E.H. & W.B. Aldrich v. Silas L. Griffith
| Decision Date | 01 January 1893 |
| Citation | 29 A. 376,66 Vt. 390 |
| Parties | E.H. & W.B. ALDRICH v. SILAS L. GRIFFITH |
| Court | Vermont Supreme Court |
GENERAL TERM, 1893
Action on R. L., s. 4206, to recover damages for the cutting of trees upon the lands of the plaintiffs. Plea, the general issue. Trial by jury at the September term, 1892, Rutland county, TAFT, J., presiding. Verdict and judgment for the plaintiffs. The defendant excepts.
Judgment reversed and cause remanded for a new trial.
J.C Baker and J.K. Batchelder for the defendant.
The defendant claims title to the locus in quo by adverse possession for fifteen years, by himself and his grantors, under color of title. He contends that the warranty deed from Arnold to the Winchesters and Horton, executed and delivered in A. D. 1864, and the conveyances to him in A. D 1873 by Arnold's grantees, gave color of title. In these conveyances the land conveyed is specifically described by courses and distances. One course runs "to the north line" of Mt. Tabor, "thence east on the north line of Mt. Tabor," etc. The division line between the towns of Wallingford and Mt. Tabor is the north line of Mt. Tabor. It was conceded that the true northwest corner of Mt. Tabor was a marble post in the railroad embankment. The plaintiffs claimed the division line between the towns was a line running from this corner easterly to a spruce stub or tree, while the defendant claimed it was a line running from this northwest corner easterly to a stone monument something over a hundred rods north of the spruce tree. Evidence was introduced tending to prove the claims of each party in this behalf. If the division line is located as claimed by the defendant, the courses and distances called for by his deeds, and the deed from Arnold, are satisfied by running to this line and on it, and the locus in quo is included in the land described in these deeds. If the line is located as claimed by the plaintiffs, and the distances called for by these deeds must yield to this location of the line as the true north line of Mt. Tabor, then the locus in quo is not included in the land described.
The plaintiffs now insist that the jury have found the true division line between the towns, to be as claimed by them, and that the distances called for by these deeds must yield to the actual location of the line established by the verdict, and hence the defendant and his grantors never had color of title to the locus in quo.
The words "north line of Mt. Tabor" would be equally satisfied by a line which was in law the legal boundary, or by a line which was considered and reputed to be such boundary, at the time of the execution and delivery of the deed from Arnold. The evidence tended to show that prior to A. D. 1858, a controversy had existed between these towns, in respect to the location of the boundary between them. About A. D. 1858 a petition was pending in court to have it established, and at that time each line, as claimed by the plaintiffs and by the defendant, was surveyed and marked more or less, but the committee appointed by the court were unable to agree in respect to which was the true line. After a time the proceeding in court was discontinued. Ever since to the present time, Mt. Tabor, its officers and inhabitants, have claimed and insisted that the true boundary was the line claimed by the defendant. Thus a latent ambiguity was disclosed which could only be cleared up by oral evidence. The case comes exactly within the familiar maxim as expounded by Lord Bacon. " Ambiguitas verborum latens verificatione suppletur; nam quod ex facto oritur ambiguam verificatione facti tollitur."
" Ambiguitas latens is that which seemeth certain and without ambiguity for anything that appeareth upon the deed or instrument, but there is some collateral matter out of the deed, that breedeth the ambiguity." Bac. Max. reg. 25.
Although the presumption upon the face of the deed would be that the "north line of Mt. Tabor" therein mentioned, was the true line, yet if the line claimed by the defendant was shown to exist, and was adopted by Mt. Tabor, its inhabitants, and the parties to the deeds, then that would be the boundary referred to in the deeds, and would prevail. This view is in accord with Putnam v. Bond, 100 Mass. 58, and Hall v. Davis, 36 N.H. 569. The deeds would thus give color of title. Putnam v. Bond, supra. This phase of the case should have been submitted to the jury with proper instructions, as the defendant's evidence tended to show that the parties to the deeds at the time they were executed and delivered, understood the north line of Mt. Tabor to be the line now claimed by the defendant to be the boundary between the towns.
The plaintiffs further contend that as the jury have found the true line to be the line running from the marble post to the spruce tree, and as the locus in quo is between this line and the line for which the defendant contends, it is therefore in Wallingford, even though the latter line be taken as the boundary intended in the deeds, and that inasmuch as these deeds were not recorded in Wallingford, they gave no color of title to the locus.
If by this, the court intended to limit color of title to an occupancy under a deed executed as required by the statute, or a survey, duly recorded, it is sufficient to say that the question as to what kind of an instrument would give color of title, was not raised in that case, and the remarks of the court upon that subject were wholly obiter dictum.
The evidence tended to show that prior to and at the time of the execution of the deed from Arnold, the land described in it was clearly indicated by visible monuments entirely around it, consisting of old lines of spotted trees, unmistakable and easily followed; and that in A. D. 1864, immediately after taking the deed, Horton for himself and his co-owners took possession of the premises within these lines, and occupied parts thereof, claiming title under his deed, to the whole, until the conveyance to the defendant in 1873, when the latter went into the possession of the premises under his deeds, and has continued in possession thereof to the present time, to the marked lines, claiming title to the whole continuously. The evidence also tended to show that from a time considerably before March 31, 1864, the date of the deed from Arnold, to the time of the alleged trespasses, the defendant and his grantors had been in the open, hostile, continuous and uninterrupted possession of the land described in the deed from Arnold, and to the marked lines, claiming title thereto, and that these lines included the locus of the alleged trespasses. The evidence clearly tended to show color of title both in Horton and the Winchester, and in the defendant. If the land was not in the actual possession of the true owner, when they took possession, their occupation and use of a part thereof, claiming the whole under color of title, would give them constructive possession of the whole, and such possession, if open, notorious, continuous, uninterrupted and hostile, for fifteen years, would give good title, even against the true owner. Pearsal v. Thorp, 1 D. Chip. 92: Beach v. Sutton, 5 Vt. 209: Crowell v. Bebee, 10 Vt. 33; ...
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