Murray v. Webster

Decision Date07 November 1962
Docket NumberNo. 1938,1938
Citation186 A.2d 89,123 Vt. 194
CourtVermont Supreme Court
PartiesL. Russell MURRAY and Claire Murray v. Rudolph WEBSTER and Dorothy Webster.

Richard E. Davis and Stephen B. Martin, Barre, for plaintiff.

Monti, Eldredge, Calhoun & Free, Barre, for defendant.

Before HULBURD, C. J., and HOLDEN, SHANGRAW, BARNEY and SMITH, JJ.

HOLDEN, Justice.

This is an action of ejectment. The land in dispute is situated in the community of South Barre. It is on the site of an abandoned highway known as Railroad Depot Street. This street extended to the west at right angles from the Barre-Williamstown road and served to connect that highway with the facilities of the Montpelier & White River Railroad. The railroad right of way extended in a generally north and south line, parallel to the Barre-Williamstown highway. Railroad Depot Street formed a cross line between the railroad and the highway in the fashion of the horizontal line of the letter H. The plaintiffs are the owners of the fee immediately to the north of the street which lies between the old railroad bed and the Barre-Williamstown highway.

Apparently Railroad Depot Street had not been used for public travel for an extended period of time prior to this litigation, for it came about that a building was erected on that portion which lies north of the centerline of the street. The findings of the trial court report this structure is wooden and its dimensions are fifteen by twenty-three feet. It was formerly used as a public library and later as a filling station. It was owned by Mattie W. Gorman.

Prior to October 14, 1957 the building was unoccupied. The defendants moved into the property on that date. It is also reported in the findings that three days later, on October 17, 1957 the defendants obtained written permission from the selectmen of Barre to occupy the premises until June 20, 1958, for the purpose of repairing, maintaining and bracing the building, and preparing it for moving. The defendants did not quit their occupancy of the premises on June 20, 1958, as agreed, but remained in possession to the time of this trial. In June 1959, the defendants received a bill of sale of the filling station building from Mattie W. Gorman, although the instrument was not recorded until April 25, 1960.

On November 19, 1959, the selectmen of Barre, acting under the statutory authority contained in 19 V.S.A. § 535 formally discontinued Railroad Depot Street as a public highway. They set out the lands which comprised the discontinued highway to the plaintiffs as adjoining owners on the north. The land south of the centerline of the street was set out to Helge and Doris Carlson as the owners adjoining the street on the south.

After the discontinuance proceedings were ended, the defendants obtained a warranty deed of the property from Mattie W. Gorman. The instrument is dated May 29, 1961.

On these facts the trial court entered judgment for the plaintiffs. The defendants appeal. The principal and controlling question is the validity of the discontinuance proceedings and the order of the selectmen that followed. It is on this action by the town that the strength of the plaintiffs' title depends.

Since this is the determining factor, the trial court should have set forth the official report of the selectmen's proceedings in the findings, rather than merely incorporating it by reference. See Peerless Casualty Company v. Cole, 121 Vt. 258, 261, 155 A.2d 866; Enosburg Falls v. Hartford Steam Boiler Inspection and Insurance Co., 117 Vt. 114, 117, 85 A.2d 577. However, the findings must stand if there is any evidence fairly and reasonably tending to support them. 12 V.S.A. § 2385; Bressette v. Knapp, 121 Vt. 376, 378, 159 A.2d 329; Appliance Acceptance Company v. Stevens, 121 Vt. 484, 488, 120 A.2d 888. This calls upon us to relate the record of the action taken, to the statute which confers the authority to discontinue the established highways of a town.

The applicable provisions are found in 19 V.S.A. §§ 531 and 535. 'The selectmen may discontinue a highway or bridge wholly within the town unless it shall be made to appear that the same was originally laid out under authority of the county or supreme court. The selectmen, before discontinuing a highway or bridge, shall appoint a time for examining the premises and hearing parties interested. They shall give notice thereof by posting notice in two or more public places in the town of the time and place of such hearing and shall give at least twelve days' notice in writing of the time and place of such hearing to all persons owning or interested in land abutting such highway or bridge, such notice to be by registered mail to the last known address of such person. * * *' 19 V.S.A. § 531.

