Montgomery v. Branon
| Decision Date | 06 February 1968 |
| Docket Number | No. 1078,1078 |
| Citation | 238 A.2d 650,127 Vt. 83 |
| Parties | Charles L. MONTGOMERY et al. v. W. Barry BRANON et al. |
| Court | Vermont Supreme Court |
Clayton H. Kinney, Rutland, and Black & Plante, White River Junction, for plaintiffs.
Hanford G. Davis, Brandon, for defendants.
Before HOLDEN, C. J., and SHANGRAW, BARNEY and KEYSER, JJ.
This is the same case reported in 125 Vt. 362, 216 A.2d 41. The plaintiffs' action is in ejectment to recover possession of a small lot of land lying on the westerly shore of Hinkum Pond in the town of Sudbury. The defendants concede superior title in the plaintiffs but claim ownership by adverse possession.
About 1921 or 1922 Charles Scott and wife built a camp in the northwesterly corner of the lot in question. Later, in 1924, the Scotts were deeded one-fourth acre of land, more or less, which included the land on which the camp was situated. By subsequent deeds to various users and occupiers of the camp property, the premises have been transferred to certain persons including the defendants. All of the deeds were duly recorded in the town land records.
In the previous proceedings the trial court found that the defendants had acquired by adverse possession only the land on which the camp sits. We there held that the court below had 'applied to rigorous a test to the defendants' evidence' in making its findings. We remanded the case 'for further findings' so that the bounds of defendants' lot would be set forth with certainty. On rehearing the court made new findings of fact and it is from certain of these findings and the judgment order that the defendants have appealed. The appeal brings before us the problem of the boundaries of the area acquired by the defendants by adverse possession.
The defendants' chain of title relates back to a deed from Charles W. and Mildred M. Scott to Walter F. Scott, dated October 23, 1926. The deed to the defendants and Thomas J. and Vivian Maroney was from Cecelia Mulcahy, dated October 18, 1943, the then owner. Each succeeding deed from 1926 conveyed the following described land:
Commencing about twenty feet westerly from the west shore of Hinkum Pond at a marked hemlock tree; thence westerly to an old pine stump; thence northerly to a point; thense easterly to a marked pine tree about twenty feet from the shore of Hinkum Pond; thence southerly to the place of beginning, containing one-fourth acre of land, be the same more or less, being bounded on all four sides by lands of Mary Germond. Also a right of way over lands owned by said Mary Germond to and from the road and to and from Hinkum Pond.
In 1952 the plaintiffs acquired record title to most of the land involved, including that upon which the camp is situated. In 1954 they bought other land to the west of their 1952 purchase which took in the balance of any land claimed by the defendants. The plaintiffs had knowledge of the existence of the camp and in 1959 challenged defendants' title by bringing this suit. Thereafter, the plaintiffs purchased the one-half interest of the Maroneys who were originally included as defendants. At issue is the one-half interest in the camp and land in the surrounding vicinity claimed by the defendants Branons.
By Findings 21 and 22 the trial court found that the defendants had acquired title to the following described land by adverse possession:
Beginning at a point where stands a pine tree located approximately twenty-nine feet from the west shore or westerly waters edge of Hinkum Pond, which tree bears or bore the legend S thereon and which tree will designate the northeast corner of the area here described, thence extending west therefrom in a straight line a distance of 99 feet; thence turning at a right angle and running in a southerly direction in a straight line a distance of 99 feet; thence turning a right angle and running east in a straight line and parallel with the first mentioned line a distance of 99 feet; thence turning a right angle and running northerly in a straight line parallel with the west shore line a distance of 99 feet to the pine tree and point of beginning.
The court stated in said finding that 'In the preparation of this description the Court has proceeded on the basis the camp building extends north and south lengthwise and is directly west of the pond.' The result of this is that each of the boundary lines drawn by the court runs parallel with the corresponding side of the camp building. The judgment order is rooted in this finding.
The defendants claim there is no evidence in the case from which the court could reasonably have found the lot acquired by the defendants was 99 feet square. They also claim the court has completely ignored the undisputed and uncontradicted evidence as to monuments and boundaries mentioned in the deeds.
