George W. Randall v. G. E. Moody
| Decision Date | 22 August 1913 |
| Parties | GEORGE W. RANDALL v. G. E. MOODY ET AL |
| Court | Vermont Supreme Court |
May Term, 1913.
APPEAL IN CHANCERY, Washington County. Heard at Chambers, December 26, 1912, Miles, Chancellor, on the pleadings, master's report and orator's exceptions thereto. Exceptions overruled and bill dismissed with costs to defendants. The orator appealed. The opinion states the case.
Affirmed and remanded.
R M. Harvey for the orator.
T W. Moloney and L. C. Moody for the defendants.
Present ROWELL, C. J., MUNSON, WATSON, HASELTON, and POWERS, JJ.
This is a bill in chancery to enjoin the defendants from further cutting wood and timber on the orator's land in Waterbury, and to recover compensation for what they have cut.
The bill was answered and the case went to a master, who returned a report, the substance of which is this. The north-west portion of Waterbury is composed of 44 lots and a gore, which formed a part of Bolton till 1851, when they were set to Waterbury. Said lots were laid out in four tiers of eleven lots each, or eleven ranges of four lots each, the ranges extending easterly and westerly the length of four lots, and the tiers extending northerly and southerly the width of eleven lots. The gore occupied territory northerly of said lots, and between them and the town line of old Mansfield now Stowe, and was wider at its easterly end than at its westerly end.
The orator owns many of said 44 lots, and among them, the four comprising the most northerly range, being lots 179, 180, 181, and 182, going from west to east. The defendants Moody and the two O'Neills own a large part of the gore, and, as far as the report is concerned, the master says, may be treated as owning the whole of it. Said four lots were laid out and surveyed with the rest of the 44 lots, under the authority of the proprietors of Bolton, by John Johnson and Henry Teachout, surveyors, the work of the survey commencing in October, 1800, and ending in May, 1801. Said four lots were laid out to contain a hundred acres each, exclusive of an allowance for public roads; were 165 rods and 8 links long from east to west, and 100 rods wide from north to south; the range lines running S. 55/d E., and the end lines N. 35/d E., making them rectangular in shape.
Said gore was not surveyed at the time the lots were laid out, but remained undivided till 1836 and 1837, when a large part of it was laid out into pitches, which were not uniform in size nor shape.
The parties agreed before the master that the only question to be then considered was, the location of the true line between said four lots and the gore, and the facts reported, the master says, relate to that question.
The line claimed by the orator was marked at its easterly end, or what would be, according to his theory, the northeasterly corner of lot 182, by the decayed remains of a stake found in the ground in a pile of stones at a point in the line between the old town of Bolton and Waterbury. 161 1/2 rods southerly of the northeasterly corner of the former town, and extended from that decayed stake corner. N/d W. to a stake and stones at the northwest corner of lot 179, as claimed by the orator, forming the northerly line of said four lots.
The line claimed by the defendants as the line between said four lots and the gore was marked at its easterly end by a "big maple, down," as indicated on the plan, which we will call, as the master does, "an old maple stump," on the line between old Bolton and Waterbury, 29 rods and 15 links southerly of the northeasterly corner of lot 182 as claimed by the orator, and ran from that stump on a compass line, N. 49/d W., as of the year 1907, to a stone set in the ground and forming, as claimed by the defendants, the northwest corner of lot 179.
The orator relied for the location of the line as he claimed it, on the survey bills of five of the pitches into which the gore was divided, and introduced copies of said survey bills, and the testimony of witnesses to support his claim.
Said survey bills, except that of the Dan Carpenter pitch, which is the most easterly pitch, purport to have been made with reference to the northerly line of said four lots; and the theory of the orator is that the southerly line of said pitches and the northerly line of his land are determined by the courses and distances set down in said bills. But the master finds that said bills are very inaccurate; that in order to lay out upon the ground the surveys as they appear on the records, it would be necessary to vary materially both the courses and the distances; that in the line so formed and claimed by the orator there is not, and never has been, so far as the testimony shows, a single tree bearing a mark of the age of the original Johnson and Teachout survey; that the southeasterly corner of the pitch surveys, which the orator claims to be the northeast corner of lot 182, is described in said surveys, made in 1837, as a stake and stones, while in said original survey of said lot it is described as a maple tree; and that if the line is located as claimed by the orator, his said four lots, instead of being 100 rods wide, as appears by said original survey, would be 131 or 132 rods wide.
The line claimed by the defendants is marked in the first 234 rods of its course, beginning at the maple stump and running N. 49/d W., by no less than sixteen trees having upon them surveyor's marks as for an east and west line. These trees were blocked and counted in the fall of 1907 and the early spring of 1908, and the rings of growth in many of them were 106 or 107. Some of said trees showed two sets of marks, one set counting as above stated, and the other set, about 75 years. Over the rest of the course of the line claimed by the defendants, going westerly from the 234-rod point, there are no marked trees of an age to correspond with the age of the original survey; but it appeared in evidence and by observation on the ground that the spruce timber had been removed from the whole of the territory traversed from said point, and that over the greater portion of that distance all old growth stuff had been cut off.
The line claimed by the defendants is marked at its easterly end, which would be the northeasterly corner of lot 182, by a decayed maple stump with the rotten remains of a large maple tree on the ground beside it. This corresponds with the description of the original survey, and a boundary made by this line gives the orator full measure in the width of his lots.
From a consideration of all the evidence and from observation made upon the ground, the master finds that the line claimed by the defendants as above described is the true line between the orator's lots and the gore.
The orator filed divers exceptions to the report for error in the admission and rejection of evidence. But these exceptions cannot be considered here, for the master has not reported his decisions as to them, and was not requested to, as far as appears, without which he was not obliged to. P. S. 1265. This being so, sec. 1268 of the statute precludes us from hearing those questions, for it has been held that said sections mean that such questions shall be treated in this Court as waived unless saved in the report though insisted upon in the exceptions. Winship v. Waterman, 56 Vt. 181. In Fife v. Cate, 85 Vt. 418, it is held that correct practice forbids exceptions to a master's report for error in the admission of evidence not based on objections...
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