Goloskie v. La Lancette

• Decision Date: 19 July 1960
• Docket Number: No. 2760,2760
• Citation: 91 R.I. 317,163 A.2d 325
• Parties: Theodore F. GOLOSKIE et ux. v. Edgar LA LANCETTE. Eq.
• Court: Rhode Island Supreme Court

Page 325

163 A.2d 325

91 R.I. 317

Theodore F. GOLOSKIE et ux. v. Edgar LA LANCETTE.

Eq. No. 2760.

Supreme Court of Rhode Island.

July 19, 1960.

On Motion to Reargue July 29, 1960.

Edward F. McElroy, Providence, for complainants.

Francis D. Fox, Providence, for respondent.

CONDON, Chief Justice.

This is a bill in equity to enjoin the respondent from continued trespassing on the complainants' land located in the town of Glocester and on a body of water covering a certain portion of such land. The respondent filed an answer in the nature of a cross bill by which he sought to enjoin the complainants from interfering with his right to fish, boat and swim in said body of water. The cause was heard in the superior court on bill, answers, replications and proof and resulted in the entry of a decree granting the relief prayed for by the complainants and denying the relief sought by the respondent. The cause is here on the respondent's appeal from such decree.

The respondent's reasons of appeal are nineteen in number but only those numbered 1 to 6 and 8 to 12 inclusive have been briefed and argued. In accordance with our long-established rule the reasons not briefed are deemed to be waived. For purposes of argument respondent has grouped his reasons of appeal under four separate points in his brief. Reasons 8 to 12 are argued under point I and designated, A, B, C, D and E; reasons 1 and 4 under point II; and reasons 2, 3, 5 and 6 under points III and IV. In our discussion we shall follow that order.

Under point I-A the contention is made that the trial justice erred in admitting into evidence complainants' exhibits A to K. These exhibits consisted of complainants' deed to the locus in quo and certified copies of prior deeds and wills purporting to be in their chain of title back to the year 1844. The respondent contends that the purported chain of title is not complete so that it was impossible for the trial justice to know with certainty what land the complainants own, particularly with reference to the body of water on which the alleged trespasses have occurred and are threatened in the future. We have examined such exhibits and are of the opinion that there is no merit in the contention. Except for a minor, inconsequential variance in the description in complainants' deed all prior deeds purport to convey the same tract of land.

Under point I-B it is contended that complainants' exhibit N was erroneously admitted. This exhibit is a map of the Ponagansett Reservoir made and prepared for the Ponagansett Reservoir Company by J. A. Latham & Son. Stanton M. Latham testified that his father, now deceased, made the map in the regular course of business and that it was among the records of their office. The respondent argued that since the witness had not himself prepared the map it was not admissible. The complainants contended that it was admissible under General Laws 1956, § 9-19-13. This statute has been customarily given a liberal construction. In the circumstances here the trial justice did not err in admitting the map as a record made in the usual course of business. Albert S. Eastwood Lumber Co. v. Britto, 51 R.I. 406, 155 A. 354. The respondent advanced other grounds in support of his contention, but we see no need to discuss them since they are clearly lacking in merit.

Under point I-B he contends that the trial justice erred in admitting complainants' exhibit L which is a plan of their land made by Frank M. Waterman, a licensed surveyor and engineer. The respondent contends that the surveyor did not properly perform his duty in establishing the boundaries of complainants' land and that therefore the map was not properly admitted. We have carefully examined the surveyor's testimony concerning the manner in which he identified the boundaries of complainants' land and we are unable to see any reasonable basis for the respondent's contention on this score. He also argues in support of the inadmissibility of the exhibit that it violates the parole evidence rule. There is no basis for any such argument. It appears to us that respondent misconceives the scope of the application of that rule.

