J. H. Silsby & Co. v. C. A. Kinsley

Decision Date11 October 1915
Citation95 A. 634,89 Vt. 263
PartiesJ. H. SILSBY & CO. v. C. A. KINSLEY
CourtVermont Supreme Court

February Term, 1915.

TRESPASS for breaking and entering plaintiffs' close with a count in trover for the conversion of logs cut thereon. Plea, the general issue. Trial by jury at the March Term, 1914, Orleans County, Waterman, J., presiding. Verdict and judgment for plaintiffs. Defendant excepted. The opinion states the case. Here is the "sketch" referred to in the opinion.

Judgment reversed and cause remanded.

J W. Redmond for the defendant.

Young & Young for the plaintiff.

Present: MUNSON, C. J., WATSON, HASELTON, POWERS, AND TAYLOR, JJ.

OPINION
TAYLOR

The action is trespass for breaking and entering plaintiffs' close described as lot 14, range 17, in the town of Lowell, with a count in trover for the conversion of certain saw logs. The defendant admitted entering the land in dispute and the removal of substantially the quantity of timber claimed by the plaintiffs, but claimed title in himself both to the land and timber. At the time of the entry complained of the plaintiffs owned lot 14, range 17, and the defendant owned lots 13 and 14, range 16, in said town. Range 17 lies immediately west of range 16 and the lots in each range are numbered consecutively from south to north; thus the plaintiffs' land abutted upon that of the defendant, the southeast corner of their lot being the southwest corner of defendant's lot 14, range 16. There is one more lot in range 16 than in range 17, owing to the irregular shape of the town. This lot is numbered 15, range 16, and was formerly owned by one Mulligan and referred to at the trial as the Mulligan lot. It will be seen that plaintiffs' land, which extended to the town line, abutted upon defendant's lot 14, range 16, and the Mulligan lot. The land in dispute is a rectangular tract 76 rods in width and extending across the entire width of lot 14, range 16. Both parties claimed title to the disputed tract, the plaintiffs as part of lot 14, range 17, and the defendant as part of lot 14, range 16; and the controversy was as to the location of the division line between said lots. The location of the land in controversy is shown by the annexed sketch and is the tract marked a, b, d. c. Both parties derive title to their respective lots from one Hanson E. Lewis who, as early as June 1, 1887, owned the tract embracing lots 12, 13 and 14, range 16, and lots 12, 13 and 14, range 17. The plaintiffs' chain of title is as follows:

Deed from Hanson E. Lewis to John R. Sullivan, Aug. 13, 1891;

Deed from John R. Sullivan to George E. Young. July 9, 1894;

Deed from George E. Young to Gilbert & Pope, Nov. 24, 1898;

Deed from Thomas Gilbert to W. H. Pope. Dec. 1, 1899;

Deed from W. H. Pope to J. H. Silsby & Co., July 22, 1912.

The defendant acquired title to his lots Sept. 30, 1911, by deed from Adelaide L. Lewis, Executrix of the will of Hanson E. Lewis.

The defendant's evidence tended to show that the true range line between ranges 16 and 17 is as shown in the above sketch and that the land in dispute is part of lot 14, range 16. The exceptions state, "The plaintiffs claimed, and the evidence tended to show, that the range line between ranges 16 and 17 as claimed by the defendant was run south of lot 12 and marked as testified by the defendant's surveyors, one hundred years ago; that said range line north of the south corner of 12 had no marks as old as the range line south of said corner; that there were a few trees near that line on lot 12 with marks older than the Webster survey of 1887 (hereinafter referred to); that on lot 13 there were no old marks; that across lot 14 in range 17 there were no marked trees indicating a range line west of the Mulligan line (also later referred to) * * * except the line run by the defendant since this controversy began." It appears from the exceptions that the defendant's evidence tended to show several old marked trees near his claimed range line on lot 12 and one old mark on lot 13, but no old marks on lot 14.

As we construe the exceptions the plaintiffs practically admitted that the original range line between ranges 16 and 17 south of lot 12 was marked upon the ground as claimed by the defendant. It also fairly appears that there was no testimony of existing marks upon the ground indicating that that line had been extended north between lots 14 in ranges 16 and 17 before this controversy arose. In this connection it appeared that plaintiffs owned lot 10, range 16, did not own the adjoining lot in range 17 and that they cut the timber on their lot to the range line claimed by the defendant.

