J. P. Neill v. Burton S. Ward

• Decision Date: 05 November 1930
• Citation: 153 A. 219,103 Vt. 117
• Parties: J. P. NEILL v. BURTON S. WARD
• Court: Vermont Supreme Court

153 A. 219

103 Vt. 117

J. P. NEILL v. BURTON S. WARD

Supreme Court of Vermont

November 5, 1930

May Term 1930.

Boundaries---Legality of Field Book---Towns---Status of Adjourned Proprietors' Meetings---Necessity that Warning for Proprietors' Meeting Specify Business To Be Transacted---Statutes---Powers of Legislative Bodies During Session---Right of Town To Change Purposes by Vote---Presumption with Respect To Vesting of Rights under Action Proprietors' Meeting---Admissibility of Field Book---Location upon Ground of Original Lot Lines as Controlling---Sufficiency of Offer Respecting Town Plan and Description in Field Book---Trial---Effect on Ruling of Admissibility of Evidence Where Proof Does Not Come up to Offer---Requisites for Sustaining Objection on Grounds of Immateriality and Irrelevancy---Effect Where Evidence Admis- sible for Certain Purpose---Inadmissibility of Town Charter as Foundation for Allowances Not Mentioned in Field Book---Presumption That Committee To Lay Out and Survey Lots Exercised Authority Granted by Charter---Binding Effect on Party by His Claims as to What Field Book Showed---Burden of Showing Location of Claimed Common Boundary Line---Deed---Description of Lot by Reference to Its Number---Effect of Absence of Marks upon Ground To Indicate Claimed Location of Lines---Lines and Monuments Marked upon Ground as Constituting Survey---Courses and Distances as Yielding to Known Boundaries or Monuments---Intent Where Deed Describes Lot by Number---When Resort May Be Had to Lines of Adjacent Lots---Sufficiency of Evidence To Establish Claimed Line---Limitation of Party Measuring Lots According to Description in Field Book---Adverse Possession---Possession as Limited by Marked Boundary---Disposition of Cause by Supreme Court---Conclusiveness of Evidence To Establish That Marked Lines and Corners Are Same as Original Survey---Establishment of Boundary by Recognition and Acquiescence of Adjoining Owners---Trial---Direction of Verdict----Uncontradicted Testimony as Basis of Directed Verdict---Effect of Claim of Counsel That Uncontradicted Testimony Is Untrue---Presumption---Burden of Proof---What Governs When Existence of Location of Monuments Not Proved.

1. In action of trespass involving boundary of lot, general objection that field book had no legality under statute, held without merit, in view of legislative history and action taken.

2. Adjourned proprietors' meetings, held but continuations of same meeting without any loss or accumulation of powers and nothing could be transacted at any of such adjourned meetings unless it could have been transacted at called meeting.

3. Where statute provided that warrant for proprietors' meeting should specify business to be transacted, any business transacted without article in warning therefor was void.

4. All deliberative or legislative bodies, during their session have power to do and undo, consider and reconsider, as often as they think proper, and it is final result only which is to be regarded.

5. Town may change its purposes, and may express that change by its vote, and unless some right in another has been acquired or vested under its action, no one may complain of change.

6. Where it did not appear that any right in another had been acquired or vested under action of proprietors' meeting it will be presumed, in support of vote of reconsideration, that none had been acquired or vested.

7. In action of trespass involving boundary of lot, objection to admission of field book because of having no relation to old draft of 1798, but rather to new draft authorized and made in 1804, held untenable, since it appeared from records that only one survey was made, and that such survey was on basis of draft of 1798, and that surveyor was member of committee chosen to make survey; field book itself having nothing to do with drafts, but merely being description of courses and distances of lines, and of corners of lots as they were surveyed, and as they appear by number and division on town plan.

8. Actual location upon ground of original lot lines will control, if capable of being ascertained.

9. Town plan and description of lots in field book, held admissible on offer to show that lot lines of certain lots, as actually surveyed and marked on ground, were substantially as described in field book.

10. Fact that evidence did not come up to offer of proof did not affect correctness of ruling of court as to admissibility on offer.

