Harold O. Taylor v. Richard E. Henderson And Ray Smith
| Decision Date | 07 October 1941 |
| Citation | 22 A.2d 318,112 Vt. 107 |
| Parties | HAROLD O. TAYLOR v. RICHARD E. HENDERSON AND RAY SMITH |
| Court | Vermont Supreme Court |
May Term, 1941
Boundaries.---1. Findings Stand if Substantiated.---2. Weight and Credibility for Trier.---3. Refusal to Find not Sustained if Evidence Tends to Contrary.---4. Corner Monument.---5. Edge of Highway Presumed to be of Part Used.---6. Finding Not Disturbed if Supported.---7. Bill of Exceptions Construed Strictly.---8. Finding Sustained if Supported.---9. Assumption Trier Considered All Evidence.---10. Findings Read to Support Decree.---11. Trier Viewing Premises.---12. Land Owner's Admission Against Interest.---13. Undenied Evidence Not Conclusive.---14. Evidence Need Not Be Reported in Findings.---15. Request for Finding on Immaterial Matter.---16. Connecting Offer of Evidence to Issues.---17. Record Construed Against Excepting Party.---18. Excluded Testimony Otherwise Appearing.---19. Admission of Exhibit.---20. Burden of Showing Prejudice.---21. Disinterested Party's Statements Regarding Boundaries.---22. Admissibility of Maps and Plans.---23. Verification of Map Discretionary.---24. Offer of Testimony Must Indicate Expected Answer.
1. Findings of fact challenged on the ground that they are without evidentiary support must stand if there is any legitimate evidence fairly and reasonably tending to support them.
2. The weight of evidence and the credibility of witnesses are for the trier of facts to determine and all conflicts must be resolved against the excepting party.
3. An exception to the refusal to find a fact as requested can not be sustained where there is evidence fairly and reasonably tending to show the contrary.
4. A corner described as "an iron pin driven in the ground on the easterly side of the highway" is determined by the location of the pin rather than the edge of the legally constituted highway.
5. In the absence of knowledge as to the actual boundary of a highway, a reference to the side thereof will be presumed to mean the edge of the road as actually used.
6. A finding supported by testimony will not be upset even though there is other evidence in conflict.
7. A bill of exceptions is to be construed strictly although reasonably against the excepting party.
8. A finding will stand if it can be supported by any rational view of the evidence as the weight is for the trier.
9. It will be assumed, the contrary not appearing, that a trier considered all the evidence bearing on the issue with impartial patience and adequate reflection.
10. Findings, although doubtful, must be read so as to support the decree if this can be done reasonably.
11. When a trier views premises, it will be assumed that there were pointed out to him all the material features thereof.
12. Evidence tending to show an admission by a party's predecessor in title made during the time of his ownership is receivable against the party.
13. A trier is not obliged to accept as conclusive or in all circumstances to believe evidence although it is not directly denied.
14. Error does not appear in the failure to state the effect given to subordinate facts or to report the evidence used in finding material facts.
15. A request to make a finding on a matter immaterial to the issues is unavailing.
16. The evidentiary relation between a fact covered by an offer of evidence and the issue being tried must be pointed out if not apparent.
17. The construction of the record on review is always against the excepting party.
18. When a party through other means has the substantial benefit of excluded testimony, there is no prejudicial error.
19. No harm appears in the admission of an exhibit which the trier of fact finds not to be that which it is claimed to be.
20. The burden of showing prejudice is upon the excepting party.
21. Declarations as to boundaries by persons deceased who happened to have had means of knowledge of and no interest in making the declarations are not admissible when they are not sufficiently explicit to indicate that they relate to any time material to the issues.
22. Maps and plans are admissible as independent evidence only when properly verified.
23. The sufficiency of the verification of a map or plan is a preliminary question of fact to be determined by the trier and being largely discretionary is not ordinarily reviewable.
24. There is no error in excluding testimony when the offer does not indicate the expected answer so that its relevancy may be determined.
BILL IN CHANCERY seeking to enjoin defendants from erecting building on property plaintiff claimed was a right of way. Defendant Henderson filed cross bill to compel plaintiff to remove buildings from his land and to determine division line. Heard by Orange County Court of Chancery, June Term 1940, Cleary, Chancellor. The opinion states the case. Decree for plaintiff.