Railroad Depot Street was originally laid out by the selectmen of Barre as a town highway, in September 1888. It appears to lie wholly within the town of Barre. It 'was opened for travel at South Barre' for the purpose of providing access from the existing highway to and from the station on the Montpelier & White River Railroad.

The town record of 'The Selectmen's Report on the Discontinuance of Railroad Depot Street Located at South Barre' was received as an exhibit in the case. It establishes that the hour of eleven in the forenoon of November 6, 1959, was appointed for examining the premises and hearing persons interested and considering claims for damages, if any. It appears the selectmen examined the town land records and made further inquiry to ascertain the persons owning or interested in lands abutting Railroad Depot Street. They found the plaintiffs Murray, Helge and Doris Carlson, Wallace and Euna Persons and the Peoples National Bank of Barre 'were the only persons so owning or interested.' On October 23, 1959 the selectmen posted notice of the hearing in the town clerk's office and on the bulletin board in the United States Post Office at South Barre. And they caused the notice of hearing to be published on October 24, 1959 in the TIMES-ARGUS, a local newspaper having general circulation in the town.

The record shows that the selectmen met according to the appointment of their notice, examined the premises and heard the parties interested. It was then adjudged that the public good required the discontinuance of Railroad Depot Street as a public highway.

The selectmen made a determination of the limits of the discontinued highway and described the parcel by metes and bounds and attached a plan of the location to their report. The plan was filed with the report in the office of the town clerk.

The record also sets forth that the selectmen found the plaintiffs were the adjoining landowners on the northerly side of the discontinued highway and Helge and Doris Carlson were the adjoining owners on the south side of Railroad Depot Street. Acting under the provisions of 19 V.S.A. § 535, the northerly half of the street was ordered set over to the plaintiffs. The portion south of the center line of the highway was ordered transferred to the Carlsons.

19 V.S.A. § 535 provides: 'When a highway is discontinued, it shall be set and belong to the owners of the adjoining lands; if it is located between the lands of two different owners, it shall be set to the lots to which it...

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7 cases
  • Traders, Inc. v. Bartholomew
    • United States
    • United States State Supreme Court of Vermont
    • February 7, 1983
    ...taken by selectmen in the scope of their official duties is regular and in accordance with statutory requirements. Murray v. Webster, 123 Vt. 194, 200, 186 A.2d 89, 93 (1962). Moreover, defendants presented ample evidence that, in their discontinuance proceedings, the Benson selectmen compl......
  • Leno v. Meunier
    • United States
    • United States State Supreme Court of Vermont
    • April 6, 1965
    ...8 and to all of finding 9. Findings must stand if there is any evidence fairly and reasonably tending to support them. Murray v. Webster, 123 Vt. 194, 196, 186 A.2d 89. And we must read the evidence in support of the findings, if reasonably possible, when considered as a whole. Little v. Li......
  • State v. Page, 386-81
    • United States
    • United States State Supreme Court of Vermont
    • February 7, 1983
    ...action taken by selectmen within the scope of their official duties is regular and in accordance with statute. Murray v. Webster, 123 Vt. 194, 200, 186 A.2d 89, 93 (1962); Town of Manchester v. Town of Townshend, 110 Vt. 136, 143, 2 A.2d 207, 209 (1938). Defendant offered no other evidence ......
  • State Highway Bd. v. Jackson, 6-69
    • United States
    • United States State Supreme Court of Vermont
    • July 15, 1969
    ...if there is any evidence fairly and reasonably tending to support them. Leno v. Mennier, 125 Vt. 30, 34, 209 A.2d 485; Murray v. Webster, 123 Vt. 194, 196, 186 A.2d 89. I believe that 'any' means more than a scintilla of evidence. Appellees' evidence generates no probative value of any cons......
  • Request a trial to view additional results

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