Laird Properties New England Land Syndicate v. Mad River Corp.

• Decision Date: 11 April 1973
• Docket Number: No. 78-72,78-72
• Citation: 305 A.2d 562,131 Vt. 268
• Parties: The LAIRD PROPERTIES NEW ENGLAND LAND SYNDICATE v. MAD RIVER CORPORATION.
• Court: Vermont Supreme Court

Page 562

305 A.2d 562

131 Vt. 268

The LAIRD PROPERTIES NEW ENGLAND LAND SYNDICATE v. MAD RIVER CORPORATION.

No. 78-72.

Supreme Court of Vermont.

April 11, 1973.

Motion for Reargument Denied May 21, 1973.

Adams & Meaker, Waterbury, for plaintiff.

Theriault & Joslin, Montpelier, for defendant.

Before SHANGRAW, C. J., and BARNEY, SMITH, KEYSER and DALEY, JJ.

SHANGRAW, Chief Justice.

This action was commenced by the plaintiff (hereinafter referred to as Laird) against the defendant (hereinafter referred to as Mad River) by a petition to quiet title to a parcel of land in the Town of Fayston, Vermont, containing about three acres of land lying between State Highway No. 17, the so-called McCullough Turnpike, and a much larger tract of land owned by Laird.

The three acre parcel in controversy is located generally northerly of the McCullough Turnpike. This highway runs generally east and west between the Waitsfield-Fayston area in Washington County and the Starksboro-Bristol area in Addison County. Both parties have extensive real estate holdings in the area of the Turnpike.

The disputed area is somewhat shaped like a piece of pie with the point removed. The removal line is the southerly boundary of the property (and the northerly sideline of the Turnpike). It runs generally parallel to the center line of the Turnpike and some 50-75 feet northerly thereon. The north line of the property is generally parallel to the Turnpike center line and about 250 feet northerly thereof. The southwesterly boundary of the disputed area is an original lot line between the Cloud and McCullough lots, so-called. It is also part of the original line between Lot 13, Range 7 and Lot 14, Range 7 in the Town of Fayston.

The boundaries of the three acre parcel of land are not in dispute. The controversy concerns title, record or by adverse possession.

By way of conclusions the court determined, as a factual matter, that the record title to the premises in question was in the plaintiff. However, by invoking the rule of 'tacking' it determined that the defendant acquired title to the three acre lot by adverse possession, citing Montgomery v. Branon, 127 Vt. 83, 238 A.2d 650 (1968), and Hassam v. Safford, 82 Vt. 444, 74 A. 197 (1909).

On April 24, 1972, a judgment order followed adjudging that the defendant had acquired title to the land in question by adverse possession, subject to a right of way in favor of the plaintiff for logging purposes over the existing logging road. The plaintiff has appealed to this Court for review.

Title to the lot in question was conveyed to James H. McCullough and Ai A. McCullough by warranty deed of H. O. Ward, dated January 3, 1902. By deed of November 19, 1903, the McCulloughs conveyed to W. G. McAllister all the premises conveyed to them by H. O. Ward, with the exception of certain premises reserved and described in the McAllister deed.

The plaintiff claims title to the disputed three acre parcel of land through W. G. McAllister as part of the premises conveyed in the foregoing deed from the McCulloughs. It proved a clear chain of title running back to McAllister.

The defendant, on the other hand, traces its record title through proven conveyances back to the McCulloughs on the theory that the disputed land was not conveyed to McAllister, but reserved. Record title, therefore, as between the parties, depends on whether the disputed area was conveyed, or reserved, in the McCullough-McAllister deed.

The description in the reserved parcel of land described in the McCulloughs' deed of November 19, 1903, to W. G. McAllister is not precise. By finding No. 13, the court determined that the area in dispute was conveyed to McAllister by the McCulloughs and not reserved. By this finding the court determined that the record title to the three acre area in question 'is in the plaintiff and not in the defendant'.

The disputed land is contiguous with other extensive land owned by the plaintiff acquired by deed from Ward Lumber Company, Inc., dated December 20, 1968. Burton Ward and other members of the Ward family were predecessors in title of the Ward Lumber Company, Inc.

In general, these properties have always been wood, timber and forest lands and used as such. There are no buildings on the disputed area. The plaintiff and its predecessors in title own land north of the disputed area. There have been lumbering operations conducted on such land located north of the disputed area at various times by the plaintiff's predecessors. It is unclear whether trees were cut on the disputed area in these operations, but a few trees were cut by the plaintiff in a similar operation in 1970.

