Fullam v. Foster

Decision Date28 July 1896
Citation68 Vt. 590,35 A. 484
PartiesFULLAM et al. v. FOSTER et al.
CourtVermont Supreme Court

Exceptions from Rutland county court; James M. Tyler, Judge.

Action by Fullam & Adams against Foster & Jaquith. Verdict and judgment for plaintiffs. Defendants except Affirmed.

W. W. Stickney and J. G. Sargent, for plaintiffs.

J. C Baker and C L. Howe, for defendants.

THOMPSON, J. This is an action, founded upon it. L. § 4206, to recover treble damages for cutting wood and timber—trees standing and growing—on land, in the town of Mt. Holly, claimed to be owned by the plaintiffs. The defendants claimed that the land in dispute is a part of the north end of the College lot, so called, owned by them; and the plaintiffs claim that it is a tract of land next north of the College lot, and that the south line of the land in dispute is the north line of the College lot. The defendants claim that the county court erred in not submitting to the jury the question whether they had acquired title to the land in dispute by adverse possession. This contention makes it necessary to determine the construction to be given to the description of the 400-acre lot, so called, in the survey thereof by Joseph Crary, county surveyor, made June 16, 1795, and recorded March 10, 1808. That description is as follows: "Ludlow, 16th June, 1795. Then surveyed for Mr. Josiah Fletcher 400 acres of land in said township, with small allowance on the original right of William Lee, Joel Potter, Jared Lee, David Clark, and David Clark, Jr. Beginning at a spruce tree in Andover north line, and about 30 or 40 rods from the southeast corner of a large tract of land lately surveyed to Doctor Asaph Fletcher; thence easterly, on Andover north line, about 470 rods, to a beach tree at the southwest corner of a tract of land surveyed to Captain Miles Johnson; thence north, 6 degrees east, 160 rods, to a spruce tree; thence north, 56 degrees west, on a parallel line with Andover, 422 rods, to a maple tree in the east line of the large tract aforesaid; thence south, 24 degrees west, 160 rods, to ye begun bound,—and contains as aforesaid. About 158 acres of said tract, in the westerly line part, is included within the bounds of Mount Holly." This description makes the north and south lines of this lot parallel, and the east and west lines of equal length, but not parallel. It is apparent that the east and west lines are not of equal length, and that there must be an error in the statement of some of the distances. There is no dispute as to the location of the south line and the southeast and southwest corners of this lot. In determining what part of this repugnant description shall be rejected, effect should be given to the intention of the surveyor, as shown on the face of the survey bill. Gates v. Lewis, 7 Vt. 511. It is apparent that he intended this tract to contain 400 acres, "with small allowance," about 158 acres of which should be in Mt. Holly, and that the north and south lines should be parallel, and that the south line should coincide with the north line of Andover. If the length of the west line is rejected, and it is taken to have been the intention to run from the maple tree standing at the west end of the north line to the bound begun at, without regard to distance, the lot then contains about 400 acres, 158 45/1000 acres of which are In Mt, Holly, as stated in the survey. Thus the quantity and location of the land is found, without disturbing any of the other courses and distances. This result cannot be obtained by retaining the length of the west line as stated in the survey. Hence the distance named in connection with the west line must be rejected as repugnant, and it must be taken to have been the intention to run that line, without regard to distance, from the maple tree to the bound begun at, being the southwest corner of the 400-acre lot, and a fixed monument. In 1799 a part of Andover was taken to form the town of Weston, so that after that date about 260 rods of the 400acre tract bordered on Weston, instead of Andover. The College lot was conveyed to Middlebury College by Josiah Fletcher, July 12, 1819, and, in his deed, was described as follows: "Beginning at the southwest corner of a four hundred acre tract surveyed to Josiah Fletcher, June 16, 1795, and in Weston north line; thence easterly, on said Weston town line, 100 rods, to a corner; thence north, 6 degrees east, and 160 rods, to the north line of said beforementioned tract of four hundred acres; thence north, 56 degrees west, 100 rods, to the northwest corner of said tract; thence 160 rods to place of beginning,—and contains one hundred acres, by measure." All the deeds in the defendants' alleged chain of title contain this description, and it is the description of the College lot in their deed thereof from Sarah H. Ayers, dated May 31, 1886, and by virtue of which they claim title thereto by deed. If the north line of the College lot coincides with the north line of the 400-acre tract, the land in dispute is not a part of the College lot, as the construction given to the survey of the 400-acre lot locates its north line in accordance with the claim of the plaintiffs.

It is well settled that when, in the description of land in a conveyance, courses and distances, and also known boundaries or monuments, are given to describe the same line, and...

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13 cases
  • J. P. Neill v. Burton S. Ward
    • United States
    • Vermont Supreme Court
    • November 5, 1930
    ... ... often as they think proper, and it is the final result only ... which is to be regarded as the thing done. State v ... Foster , 7 N.J.L. 101; People v ... Davis , 284 Ill. 439, 120 N.E. 326, 2 A.L.R. 1650, ... 1655. And this Court has held that a town, like an ... misunderstanding about the course or distance than about the ... boundary or monument. Keenan v. Cavanaugh , ... 44 Vt. 268; Fullam v. Foster , 68 Vt. 590, ... 594, 35 A. 484, and cases cited; Sowles v ... Butler , 71 Vt. 271, 276, 44 A. 355; Vermont ... Marble Co. v ... ...
  • Neill v. Ward
    • United States
    • Vermont Supreme Court
    • November 5, 1930
    ...or misunderstanding about the course or distance than about the boundary or monument. Keenan v. Cavanaugh, 44 Vt. 268; Fullam v. Foster, 68 Vt. 590, 594, 35 A. 484, and cases cited; Sowles v. Butler, 71 Vt. 271, 276, 44 A. 355; Vermont Marble Co. v. Eastman, 91 Vt. 425, 448, 101 A. 151. All......
  • Vermont Marble Co. v. Eastman
    • United States
    • Vermont Supreme Court
    • May 1, 1917
    ... ... 74. And the call requires the line to be 10 rods long from ... the point of commencement named in the deed. Owen v ... Foster , 13 Vt. 263; Day v. Wilder , ... 47 Vt. 583 ...          The ... importance of right conclusions regarding the first and ... second ... clearly designated and accurately described. Bundy ... v. Morgan , 45 Vt. 46; Fullam v ... Foster , 68 Vt. 590, 35 A. 484; Sowles v ... Butler , 71 Vt. 271, 44 A. 355. Moreover, it is ... erroneously said that the second ... ...
  • Vt. Marble Co. v. Eastman
    • United States
    • Vermont Supreme Court
    • May 1, 1917
    ...than in abuttals and monuments capable of being clearly designated and accurately described. Bundy v. Morgan, 45 Vt. 46; Fullam v. Foster, 68 Vt. 590, 35 Atl. 484; Sowles v. Butler, 71 Vt. 271, 44 Atl. 355. Moreover, it is erroneously said that the second call in the deed in terms places th......
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