11. To sustain objection on grounds of immateriality and irrelevancy alone, it should be made to appear that evidence is clearly immaterial and irrelevant.

12. Where charter of town was admissible for certain purposes, there was no error in admitting it against objection that it was immaterial and irrelevant.

13. In action of trespass involving boundary of lot, charter of town held inadmissible as foundation for allowance for highways, ledges, etc., not mentioned in field book to account for overrun in survey by plaintiff's surveyor.

14. Presumption is that committee, chosen by proprietors to lay out and survey lots under charter giving committee authority to make allowances called for by it in their layout and survey, made all allowances permitted by law, and that same are included in lines oœ lots as shown by town plan and described in field book.

15. In action of trespass involving boundary of lot, where plaintiff at trial claimed that field book showed an actual survey, and, in locating his line between lots 59 and 60, relied upon location and boundaries of lots 53 to 59, inclusive, as shown by town plan and field book, in surveying same, he was bound by descriptions of lots as given in field book.

16. In such action, burden is upon plaintiff to show that location of common line between lots upon ground was where he claimed it.

17. Description in deed of lot by reference to its number is in legal effect according to lines of such lot as surveyed and established in original division of town.

18. Where description in deed of lot is by reference to its number, lot lines, if surveyed upon ground, serve as monuments in fixing boundaries.

19. In action of trespass involving boundary of lot, fact that there were no marks upon ground to indicate location of lines of such lot as claimed by plaintiff was strong evidence that such lines were never surveyed, or, if surveyed, that they cannot be ascertained.

20. When lines have never been surveyed, or, if surveyed, their location upon ground cannot be ascertained, but lines have been actually run and marked upon ground, and have been recognized as correctly located for more than fifteen years by all parties in interest, such actual lines and monuments, marked upon ground, constitute survey, and will control courses and distances named in original layout.

21. Where there is conflict between courses and distances on one hand, and known boundaries and monuments mentioned in description in deed, courses and distances as general rule yield to such boundaries or monuments.

22. All lands are supposed to be actually surveyed, and where deed describes lot by its number, intent is to convey land according to that actual survey.

23. Resort may be had to lines of adjacent lots to determine location of lot when its location on ground cannot be ascertained.

24. In action of trespass involving boundary of lot, evidence held to show that certain line of marked trees, as claimed by defendant, was true dividing line between lots as located on ground.

25. In such action, plaintiff, in measuring lots according to their descriptions in field book, held confined to courses and distances of lot lines as actually given in book, plus an allowance of one unit in thirty for swag in chain.

26. Where location of division line between lots as marked upon ground and as shown by town plan and field book are substantially the same, actual possession of part of lot by plaintiff and his predecessors would not extend by implication beyond that line.

27. In cases brought into Supreme Court upon exceptions, when question is as to sufficiency of undisputed evidence to support verdict, and it is raised in some way other than by motion for directed verdict, and exception is sustained, if it is clearly apparent that on another trial party against whom reversal is made could not strengthen his case, Supreme Court will render such judgment as trial court should have rendered, but if it appears that such party will be able to make a stronger case on another trial, or that an injustice will he done by rendering final judgment in Supreme Court, cause will be remanded.

28. Undisputed evidence as to age of marked lines and corners of lots in question and of adjoining lots; that such lines have been recognized and acquiesced in as true lot lines by all parties in interest for many years; and that other surveys have followed these same lines; are, in absence of proof to contrary, conclusive that they are true lines and corners located and marked in original survey.

29. Adjoining lot owners may by recognition and acquiescence in marked line as true dividing line between such lots establish division line of their lands, which will be binding upon them and their privies.

30. Court may withdraw case from jury and direct verdict, where evidence is undisputed or is of such conclusive character that court in exercise of sound judicial discretion would be compelled to set aside verdict returned in opposition to it.

31. General rule is that where a credible witness testifies distinctly and positively to a fact and is not contradicted, and there is no circumstances shown from which an inference against fact testified to can be drawn, fact may be taken as established, and verdict directed on such evidence.

32. Claim by...