Murphey v. Lincoln

Decision Date27 July 1891
Citation22 A. 418,63 Vt. 278
PartiesMURPHEY v. LINCOLN et al.
CourtVermont Supreme Court

Appeal in chancery from Rutland county; R. S. Taft, Chancellor.

Bill in chancery by Patrick Murphey against William F. Lincoln and others to enjoin a trespass. There was a pro forma decree dismissing the bill, and the orator appeals. Reversed.

Ormsbee & Briggs and J. C. Baker, for the orator.

Geo. M. Fuller, for defendants.

THOMPSON, J. 1. The defendants contend that this case is not within the jurisdiction of a court of equity, for the reason that the orator has an adequate remedy at law. The bill charges the committing of several continuous trespasses by defendants by drawing wood and logs from their land across the pasture and meadow laud of the orator, and that the defendants threaten to continue to commit these trespasses. The defendants, in their answer, either expressly or tacitly, by their failure to deny them, admit the truth of these allegations. They also claim a right of way across the orator's land to that part of the propagation lot owned by them by the route traveled when they committed the alleged trespasses. These facts bring the case within the jurisdiction of a court of equity. The rule applicable to cases of this kind is stated in 3 Pom. Eq. Jur. § 1357, as follows: "If the trespass is continuous in its nature, if repeated acts of wrong are done or threatened, although each of these acts taken by itself may not be destructive, and the legal remedy may, therefore, be adequate for each single act if it stood alone, then also the entire Wrong will be prevented or stopped by injunction on the ground of avoiding a repetition of similar actions." The use of this way across the orator's land by defendants under a claim of right, if continued long enough would ripen into an easement. Equity will interfere to enjoin such wrongful acts, continued or threatened to be continued, to prevent the acquisition of an easement, in such a manner. 1 High, lnj. 702; Wood, Nuis. (2d Ed.) § 789. A court of equity has general jurisdiction of the subject-matter charged in the bill. The defendants' demurrer in their answer raising the question of jurisdiction is based upon facts apparent upon the face of the bill. By not bringing the demurrer to a hearing before the trial of the case upon its merits the defendants waived their rights to be heard, or to stand on their demurrer. Holt v. Daniels, 61 Vt. 89, 17 Atl. Rep. 786; Waterman v. Buck, 63 Vt. —, 22 Atl. Rep. 15.

2. The defendants base their claim to a right of way by the route they were traveling at the time they were enjoined in this suit upon the fact that at the decease of Silas Churchill, in 1825, he was the owner of the orator's farm and the propagation lot, and that his estate then passed to his widow and heirs, and in that way the title to the propagation lot, of which the defendants now own a part, became vested in different persons. When Silas Churchill's estate was divided among his widow and heirs there was no road over any part of the route claimed by the defendants to the propagation lot or...

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