Graham v. Slayton

• Decision Date: 07 November 1961
• Docket Number: No. 856,856
• Citation: 175 A.2d 809,122 Vt. 425
• Parties: Mary GRAHAM v. Elgin J. SLAYTON.
• Court: Vermont Supreme Court

Page 809

175 A.2d 809

122 Vt. 425

Mary GRAHAM v. Elgin J. SLAYTON.

No. 856.

Supreme Court of Vermont.

Nov. 7, 1961.

Wilson, Keyser & Otterman, Chelsea, for plaintiff.

Finn & Davis, Barre, for defendant.

Before HULBURD, C. J., and HOLDEN, SHANGRAW, BARNEY and SMITH, JJ.

SHANGRAW, Justice.

This litigation results from a dispute as to the location of the dividing line between property owned by the plaintiff, and that owned by the defendant and Erwin Hoyt as co-owners. The plaintiff brought a bill in chancery seeking an injunction to restrain the defendant from cutting and removing trees off and from land alleged to be owned by her. The plaintiff also sought to recover treble damages under the provisions of 13 V.S.A. § 3606.

A hearing was had below and findings of fact were made by the Chancellor. A decree was entered granting a permanent injunction against the defendant and awarding the plaintiff actual damages of $568 plus costs, for the unlawful cutting by the defendant of certain timber growing upon lands of the plaintiff. The case is here on the defendant's exceptions to certain findings, and to the decree.

According to the defendant's claim his tract of land would contain from 60 to 65 acres. Placing the disputed line in accordance with the location urged by the plaintiff the defendant's lot would contain only 30 acres.

The properties in question are situate in Williamstown, Vermont, and located on the easterly side of the road leading to the plaintiff's farm from the Williamstown to Chelsea highway. Both parcels adjoin each other and have their origin in the real estate owned at one time, as one unit, by Irving C. Robinson. The chain of title by which the property, herein referred to as the Graham farm, came into the possession of the plaintiff is shown by plaintiff's exhibits 1 to 7 inclusive, and that of the defendant, known as the Slayton lot, by plaintiff's exhibits 8 to 14 inclusive. No issue is raised by either party concerning the chain of title to either parcel involved here.

On December 26, 1907 the administratrix of the Irving C. Robinson estate conveyed a portion of the Robinson premises to Isabel M. Putnam Phelps, a predecessor in title of the defendant, which parcel so conveyed is referred to in this opinion as the Slayton lot. The acreage of the lot so conveyed was not mentioned in this deed, nor in subsequent deeds of the defendant's chain of title, excepting the deed of warranty from Winston Churchill to Erwin Hoyt and Elgin Slayton dated September 15, 1953, in which the land conveyed is described as containing 30 acres, more or less.

On December 26, 1907 the administratrix of the Irving C. Robinson estate also conveyed the remainder of the Robinson farm to Henry A. Phelps, a predecessor in title of the plaintiff, excepting therefrom that part of the farm which on the same date was conveyed to Isabel M. Putnam Phelps. All subsequent deeds in the plaintiff's chain of title describe the remainder of the Robinson farm so conveyed as containing 200 acres, more or less, including the deed from Norman Graham and Maggie Graham to Rodney Graham, now deceased, and Mary Graham the plaintiff, dated December 7, 1938.

The 1906 quadrennial appraisal book of the Town of Williamstown and the grand list book for the year 1907 shows the Robinson estate as possessed of 220 acres of land. The grand list book for the year 1908 lists the Graham property as containing 190 acres and the Slayton property as 30 acres of land. The 1910 quadrennial appraisal book also shows the Slayton property as containing 30 acres. The 1960 grand list shows the Slayton property as containing 30 acres, and Mary Graham as the owner of a 200-acre farm and buildings. Thus the acreage as indicated by the grand list and quadrennial appraisal books tends to correspond with and conform to the plaintiff's claim as to the acreage conveyed.

The plaintiff's property is located southerly and southwesterly of the Slayton lot. Plaintiff claims that the southeasterly boundary of the Slayton lot begins at a beech tree on a fence generally running north and south representing the easterly boundary of this lot; thence turning in a westerly direction 200 feet, more or less, to a stone pile; thence turning in a northwesterly direction and continuing to a point in the Williamstown-Chelsea highway five rods southerly of the north west corner of this lot. This marked by the plaintiff by swatches of red paint placed on trees in 1960.

The defendant urges that the division line extends southerly and southwesterly of that claimed by the plaintiff encompassing a somewhat triangular piece of land. He claims the following to be the correct line: That the southeasterly corner of his lot is defined by a maple tree and barbwire fence located a distance of 1000 to 1500 feet southerly of the above mentioned beech tree; thence westerly on this fence a distance of five rods westerly of the standing trees or timber; thence in a northwesterly direction to the Williamstown-Chelsea highway at a point five rods southerly of the northwest corner of this lot. The acceptance of the defendant's view would place the acreage of the Slayton lot at 70 to 73 acres, rather than 30 acres, more or less.

The controlling factual question is whether the south east corner of the Slayton lot is represented by the beech tree, as claimed by the plaintiff, of the maple tree and barbwire fence which runs easterly and westerly, as claimed by the defendant.

In our disposition of exceptions to findings we have in mind that a finding must stand if supported by any substantial evidence, although there may be inconsistencies, or even substantial evidence to the contrary. Metcalf Co. v. Crossroads, Inc., 121 Vt. 147, 150, 151 A.2d 307; Gramatan National Bank v. Pierce, 121 Vt. 406, 410, 159 A.2d 781. We must read the evidence in support of the findings, if reasonably possible. New England Road Machinery Co. v. Calkins, 121 Vt. 118, 120, 149 A.2d 734.

Findings Nos. 11, 18, 21 and 22 excepted to by the defendant read:

'(11) Donald Graham, brother of Rodney Graham, testified that he lived on the Graham farm from 1916 until 1938. He testified that there was never a fence between the two properties although a fence was maintained by the Grahams around what is now the Slayton lot. He described a pile of stones within an angle of two ledges as being the south boundary of the Slayton line and testified that trees were cut below that line by his father and above the line by M. W. Churchill, antecedent in title to Slayton. In 1951, he walked the line with Bill Graham and he testified that the south line of the Slayton property was as William Graham testified.

'(18) The Chancellor finds that at all times since 1938 the plaintiff and/or her deceased husband have claimed the Slayton south line to be substantially the same as the painted line set out by William Graham in the summer of 1960.

'(21) The chancellor finds that the south line of the Slayton...