It was also found by the court that the 'Ward Lumber Company, Inc., from 1938 on, maintained a logging road through the disputed land over which it transported timber cut on its adjoining lands to the north.'

By finding no. 18, the court found that:

'Plaintiff and its predecessors have continuously used and occupied their large tracts contiguous to the disputed land on the north, to the extent that timberland is customarily used and occupied and have traversed the disputed area in connection with such use. They neither sought nor received permission for such traverse of the disputed land.'

In 1936, James and Urea McCullough quitclaimed to the State of Vermont some 31.31 acres which in its description included the disputed area. In 1948, Vermont purported to convey the same land to the defendants, reserving a strip 100 feet wide, 50 feet on either side of center line of the McCullough Turnpike. Thus, this deed purported to convey a strip about 200 feet wide northerly of the Turnpike. However, the court found:

'. . . that these conveyances did not serve to transfer record title to the disputed area to the defendant, since neither James and Urea McCullough, nor the State of Vermont, had such title at the times of their respective conveyances.'

In 1968, to perfect its title to the portion of the Turnpike just southerly of the disputed area (the so-called 'point of the pie'), the State negotiated for, and took a quitclaim deed from Ward Lumber Company, Inc. By finding No. 21 the court determined that:

'None of the parties involved seem to have paid any particular attention to the disputed area prior to 1956. The defendant, although it evidently assumed it had acquired title from the State, did nothing whatever with the area. It did not use it for any purpose, fence it, or place on it any visible indications of its claimed ownership. The plaintiff, not completely sure of all the boundaries of its extensive holdings, started a 'comprehensive survey' of them, largely by the surveyor Paul Bigelow, beginning around 1953.'

Continuing the findings, after taking its deed from the McCulloughs in 1936, the State of Vermont proceeded to construct a road along the center line which had been laid out in 1935. This center line was in the approximate, though not always the exact, center of the 500 foot wide strip conveyed by the McCulloughs and other grantors. One of the other landowners conveying the land to the State of Vermont for the purpose of accommodating the highway was Burton Ward.

At about the time of these transfers, Burton Ward, in the company of Alton Doe, who was handling property negotiations for the State, walked the highway center line in front of his property and the 31.31 acres deeded by the McCulloughs, including the disputed area. At no time did Mr. Ward state that he owned any of the property involved other than the tract which he was deeding to the State.

In 1956, the defendant, while staking out lots on the disputed area, contacted Owen Ward, then head of Ward Lumber Company, Inc., plaintiff's predecessor in title. At that time Mr. Ward made no claim of title to the disputed land. The first claim of title by Ward Lumber Company, Inc., was advanced shortly afterward, in September of 1956.

From its purchase in 1936, through completion of the road about 1939 and thereafter until its conveyance to the defendant in 1948, the court, by finding no. 27, found that the State of Vermont was in open possession of the disputed area under a claim of right under its deed. It further determined that there was no interruption of such possession.

The court also found, by finding no. 28, that the defendant, from the date it acquired the deed from the State of Vermont in 1948, has continued possession of the disputed area along with adjacent acreage included in its deed in a manner consistent with the general character of the property.

We continue with the substance of further findings of fact.

In the summer of 1956, the defendant caused several lots to be surveyed and staked in the vicinity of the disputed area. One full lot and a portion of another were within the disputed area. Lot no. 5, wholly within the area, was about to be sold to Peter Parker when the defendant learned that Ward Lumber Company, Inc., was disputing its title. This lot was not conveyed. Defendant has done nothing in the disputed area since that time.

Plaintiff built a road through the area in question in 1956-1957 without seeking anyone's permission. Defendant made no objection and took no action to prevent plaintiff's use.

The court found that defendant appears to have paid taxes on the disputed area since its acquisition, although in just what amount cannot be determined. Up to and until the last three or four years, the Fayston Grand List carried a property taxed to the defendant as 'Land deeded by State 1948' in one lump assessment.

There are several trees along the northerly boundary of the disputed area which have been marked with red paint. They are marked on the north side of the trees in question. They were first noticed last fall and appear to have been there for some time previous. The court was unable to find from the evidence by whom the trees were so marked or when.

After constructing its road in 1957, the plaintiff placed thereon a...