Decree affirmed.
Arthur N. McCloud and Finn and Monti for defendant.
Arthur L. Graves and Harold K. Davison for plaintiff.
Present MOULTON, C. J., SHERBURNE, BUTTLES, STURTEVANT and JEFFORDS, JJ.
The plaintiff and defendant Henderson are adjoining land owners in the village of Wells River, and there is a driveway used in common between their respective properties. Defendant Smith is Henderson's tenant. The plaintiff brought a bill in equity alleging that the defendants were building upon and obstructing the driveway, and, upon a preliminary hearing, obtained a temporary injunction. The defendants then filed a cross bill in which they claimed that one of the plaintiff's buildings was partly upon the driveway and prayed for a mandatory order for its removal and for damages. Issue was joined in both proceedings, and after hearing, the Chancellor found the division line to be as claimed by the plaintiff. The temporary injunction was made permanent and the cross bill was dismissed. The defendants have appealed.
The facts found by the Chancellor are these: Defendant Henderson who was the owner of all the land and premises here in question, deeded to Medie J. Pudvah on September 22, 1914, a tract described as "Beginning at an iron pin driven in the ground on the easterly side of the highway leading from Wells River Village to Woodsville, N.H. at a point about sixteen (16) feet southerly from the Automobile Garage of said R. E. Henderson; thence southerly along the easterly side of said highway to the Wells River; thence down said River as it winds and turns to an iron pin driven into the ground near a small willow tree standing on the bank of said river; thence northerly about fifty-eight (58) feet to an iron pin driven into the ground near the corner of where the hen yard fence now stands; thence westerly to the place begun at * * *, excepting and reserving at all times four feet off the northerly end of the above described premises to be used in common as a driveway, by both of the parties hereto, and for no other purpose whatever." Through a series of mesne conveyances the title to this property vested in the plaintiff on February 24, 1938.
At the time of the deed to Pudvah the travelled highway, referred to therein, was in approximately the same position as at the time of the trial. In locating the corners of the land to be conveyed Henderson and Pudvah did not use compass directions and did not know where the actual edge of the highway was. They measured from the northwesterly corner of Henderson's garage, as it then stood, 16 feet to the southerly travelled edge of the highway to a point marked B on a map introduced in evidence as plaintiffs' Exhibit 7-A, which point was on the line of a cement sidewalk, which ended beyond the premises, as it would be if extended; they then walked toward the Connecticut River (a direction shown by the map to be southeasterly) a distance of 107 feet, and drove an iron pipe or pin at or very near this point; marked A on the map; after which they turned and proceeded in a southwesterly direction (again, as shown by the map) 58 feet to a small willow tree standing on the bank of the Wells River, near which they drove another iron pipe or pin. The flood of 1927 covered the entire tract and washed away the willow tree and ten to twelve feet of the bank where it stood. Not one of the corner pipes or pins can now be found. An iron pipe was found at point A, but the Chancellor says that he is unable to find that this pipe (produced at the trial as plaintiffs' Exhibit 11) is the one driven by Henderson and Pudvah, although he does find that the original pipe or pin was driven by them at or very near the point at which this pipe was found. The boundary between the respective premises of the parties is found to be the line commencing at point B in the travelled edge of the highway and extending 107 feet to point A. The construction started by the defendants extends over this line and encroaches upon the driveway. A small portion of the roof and caves of one of the plaintiff's buildings projects over the driveway, but does not interfere with its use.
It is to be noted that in speaking of the edge of the highway the terms "easterly" and "southerly" appear to have been used indiscriminately by the parties and the Chancellor to designate the same thing. The highway, as it passes the premises in dispute, follows a general northeasterly direction from Wells River Village toward Woodsville, and so probably it would be more accurate to refer to the southeasterly, rather than the easterly or southerly, edge. But the meaning is plain enough and no confusion need result.
The defendants have briefed twenty-five exceptions. The first eight are to the rulings upon questions of evidence, the next twelve are to the findings as made, and the last five are to the refusal to find as requested. It...
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