It appeared that one Lawrence Mulligan owned lot 15, range 16, from March 4, 1885 to April 5, 1902; that in June, 1887, shortly after Hanson E. Lewis acquired title to said six lots, he sent John Webster, a land surveyor, and one Anderson to run out and mark the boundaries of his land; that pursuant to their directions they ran and marked the south lines of lots 12 in both ranges and the east line of lots 12, 13 and 14, range 16; that they also ran and marked as part of the north line of said lots the line from the northeast corner of lot 14, range 16, westerly to the so-called "Mulligan corner," (marked d on the sketch), being the corner claimed by the plaintiffs as the northwest corner of lot 14, range 16, where they found a spruce tree marked as for a corner with new marks; that as the last work they did they ran and marked a line northerly from said corner to the Westfield line, being the line d-e on the sketch. This line the plaintiffs claim as part of the east line of their lot. The defendant's evidence tended to show that there was no marked line north from the Mulligan corner until the Webster survey, while the plaintiffs' evidence tended to show that it was run and marked earlier and that it "was marked when Mulligan purchased his lot in 1885." Whether we construe the exceptions to mean that the Mulligan line was run and marked at the time Mulligan purchased his lot, or that it had been marked at some previous time, it is evident that it was a comparatively recent marking.

In the fall of 1891, after he had purchased lot 14, range 17, John R. Sullivan caused a line to be run and marked south from the Mulligan corner a distance of 100 rods in the same course as the line that Webster had run in 1887 north from that corner, for the purpose of determining his south line. The line thus run by Sullivan extended across lot 14, range 16, and is the line plaintiffs claim as the division line between their lot and defendant's 14, range 16. It was unmarked before Sullivan caused the survey to be made. Referring to the Mulligan line and its extension south across lot 14, range 16, the exceptions state that the plaintiffs claimed that this was the true east line of their lot, whether, it was the true range line or not. The exceptions do not disclose any claim by plaintiffs that the original allotment of the town of Lowell located this line farther east than the line between ranges 16 and 17 south of lot 12. In view of what does appear we take the exceptions to mean that their claim in this regard was that this line had become the true east line of their lot by acquiescence or by adverse possession. The case is barren of any evidence that this line was ever established as a part of the range line, or as the true division line between lots 14 and 15, range 16, and lot 14, range 17, unless it had become such by one or other of these means. Plaintiffs say in their brief that whether their claimed line was the original range line was immaterial as the case stood. The court in its charge, which is before us, states the claims as follows: "The plaintiff and defendant disagree in regard to the lines of lot 14, range 17. The plaintiff claims that his lot, 14 in range 17, extends down east to what is called the Mulligan line. He claims that he has a right to have that extended down to the Mulligan line on account of having occupied to that line for so long a time that he can hold it by adverse possession, as it is called. He also claims that he has a right to that land down to the Mulligan line on the ground of what has been called here in the course of the trial as acquiescence to a line by the parties upon both sides, so it will be necessary for me to call your attention to these two claims and the grounds of them and the law bearing on them." Having thus stated plaintiffs' claim, it is to be presumed that the court has stated the whole claim. Akeley v. Carpenter, 87 Vt. 248, 251, 88 A. 897.

It is important to a proper understanding of the questions raised to consider first what, on the evidence, would be the location of the division line between lot 14, range 16, and lot 14, range 17, unaffected by acquiescence or adverse possession. It is a well known fact that the original proprietors of townships usually had them laid out into lots which they and their successors have been accustomed to sell by number without more particular description. Described thus, the lot lines, if surveyed and marked upon the ground, serve as monuments in fixing the boundaries. It was held in Spiller v. Scribner, 36 Vt. 245, that the description of a lot by reference to its number is a description in legal effect according to the lines of such lot as surveyed and established in the original division of the town and is just as definite, though not as particular, as it would be if the lines were given; that the description should receive the same construction and have the same legal effect in one case as in the other; and that such description was controlling and determined the extent of the land in controversy. See Warren v. Pierce, 6 Me. 9, 19 Am. Dec. 189.

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