of crossing it to visit neighbors and a near-by cemetery, and has on occasions burned...

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