Levi Poronto And Estella Poronto v. John Sinnott

• Decision Date: 28 October 1915
• Citation: 95 A. 647,89 Vt. 479
• Parties: LEVI PORONTO AND ESTELLA PORONTO v. JOHN SINNOTT
• Court: Vermont Supreme Court

95 A. 647

89 Vt. 479

LEVI PORONTO AND ESTELLA PORONTO v. JOHN SINNOTT

Supreme Court of Vermont

October 28, 1915

May Term, 1915.

APPEAL IN CHANCERY. Heard on the pleadings and a master's report, and defendant's exception thereto, at the June Term, 1914, Caledonia County, Butler, Chancellor. Exceptions overruled, and decree for the plaintiffs. The defendant appealed. The opinion states the case.

Decree reversed and cause remanded.

Dutton & Mulcahy for the plaintiffs.

Simonds Searles & Graves for the defendant.

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

OPINION

POWERS

These parties own adjoining farms in the town of Walden. The controversy is over a right of way claimed by the plaintiffs across a part of the defendant's farm to their wood lot and sugar place. The proceedings are in chancery, and the result below was a decree for the plaintiffs, establishing the right of way and enjoining the defendant from interfering with their use of it.

It is admitted that the plaintiffs have no such way by express grant, and they seek here to establish the same in three ways: (1) Estoppel; (2) implied reservation when the common owner, Enoch Foster, first conveyed the defendant's farm in 1841; and (3) prescription.

1. The doctrine of estoppel will not avail them for though it is found that Stafford, while he owned the defendant's farm, told H. N. Kingsbury, at the time of or prior to his purchase of the plaintiff's farm, that the wood road was used to draw wood and timber from a part of the latter farm, there is no finding of the essential fact that Kingsbury relied upon this statement in making his purchase. Royce v. Carpenter, 80 Vt. 37, 66 A. 888. It is suggested that we must assume that the court below inferred this fact from those reported. It is a fact necessarily required to support the decree rendered, and if it could reasonably be inferred from the other findings, and would save the case, our rule would require us to assume that the court of chancery supplied it by inference. All we know about this interview between Stafford and Kingsbury is shown by the finding that "H. N. Kingsbury, at the time or prior to his purchase, was informed by Stafford that this wood road" was used to draw wood and timber over from the nineteen acre piece belonging to the plaintiffs' farm. The circumstances under which this statement was made are not shown. Whether Stafford knew or ought to have known that Kingsbury was a prospective purchaser does not appear. Whether it was at the time of the purchase or before is left uncertain; and if before, how long before, we do not know. Whether the statement was made under such circumstances that Kingsbury had a right to understand therefrom that the owner of the plaintiffs' farm had a right to so use the road, or in such circumstances that he ought to have understood that it was in essence, as it was in form, a mere statement of fact, not implying a right but a privilege,--we cannot say.

The decretal order seems to indicate that it was not predicted upon an estoppel. It asserts that "the orators have the right to use said road, " etc. There is nothing to intimate that the court of chancery considered that the defendant was estopped to deny such right. Taken altogether, we do not think the record warrants us in saying that the required inference could reasonably be drawn.

2. Nor will the doctrine of implied reservation avail the plaintiffs for, while it is shown that such a way would be highly convenient to them, it is not strictly necessary, and we have recently held that an easement by implied reservation can exist only when it is one of strict necessity. Howley v. Chaffee, 88 Vt. 468, 93 A. 120.

3. The master says in his report that if upon the facts found a presumption arises that the use of this way by the plaintiffs and their grantors was under a claim of right, they have gained the same by adverse user; otherwise they have not.

The facts reported, so far as they need be here analysed, show that Enoch Foster conveyed the farm now owned by the plaintiffs to his son Ephraim, who occupied it until sometime after September 23, 1867. This was the date on which Stafford bought the farm now owned by the defendant. At that time there was a well-defined wood road leading from the highway across the latter farm to the nineteen acre wood lot constituting a part of the former farm. From that time until January, 1912, when this trouble arose, the several owners of the plaintiffs' farm have used this road for drawing wood and timber from said nineteen acre piece, and occasionally for drawing sap from the sugar bush thereon. None of such owners ever asked for or was granted permission to so use the road, and during all this time, such use was open and notorious, and with full knowledge on the part of the owners...