The court below as triers of the facts is bound to impartially and judicially weigh and sift the evidence in arriving at the facts established by the evidence and pertinent to the issues involved. Potwin v. Tucker, Vt., 234 A.2d 430, citing Pacquin v. Pacquin, 125 Vt. 243, 249, 214 A.2d 90. Some evidence, because it is not only critically relevant, but also is uncontroverted and of undeniable credibility, requires recognition on findings as a matter of law. Id., citing Gramation National Bank & Trust Co. v. Beecher, 121 Vt. 39, 47-48, 146 A.2d 246.
It is well established law that findings of fact must stand if there is any credible evidence fairly and reasonably supporting them. Crawford v. Lumbermen's Mutual Casualty Co., 126 Vt. 12, 16, 220 A.2d 480. Although this court has the power to set aside a finding of the lower court, we will not do so where the evidence is in conflict, merely because the evidence preponderates against it. Little v. Little 124 Vt. 178, 182, 200 A.2d 276. Intervention on appeal is justified only when contrary proof so predominates the controversy that the record establishes no reasonable basis upon which the finding can stand. Crawford v. Lumbermen's Mutual Casualty Co., supra. And it follows that if it appears from a review of the record that there is no evidence to support the court's findings they may be set aside.
A careful review of the record and study of the exhibits leaves us to conclude that the finding as to the lot lines is error. We find no reasonable basis in the evidence to support a lot having the boundaries determined by the finding and none has been pointed out to us by the plaintiffs.
The first mentioned deed to the defendants' predecessor back in the 1920's, as well as all subsequent deeds, embraced the land in controversy. The actual and constructive possession and use of the lot and rights of way therein described was continued by the successive grantees and inured to the benefit of the defendants and was available to them in the establishment of their title by adverse possession. Hassam v. J. E. Safford Lumber Co., 82 Vt. 444, 450, 74 A. 197. Mr. Scott built the camp in 1921 or 1922 and shortly thereafter was given a deed of the land in that area and rights of way. He, as well as the later grantees, entered into possession of the premises. These facts give character to their acts and show acts of ownership. It is presumed that they entered and claimed in their own right and not as a trespasser. McGrady v. Miller, 14 Vt. 128.
The evidence discloses other facts uncontradicted by the plaintiffs. The camp is located about 75 feet westerly from the west shore of the pond on a steep bank overlooking the pond to the east. The area in the vicinity of the camp is open, unenclosed land with a growth of brush, saplings and small trees. The camp has been used and occupied principally as a hunting and fishing camp.
Hinkum Pond is reached by a dirt road referred to as the 'Ramp road.' This road approaches to within about 100 feet from the camp, then turns southerly and continues to other lands and around part of the pond. At the point where the Ramp road is nearest to the camp, it is intersected by a roadway which leads northwesterly direct from a dock on shore of the pond and a 10-inch elm tree close to the shoreline. There is a steel cable around the elm which extends southerly 18 feet along the shoreline to and around a 14-inch oak tree. Boats were tied up to this cable by Michael C. Mulcahy who possessed the property from 1927 to 1941 under a deed from Walter F. Scott. This roadway from the dock to its intersection with the Ramp road was used by Mr. Mulcahy to put boats on the pond. It has also been used at times by the defendants ...
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Roy v. Woodstock Cmty. Trust, Inc.
...the prescriptive period has run, the adverse possessor acquires title “as perfect as acquisition by grant.” Montgomery v. Branon, 127 Vt. 83, 89–90, 238 A.2d 650, 655 (1968). Thus, an adverse possession claim is really one for recognition of title and enforcement of the rights that accompan......
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Roy v. Woodstock Cmty. Trust, Inc.
...period has run, the adverse possessor acquires title "as perfect as acquisition by grant." Montgomery v. Branon, 127 Vt. 89, 89-90, 238 A.2d 650, 655 (1968). Thus, an adverse possession claim is really one for recognition of title and enforcement of the rights that accompany title. Unless r......
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Russell v. Pare
...a no trespassing sign with the Seymour Lodge name on the disputed parcel. This fact situation is similar to that in Montgomery v. Branon, 127 Vt. 83, 238 A.2d 650 (1968), in that the use by the owners of Seymour Lodge can be inferred from the location of the Lodge and the purpose for which ......
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NAS Holdings, Inc. v. Pafundi
...for determination is the fixation of the boundary lines of the lot to which the [claimants] are entitled. Montgomery v. Branon, 127 Vt. 83, 89-90, 238 A.2d 650, 654-55 (1968). In this case, the statutory period passed entirely under Rising & Nelson's watch. Rising & Nelson never transgresse......