Morse v. Murphy

• Decision Date: 19 July 1991
• Docket Number: No. 89-456,89-456
• Citation: 599 A.2d 1367,157 Vt. 410
• Court: Vermont Supreme Court
• Parties: Stephen F. MORSE and Robert R. Cote and Joyce E. Morse v. Michael J. MURPHY.

Page 1367

599 A.2d 1367

157 Vt. 410

Stephen F. MORSE and Robert R. Cote and Joyce E. Morse v. Michael J. MURPHY.

No. 89-456.

Supreme Court of Vermont.

July 19, 1991.

Motion for Reargument Denied Oct. 4, 1991.

David C. Drew and H. Zachary Rhodes of Drew & Rhodes, Lyndon Center, for plaintiffs-appellees.

Liam L. Murphy of Langrock Sperry Parker & Wool, Burlington, for defendant-appellant.

Before GIBSON, DOOLEY and MORSE, JJ., and PECK, J. (Ret.) and MARTIN, Superior Judge, Specially Assigned.

ENTRY ORDER

The controversy in this case focuses on the width of a right-of-way held by plaintiffs across property owned by defendant in the town of Lyndon. Defendant appeals from the trial court's judgment holding that the plaintiffs' right-of-way is fifty feet wide. We affirm.

The record facts are simple. In 1974, adjoining landowners, Morse and Bailey, exchanged deeds the purpose of which was to create rights-of-way over their respective properties. The rights-of-way connected and formed one continuous road.

The Morse to Bailey deed dated July 8, 1974, conveyed "a fifty foot wide strip of land" on which Bailey was to build a road and over which Morse reserved a right-of-way. Four months later, Bailey deeded to Morse "the right to cross and recross a certain parcel of land over an existing roadway," but did not mention the width of the right-of-way or the parcel of land. Both deeds, however, contemplated that the strips of land over which the rights-of-way pass might be conveyed by Bailey to the Town of Lyndon "as a public highway."

Thus, the parties created a road over a strip of land the fee to which remained in Bailey. The strip of land (the sum of the two strips of land described in the two deeds) might be deeded to the town at some indeterminate time in the future.

Holding that the deeds created an ambiguity as to the width of the right-of-way in dispute, the trial court allowed Bailey to testify that the parties intended to exchange rights-of-way fifty feet wide "so a substantial road could be put in." Whether, as a matter of law, there was an ambiguity is debatable. Even absent Bailey's testimony, the facts and circumstances support a conclusion that all of the right-of-way was intended to be fifty feet wide.

The deed to Bailey described the strip of land conveyed as fifty feet wide. It anticipated that this strip of land might be conveyed to Lyndon. The deed from Bailey described the right-of-way without mentioning its width, but stated that the underlying "strip of land" may be conveyed to Lyndon. If Lyndon were to be conveyed a fifty-foot-wide strip for part of the road it is reasonable to assume that it would receive fifty feet for the other part. The right-of-way for public highways is ordinarily three rods (fifty feet) wide. 19 V.S.A. § 702. Therefore, a conclusion that Morse and Bailey intended to create a road that was to be over a fifty-foot right-of-way in part and then funnel down to a narrower right-of-way is an irrational and strained view of the deeds.

If, on the other hand, an ambiguity was present, the court properly relied on extrinsic evidence of the parties' intentions to resolve it. See Fassler v. Okemo Mountain, Inc., 148 Vt. 538, 541, 536 A.2d 930, 931 (1987) (where meaning of deed unambiguous, extrinsic evidence of parties' intentions unnecessary); Braun v. Humiston, 140 Vt. 302, 307, 437 A.2d 1388, 1390 (1981) (where deed not clear additional evidence admissible).

The trial court also found as follows:

Defendant Murphy was on notice that his property was subject to an easement that was ambiguously defined in the deed. He was on notice to inquire and look further to determine the extent of the encumbrance. He did not do so and cannot now obtain the relief and injunctions he now seeks.

