Henry J. Stevens v. Royal R. Macrae

• Decision Date: 03 October 1923
• Citation: 122 A. 892,97 Vt. 76
• Parties: HENRY J. STEVENS v. ROYAL R. MACRAE
• Court: Vermont Supreme Court

122 A. 892

97 Vt. 76

HENRY J. STEVENS v. ROYAL R. MACRAE

Supreme Court of Vermont

October 3, 1923

February Term, 1923.

APPEAL IN CHANCERY. Bill to restrain defendant from obstructing plaintiff in his use of a spring and a certain way. Heard on the pleadings and the report of a special master, at the September Term, 1921, Windham County, Chase, Chancellor. Decree for the plaintiff according to prayer of bill as to spring, and denial of relief sought by plaintiff as to the right of way. The plaintiff appealed. The opinion states the case.

Decree affirmed and cause remanded to be further proceeded with in accordance with the views expressed in the foregoing opinion. Let the future costs in the court of chancery be there determined.

NOTE:--When this case was originally argued it was assigned to Mr JUSTICE MILES. On his retirement from the Bench, the case being ordered for reargument, was assigned to CHIEF JUSTICE WATSON.

Wade Keyes and L. F. Edgerton for appellant.

Webber & Leamy for the appellee.

Present WATSON, C. J., POWERS, TAYLOR, SLACK, and BUTLER, JJ.

OPINION

WATSON

On September 24, 1909, Warren H. Bartholomew and wife, by their deed of that date, in due form and recorded conveyed to the plaintiff the "Camp," situated in Castleton, this State, a short distance easterly from Lake Bomoseen, and containing approximately one-half acre of land, (part of grantors' farm). Therewith and by the same deed, the grantors conveyed certain rights to the plaintiff, described as follows:

"Also the right to pass and repass across the lands of the grantors lying westerly of the above and northwesterly of the same to low water mark upon the shore of Lake Bomoseen, and the right to build a dock and boat house upon said lake shore. Also the right to enter upon lands of grantors west of the premises above described and dig and open a spring of water and dig a ditch therefrom and lay an aqueduct to convey the water therefrom to the lot hereby conveyed, and the right at any time hereafter to enter upon the premises of the said grantors to clean and repair said spring and aqueduct. Also a right of way to the above described premises across other lands of said grantors from the public highway passing the dwelling house of the grantors."

On October 7, 1912, Bartholomew and wife, by their deed of that date, in due form and recorded, conveyed their farm to the defendant, subject to the exception set forth in the deed, so far as material here, as follows:

"Always excepting however and reserving certain cottage lots and appurtenant rights which were conveyed by these grantors as follows: * * *; and to J. H. Stevens by deed dated Sept. 24th, 1909, and recorded in Book 29, Page 77."

This bill was brought to restrain the defendant from obstructing the plaintiff in his use of a spring, and of a certain right of way from the public highway to the plaintiff's premises, both of which are situated on defendant's farm, and are rights which the plaintiff claims to own by virtue of his aforementioned deed. The case was heard by a special master. Exceptions were taken to the report by both parties. The chancellor overruled all the exceptions, granted the prayer of the bill as to the spring, and denied the prayer as to the right of way. The case is here on plaintiff's appeal.

The only questions for review relate to the right of way.

Regarding this right of way, the defendant stands in the shoes of the Bartholomews. By their grant to the plaintiff, the right of way in question is to extend from the public highway to the premises--the "Camp'--conveyed by the same deed, "across other lands of said grantors" and passing their dwelling house. By the fair meaning of the grant, the route throughout is to be over such "other lands," as well as past the dwelling house.

The plaintiff's "claimed right of way" passes immediately in front of the dwelling house, and (referring to the map, Exhibit 3) extends from A-4 to A-5, to A-6, and to A-7, the last named point being at the southwest corner of plaintiff's premises. Scaling the map, this course runs northerly from A-4 through defendant's orchard for a distance of approximately 1,300 feet. Defendant objects to such way being in front of his dwelling house, rather than back of it, and also to its running through his orchard. Regarding the orchard the findings show that in the spring of 1913 defendant took possession of the farm, and in April of that year he set out several thousand apple trees, in rows twenty feet apart, the trees being the same distance apart in the row. Over twenty-five and not over forty of these trees will have to be removed if plaintiff has a way through the orchard as claimed by him, of a size adequate for vehicles. The trees have been carefully planted and cared for, and produce good fruit. It is found on evidence properly received for such purpose, that the said trees are of large and substantial value. At the time defendant planted the apple trees, he had no knowledge, nor cause to believe, that the plaintiff claimed a way where the map shows the "claimed right of way" is now located. Nor was there any evidence that the plaintiff knew the apple trees were planted across the "claimed right of way" before his return in the summer of 1913, and from that time on he used the route in front of the dwelling house, and from A-4 to B, B, B, the "D. & H. Way" (discussed below) to his camp, for all the vehicles that he had come from Castleton Corners; but when he went on foot towards Castleton Corners, he passed through the orchard by the route of the "claimed right of way." Plaintiff gave no notice to the defendant that he asserted a right to the "claimed right of way," when in 1913 he found the trees had been planted, and never made any complaint about the trees, or the "claimed right of way" till the commencement of this litigation.

Long prior to the conveyances named in the exception specified in the deed from the Bartholomews to defendant, the Rutland & Whitehall Railroad Company entered upon said farm and occupied a part thereof for its right of way, to wit, on or before November 1, 1852, and the strip of land so occupied is 2,122 feet long and 66 feet wide, running across the farm from north to south, westerly from the "Camp," between it and the lake. It appeared that the rights of the aforenamed railroad company have been assigned and transferred, the last assignment being to the...