Ira H. Lafleur, Et Ux. v. William Zelenko,

• Citation: 141 A. 603,101 Vt. 64
• Parties: IRA H. LaFLEUR, ET UX. v. WILLIAM ZELENKO, ET AL
• Decision Date: 02 May 1928
• Court: United States State Supreme Court of Vermont

141 A. 603

101 Vt. 64

IRA H. LaFLEUR, ET UX. v. WILLIAM ZELENKO, ET AL

Supreme Court of Vermont

May 2, 1928

February Term, 1928.

Easements---Grant of Undefined Right of Way---Who May Designate Location---How Designated---Conclusiveness When Location Once Established---Right of Way Appurtenant as Property Right---Right to Injunctive Relief To Protect Easement---Establishment of Right of Way by User and Acquiescence---Effect of Intention To Select Another Route---Effect of Willingness of Adjoining Lot Owners To Permit Obstruction of Right of Way.

1. Where deeds to lots containing grant of right of way thereto over other land of grantors, did not locate right of way, but simply granted right without limiting or defining it grantees were entitled to a convenient, reasonable, and accessible way, having regard to the interest and convenience of owner of land as well as to their own.

2. In such case, owner of servient estate has, in the first instance, right to designate the location, but, if he fails to do so, person entitled to the right of way may select suitable route, having regard for the interest and convenience of owner of servient estate.

3. While an undefined right of way granted by deed may be given definite location by subsequent agreement of parties, in absence of such agreement practical location and use of such way by grantee under his deed, acquiesced in by grantor at time of grant and for a long time subsequent thereto, operate as an assignment of right, and way so established is deemed to be what was intended to be conveyed by deed, and the same in legal effect as if it had been fully described by terms of grant, though grantee is not necessarily entitled to way commonly used prior to the conveyance.

4. After undefined way granted by deed has been given definite location by practical location and use by grantee, acquiesced in by grantor at time of grant and for a long time subsequent thereto, grantor or those claiming under him cannot thereafter legally obstruct way so selected and defend by showing another way or mode of enjoyment in a different line or direction, although it may be equally convenient with right or privilege originally granted.

5. An easement, such as a right of way appurtenant, is an incorporeal hereditament, and one holding title thereto has same right of property therein as he has in hand, and cannot be divested thereof without his consent.

6. One holding title to an easement such as a way appurtenant, which is an incorporeal hereditament, if his way is illegally obstructed, is entitled to injunctive relief.

7. In suit to enjoin obstruction of road, claimed by plaintiffs under deeds granting a right of way over land of grantors but failing to limit or define such right, held that the right of way as intended to be conveyed by such deeds had been located and defined by user and acceptance, and that plaintiffs were entitled thereto.

8. Road, claimed by grantees under deeds granting undefined right of way, held not shown to be merely temporary because grantees intended to construct another road and started work upon it, where such work was abandoned during same year and nothing further done thereon, and former roadway was continued in use and repairs and work were performed thereon with knowledge and acquiescence of grantors in deed and their successors.

9. In suit to enjoin defendants from obstructing road claimed by plaintiffs under deeds granting undefined right of way location of which had become established by user and acquiescence, fact that suit was brought by plaintiffs in behalf of themselves and owners of adjoining lots, and that such other lot owners did not object to road's obstruction, and were willing to use another road furnished by defendants, did not affect situation of plaintiffs, whose rights could not be determined by those of others who were not in any way their privies in title.

APPEAL IN CHANCERY. Heard on bill, answer, and facts found by the chancellor, at the June Term, 1927, Addison County, Thompson Chancellor. Bill dismissed. The plaintiffs appealed. The opinion states the case.

Decree reversed and cause remanded, with directions that a decree be entered for the plaintiffs in conformity with this opinion, with costs of suit.

Marvelle C. Webber, Ira H. LaFleur and Wayne C. Bosworth for the plaintiffs.

Present: WATSON, C. J., POWERS, SLACK, MOULTON, and CHASE, JJ.