Defendant never asked Bailey the width of the right-of-way; consequently, this finding is not clearly erroneous. See Page v. Lyle H. Hall, Inc., 125 Vt. 275, 276, 279, 214 A.2d 459, 461, 463 (1965) (ambiguous language in deed a warning to third parties).

Affirmed.

GIBSON, Justice, dissenting.

The majority holds alternatively that (1) if the October 8, 1974 deed from James Bailey to Stephen and Joyce Morse is unambiguous, it conveyed a fifty-foot right-of-way, and (2) if the deed is ambiguous, the trial court correctly relied on extrinsic evidence to resolve the ambiguity. The first alternative ignores express language of the deed, which limits the right-of-way to the "existing roadway," and the second alternative ignores the fact that when defendant, a subsequent, bona fide purchaser for value, did inquire about the right-of-way, he was given misleading information. I, therefore, respectfully dissent.

I.

The majority first presupposes the deed to be unambiguous. On October 8, 1974, defendant's predecessor in title, James T. Bailey, granted plaintiffs Stephen Morse, Sr. and Joyce Morse "the right to cross and recross a certain parcel of land over an existing roadway." (Emphasis added.) Although a deed executed three months earlier by the same parties granted Mr. Bailey a fifty-foot-wide strip of land through the Morse property, the deed that is in dispute made no corresponding attempt to spell out the width of the right-of-way contained therein. At the time of the conveyance, the Morses were using the "existing roadway" as a means for their farm vehicles to obtain access to their hayfields.

As the Supreme Court of Virginia has explained:

Where no width is expressed in the instrument creating a new right of way, the determination of width is made by reference to the intention of the parties to the grant, as determined by the circumstances existing at the time and affecting the property. If the object of the right of way is expressed, then the dimensions of the way are such as to be "reasonably sufficient for the accomplishment of that object." When, however, an instrument refers to and grants a right of way over an already existing road, the right of way is limited to the width of the road as it existed at the time of the grant.

Waskey v. Lewis, 224 Va. 206, 211, 294 S.E.2d 879, 881 (1982) (emphasis added) (citations omitted) (quoting Hamlin v. Pandapas, 197 Va. 659, 664, 90 S.E.2d 829, 834 (1956)); see also Annot., Width of Way Created by Express Grant, Reservation, or Exception Not Specifying Width, 28 A.L.R.2d 253, 267-68 (1953) ("Usually if the instrument granting or reserving a right of way makes reference to a way existing at the place contemplated, and especially if the right expressly given is to use that way and it is well defined, there is little ground for the contention that the intended width was other than that of the existing way.") (collecting cases).

In the instant case, the trial court found that, at the time of conveyance, the travelled portion of the roadway was ten to twelve feet wide but that necessary ditching and lateral supports required a total width of thirty-five to forty feet for the road as it then existed. The majority transforms the "existing roadway" into a fifty-foot right-of-way--the width required by statute for a public highway--by focusing on that portion of the deed providing for the possible future grant to the town of the "strip of land over which said right of way passes." Whether such a conveyance would ever be made, however, is entirely speculative. Under the terms of the deed, that decision vested solely in the discretion of Mr. Bailey as owner of the property in question.

The majority reasons that "a conclusion that Morse and Bailey intended to create a road that was to be over a fifty-foot right-of-way in part and then funnel down to a narrower right-of-way is an irrational and strained view of the deeds." It is not irrational, however, for a property owner to retain control over the width of a right-of-way passing over his or her property, reserving decision as to when and if to convey to the town a strip of land of sufficient width to accommodate a public highway. Further, the parties knew how to include a specified width in the description, had they wanted to do so, since they had done that very thing just three months earlier.

This transaction was the conveyance of an easement that was not a public highway, by a private party to a private party. Plaintiffs do not argue that the right-of-way was in the process of becoming a town highway or that the deed required that it become a town highway. Under the deed, the grantor was in a position to add whatever width might have been needed in order to...