Murphey v. Lincoln
| Decision Date | 27 July 1891 |
| Citation | 22 A. 418,63 Vt. 278 |
| Parties | PATRICK MURPHY v. WM. F. LINCOLN, ET AL |
| Court | Vermont Supreme Court |
Bill in chancery to enjoin the defendants from commission of certain trespasses upon the lands of the orator. Heard upon bill, answer and master's report, at the September term 1891. Taft, chancellor, dismissed the bill pro forma. The orator appeals. The opinion states the case.
The pro forma decree is reversed and cause remanded with directions to enter a decree for the orator in accordance with mandate on file.
Ormsbee & Briggs and J. C. Baker, for the orator.
OPINIONThe 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 land 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 Pomroy 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 on Injunc. 702. Wood Nuis. (2d Ed.) § 789.
A Court of Equity has general jurisdiction of the subject matter charged in the bill. The defendant's 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; Waterman v. Buck, 63 Vt. 544, 22 A. 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 elsewhere; and it further appears that there was no evidence before the masters of any reservation of any right of way to this lot at the time the estate was divided. It is also found that there was no bridge nor road by which the way, by the route claimed,...
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