Under point I-D he contends that the trial justice erred in not permitting him to have Mr. Waterman mark in red pencil on complainants' exhibit L the location of a certain area of land described in a deed which respondent had introduced in evidence and which the witness testified he had surveyed. In support of his contention he refers us to Round v. Burns, 77 R.I. 135, 74 A.2d 861, 20 A.L.R.2d 1048 and Albro v. Matteson, 64 R.I. 494, 13 A.2d 391. Neither of those cases has any application to the matter in controversy. Here the respondent was seeking to have the witness mark the complainants' exhibit to show a fact in proof of which the exhibit was not introduced. In our opinion the trial justice quite properly sustained complainants' objection.

Under point I-E respondent contends that complainants' exhibit O was erroneously admitted. This exhibit is a copy of a plat of lots on file in the town clerk's office. This copy was made by Mr. Waterman at the request of complainants after respondent had introduced into evidence a plan of these lots and a deed to him of lots 1 to 5 thereon. Exhibit O corresponded precisely with such plan except that it bore a red line which the surveyor made thereon to show the easterly boundary line of the property which was sold outright to the trustees of the Ponagansett Reservoir Company. He also testified that this plat had no reference to complainants' land.

The respondent further contends that the introduction of this exhibit violates the parole evidence rule in that the markings thereon made by the witness vary, modify or detract from the recorded plan of lots shown by his exhibit 2 and also from his exhibit 1, the deed to him of lots 1 to 5. This contention is without merit. The complainants' exhibit and the testimony given by Mr. Waterman in connection therewith do not vary the respondent's deed, but simply indicate the easterly line of his lots with relation to the shore of the reservoir. Hence the situation here is not at all like that presented in Gaddes v. Pawtucket Institution for Savings, 33 R.I. 177, 80 A. 415, Kuzoian v. Jaffa, 52 R.I. 367, 161 A. 130, or Allen v. Marciano, 79 R.I. 98, 84 A.2d 425, upon which respondent relies. The respondent's reasons of appeal 8, 9, 10, 11 and 12 under which the above contentions were made are therefore overruled.

This leaves his other points for consideration in the light of all the evidence which the trial justice had before him. It is advisable to make this statement because respondent's contentions in support of some of those points are predicated at least in part upon the validity of his objections to the trial justice's rulings on the evidence.

The following facts are established by all the evidence. On December 6, 1943 Mabel F. Place conveyed by warranty deed to complainants certain real estate described therein as follows:

'A certain farm or tract of land, situate in said Glocester, with all buildings and other improvements thereon, containing 225 (two hundred twenty-five) acres, be the same more or less, and bounded and described as follows, to wit: Northerly on land now or formerly of David Page, Easterly on the highway and land now or formerly of Joseph Davis' heirs, Southerly on land now or formerly of Smith Peckham and the South Killingly Road, and Westerly on land now or formerly of Theodore D. F. Hammond and Amasa Tucker. Meaning and intending to convey hereby, whether the above description be sufficiently broad or not, all real estate formerly owned by the late Othniel Saunders and/or his late wife or widow, Mercy Saunders, and including the property conveyed to the said late Mercy Saunders by Alvin H. Shippee, administrator of the estate of Othniel Saunders, by deed dated July 22, 1871, and recorded in Glocester Land Records in Book No. 27 at page 628, the latter parcel being subsequently conveyed to this grantor by Executrix's Deed of Amey J. Saunders, through her duly qualified executrix, Hannah S. (or M.) Mann, and recorded in said Glocester Land Records in Book No. 45 at page 475, the intent of which said last-mentioned deed having been to convey to this grantor, whether the description therein was sufficiently broad or not, all the real estate owned by the said late Othniel Saunders and/or his late wife or widow, Mercy Saunders. Subject to encumbrances of record.'

Thereafter complainants took actual possession and made valuable improvements thereon and have continued in occupation ever since. At the time they took possession, a substantial portion of the farm was covered by water forming a part of Ponagansett Reservoir north of the South Killingly Road now called Snake Hill Road. Prior to 1941 this part of the reservoir was dry except for a natural pond with a small brook flowing southerly from it. It was in that condition when complainant Theodore F. Goloskie first saw it in 1927, and also in 1939. Mabel F. Place testified that when she owned the farm she pastured cattle and picked blueberries on the part now covered by water. There was also testimony that it remained dry...