James B. Greene v. Arthur Helme

• Decision Date: 05 October 1920
• Citation: James B. Greene v. Arthur Helme, 111 A. 557, 94 Vt. 392 (Vt. 1920)
• Parties: JAMES B. GREENE v. ARTHUR HELME ET AL
• Court: Vermont Supreme Court

111 A. 557

94 Vt. 392

JAMES B. GREENE v. ARTHUR HELME ET AL

Supreme Court of Vermont

October 5, 1920

January Term, 1920.

APPEAL IN CHANCERY. Bill for an injunction restraining the defendants from interfering with the plaintiff in the use of a certain roadway. Heard on the bill, answer, replication and facts found by the Chancellor at the September Term 1917, Rutland County, Wilson, Chancellor. Decree for the defendants dismissing the bill with costs. The plaintiff appealed. The opinion states the case.

Decree affirmed and cause remanded.

John S. Dorsey and Walter S. Fenton for the plaintiff.

M C. Webber and B. L. Stafford for the defendants.

Present: WATSON, C. J., POWERS, TAYLOR, MILES, and SLACK, JJ.

OPINION

TAYLOR

The plaintiff brought this bill for an injunction to restrain the defendants from interfering with his use of a certain roadway in which he claims to have rights. A temporary injunction was granted, and, the issues having been framed, a trial was had before the chancellor, who filed findings of fact. The plaintiff filed exceptions to the findings, which were overruled, and a decree was entered dismissing the bill. The case is here on plaintiff's appeal.

Such rights, if any, as the plaintiff has in the roadway in question, depend upon the construction and application of a certain clause in a deed from J. J. McDonnell to Catherine McGrath, wherein the said McDonnell reserved or excepted certain rights in the property conveyed. This is the only point in issue under the pleadings. Said McDonnell was a Catholic priest, and Catherine McGrath was his sister and the former wife of Edward McGrath, one of the defendants. On April 10, 1895, Father McDonnell owned a farm and some land in the town of Poultney, bordering on Lake St. Catherine. On that date he conveyed the major part of this property to his sister as a gift, reserving about fifteen acres abutting on the lake, on which he had for several years maintained a summer cottage. After the reservation of this tract by metes and bounds the deed proceeds: "Reserving also the right to maintain all the avenues already existing on the said conveyed premises as they are now located, and at a uniform width of fifty feet, the center line of said avenues always to remain midway between the lines of shade trees as they exist at the time of this conveyance, along said avenues; also the right to care for, improve, or to remove any and all of said trees at will."

It is not contended but that the so-called reservations are, in contemplation of law, exceptions, and we so treat them though speaking of them as reservations, following the language of the deed. The plaintiff, who is a nephew of Father McDonnell, owns the reserved premises, having acquired title thereto under his uncle's will. The defendants own or occupy cottage lots, with summer cottages thereon, situated on the shore of Lake St. Catherine, in the vicinity of the plaintiff's land, within the tract conveyed to Catherine McGrath. This controversy arises over a roadway leading along the shore between the defendants' cottages and the lake. The plaintiff claims the right to use this roadway for access to his premises by virtue of the reservation in the deed, which the defendants deny, and have resisted by placing obstructions therein.

Much evidence was received, as the chancellor states in the findings, "for the purpose of obtaining light on the then existing conditions concerning the property in question at the date of the deed." For the most part the exceptions argued are addressed to the findings based on such evidence. From the findings not excepted to the following facts appear: There is a summer cottage, with a boathouse barns, and ice house, on the premises now owned by the plaintiff, which are occupied during a portion of the year. The premises were so used by Father McDonnell at the time of the conveyance in 1895, and had been from as early as 1882. The premises of both the plaintiff and defendants are situated in a wooded tract on the east shore of the lake. There is an open pasture between this woodland and the public highway. For many years a boathouse was located on the shore of what is now the plaintiff's land from which boats were let. Picnics were frequently held in the grove on the lake front. People going to the lake from the highway usually left the main road at a certain barway, but went in various places across the pasture to a point at the woods some distance south of the plaintiff's land, thence by a more or less well-defined roadway or trail in a westerly direction to the lake, and thence northerly along the shore, onto what is now the plaintiff's land. This travel was wholly over land then owned by Father McDonnell. There was also a trail leading from Father McDonnell's cottage across the land now owned by the plaintiff, in a more direct line to the highway. About 1882 Father McDonnell made certain road improvements. He worked the last named roadway from his cottage to the highway, and set out a line of maple trees on each side of the way across the pasture. The portion of the roadway between what is now the plaintiff's land and the highway is referred to in the evidence and findings as "Maple Avenue." At the same time he worked a road across the pasture from the barway referred to above to the point where the more southerly roadway or trail entered the woods, which he lined with a double row of balsams on either side. This piece of road is referred to in the evidence and findings as "Balsam Avenue." These two so-called avenues are nearly parallel and from six to eight hundred feet apart. He also worked a cross-road from Balsam to Maple Avenue in the pasture, near...