OPINION

MOULTON

The plaintiffs own a parcel of land, with camp buildings thereon, situated on the northerly shore of Lake Dunmore, and are entitled, by their deed, to a right of way over land now owned by the defendants. They seek to enjoin the defendants from obstructing a road which they claim to be their right of way. The defendants admit the obstruction of the road, but say that it is not the right of way which belongs to the plaintiffs. There was a hearing before the chancellor who, after hearing the evidence and filing a finding of facts, entered a decree dismissing the bill. The plaintiffs have appealed.

In the finding of facts the following appears: In August, 1898, Frederick Kopper and Edward S. Marsh conveyed to Frank C. Meehan, his heirs and assigns, a tract of land bordering on the northerly end of Lake Dunmore, which included the lands now owned by the respective parties to this suit. There was also conveyed to Meehan the right to construct a road through lands of the grantors from the highway to and along the rear of the parcel described in the deed, which road was laid out and constructed in 1899, easterly from the highway to and along a part of the northerly boundary of the Meehan property, for a distance in all of 43 rods, 11 links.

In 1914 a cottage and an icehouse stood upon the Meehan property, several hundred feet northerly from the lake, and a dance pavilion was in process of construction. From the easterly end of the road constructed along the northerly boundary of the property in 1899, another road extended in a southerly direction to the cottage and icehouse. This roadway was never laid out, had no definite boundary, but was marked in places by travel. Where the road passed over such part of the property as was not wooded, traffic did not follow any particular route, but travelers used such tracks as best suited their convenience.

In 1914 the Meehans sold five lots from the southeast corner of their land. Each lot had a frontage of 100 feet on the lake shore and a depth of 300 feet. One of these lots was sold to Am. Dec. Vittum, his heirs and assigns, on September 17, 1914, and the deed included: "Also a right of way over lands of said grantors to said lot." Two other lots were sold on September 21, 1914, to Allen Calhoun, Sr., his heirs and assigns, and the deed contained the following: "And said grantors convey to said grantees a right of way to each of said lots over the lands of said grantors that adjoin said lots." By the deeds of all the lots a provision was made for a right of way, extending from east to west, along the northern boundaries of the five lots, to be 20 feet wide, 10 feet on the lots and 10 feet on the Meehan land. This right of way had its western terminus not far from the icehouse. After the conveyance of the lots, until the summer of 1927, the only way of reaching the lots was to travel over the roadway leading to the icehouse, and thence over a roadway, first used in 1915, from the icehouse to the westerly end of the right of way extending along the northerly boundary of the lots. During this period, the owners of the lots, including the plaintiffs, did work on the roadway, principally on that part leading from the icehouse to the lots, by drawing dirt, blowing out stumps, and doing other work which would make it more easily traveled. This part of the roadway is not defined except as it is shown by the travel and work on it.

The plaintiffs acquired title to one of the lots and right of way deeded to Allen Calhoun, Sr., by the Meehans, by deed from Calhoun, dated September 8, 1921. This lot is the most westerly one of the five lots sold by the Meehans. At the time of the purchase there were no buildings on the lot, but since then the plaintiffs have erected a cottage, garage, and icehouse and power room thereon, and have cleared the lot of underbrush and expended a large sum of money in the improvement of the property. The plaintiffs acquired title to the Vittum lot and right of way on May 29, 1926.

At the time the Meehans sold the lots in 1914, it was their intention that the right of way to them should be a continuation of the road laid out in 1899 from the highway along the northern boundary of their land. This proposed right of way was to extend easterly along the northern boundary to the eastern boundary, then turn south along that boundary until it connected with the eastern end of the right of way which extended along the northerly line of the lots. In the fall of 1914, Meehan cut through the woods for 750 feet along the line of the proposed right of way, but did nothing further as he was engaged in completing the construction of the dance pavilion on his land, and after that was completed he did no more work on the road. The proposed right of way was in 1914, as the chancellor has found, "talked over with the purchasers of the lots."

On September 1, 1925, the Meehans conveyed the property and right of way from the highway to O. H. and A. N. Coolidge. The former died in August, 1926, and the latter, his widow, on December 13, 1926, conveyed the property acquired from the Meehans to the defendants.

During the period of ownership by the Meehans and the Coolidges, no objection was made by them to the owners of the lots passing over the roadway extending southerly from the road built in 1899 to the icehouse, and...