Neill v. Ward

• Decision Date: 05 November 1930
• Citation: 153 A. 219
• Parties: NEILL v. WARD.
• Court: Vermont Supreme Court

153 A. 219

NEILL

v. WARD.

Supreme Court of Vermont. Washington.

Nov. 5, 1930.

On Reargument and Remand Jan. 7, 1931.

Acting under Act Nov. 7, 1804, authorizing proprietors at legal meeting to ratify and confirm division of town, it was claimed that, when proprietors ratified and confirmed new draft of October 6 and 8, 1804, at adjourned meeting held November 26, 1804, they exhausted their authority, but adjourned meetings were but continuations of the same meeting without any loss or accumulation of powers.

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Exceptions from Washington County Court; Alfred L. Sherman, Judge.

Action by J. P. Neill against Burton S. Ward. Verdict for plaintiff, and defendant brings exceptions.

Reversed and rendered.

Argued before POWERS, C. J., and SLACK, MOULTON, and THOMPSON, JJ., and GRAHAM, Superior Judge.

F. L. Laird and H. C. Shurtleff, both of Montpelier, for plaintiff.

John W. Gordon, of Barre, and Theriault & Hunt, of Montpelier, for defendant.

THOMPSON, J.

This is an action brought under G. L. 6956, for alleged trespass and cutting standing timber on plaintiff's close described as lot 59 in the first division of lots in the town of Moretown. The defendant admitted entering the land in dispute and cutting standing timber thereon, but claimed title in himself both to the land and timber.

There was a trial by jury and a general and special verdict for the plaintiff. The defendant took exceptions during the trial to the admission and exclusion of evidence and to the court's charge to the jury, and, after verdict and before judgment, moved that the verdicts be set aside and judgment rendered for the defendant. The motion was denied, to which denial the defendant took, and was allowed, an exception.

The real controversy is over the location of the boundary line between said lot 59 and lot 60 in said first division of lots which is owned by the defendant.

Moretown, as shown by the original town plan, is bounded on the southeast by the town of Berlin, on the northeast by the Winooski river, on the northwest by Duxbury, and on the southwest by Waitsfield, but now by Waitsfield and Northfield. There are three main divisions of lots extending northwesterly from the Berlin town line to the Duxbury town line. Starting at the town lines of Waitsfield and Northfield, and extending northeasterly, the divisions of lots are second, first, and third. The second division contains four tiers of lots, the first and third divisions, three tiers each. There are seventeen lots in each tier.

The range lines start at the Berlin town line, and extend north 47 degrees west to the Duxbury town line. The lot lines start at the Waitsfield and Northfield town lines, and extend north 28 degrees east through the tiers of lots of the three divisions. It was conceded at the trial that,' as the divisions of lots were originally laid out, with the exception of the river lots hereinafter mentioned, the range lines are straight lines parallel with each other, and the lot lines are straight lines parallel with each other. It appears from the town plan and the field book, hereinafter mentioned, that, measuring on the range lines, all of the lots of the three divisions are each 116 rods wide. Measuring on the lot lines, the length of the lots vary. The lots of the first division are each 141 rods long; those of the second division are each 160 rods long; and those of the third division are each 162 rods long. Between the northeasterly boundary of the third tier of lots of the third division and the Winooski river there are a number of lots of various dimensions called "river lots," and divided into first, second, and third division lots. The only lot line that extends unbroken from the Waitsfield or Northfield town lines to the Winooski river is the lot line that runs between lots 59 and 60 of the first division.

When lots are hereinafter referred to without stating the division they are in, first division lots are indicated. When other lots are referred to, the division they are in is given.

The plaintiff owns what is called the Herring farm, which consists of lots 57, 58, and 59. Abijah Herring, the original owner of the Herring farm, purchased lot 58 October 16, 1847. The description in his deed is: "Lot number fifty-eight (58) in the first division of lands in said town drawn to the original right of Ebenezer Brown." He purchased lot 57 September 21, 1863. The description in his deed is: "Lot number fifty-seven (57) In the first division of lands in s'd Moretown drawn to the right of James Wallace and commonly called the Spafford lot, and adjoining the farm of sd Herring." He purchased lot 59 October 23, 1865. The description in his deed is: "Lot number 59 in the first division of lots in said town drawn to the original right of Lemuel Abbott, estimated to contain 116 acres of land more or less." All of said deeds are warranty deeds. Certified copies of other deeds were received in evidence showing a title of record of lot 59 back to March 1, 1841.

Abijah Herring owned and occupied the Herring farm until January 9, 1907. On that day, by conditional deed, he conveyed his farm to Julius E. Martin, describing it as "being my home farm where I now live in Moretown, and being lots 57, 58 and 59 in the first division lots of land in said Moretown." The several subsequent conveyances of this property in the plaintiff's chain of title describe it as "the Abijah Herring Farm," and refer to previous deeds and the records "for a more particular description of said premises." The plaintiff purchased "the Abijah Herring farm" January 13, 1921, and has since lived on and occupied the same. The marks indicating the lines between the lots forming the Herring farm are mostly obliterated now, as no attempt has been made to preserve them, but in some places they are still visible.

A. O. Cummins, by his warranty deed dated November 29, 1882, conveyed lot 60, commonly known and referred to at the trial below as the Cummins lot or the Brown lot, to Joseph M. Brown and Charles J. Brown. Said lot is described in said deed as "being all of the first Division lot in said Moretown drawn to the original right of Nathaniel Barrel." Reference is made in said deed to prior conveyances which show a title of record to said lot to 1830. Charles J. Brown was the son of Joseph M. Brown. Joseph M. Brown died in 1899, and Charles J. was his only heir. Charles J. Brown, by his warranty deed dated March 28, 1912, conveyed said lot 60 to his son, Leo F. Brown, and, on July 9, 1924, Leo F. Brown, by his warranty deed, conveyed the same to the defendant. The plaintiff conceded at the trial below that the defendant is the owner of lot 60.

The plaintiff claims that the dividing line between lots 59 and 60 is a little over 1,000 feet, or about a half a lot, northwest of where the defendant claims that such dividing line is located.

Before taking up the defendant's motion to set the verdicts aside, we will consider the defendant's exceptions to the admission in evidence of the field book, the town plan, and the original grant of the town of Moretown.

Lot 60 and the lots forming the Herring farm are in the third tier of lots in the first division. In laying out the lots, as shown by the town plan and the field book, this tier of lots starts at the Berlin town line with lot 53 and ends with lot 69 at the Duxbury town line. Lot 53 is described in the field book as follows: "Lot 53, Begins at a maple in the E. line of the town being the N. E. corner of No. 52; thence N 47° W 116r to a spruce; thence N 28° E. 144r to a beech: thence S 47° E 116r to a hemlock in the Town line; thence S 28° W 144r to the first bound."

Lot 54 begins at the southwest corner of lot 53 and each subsequent lot begins at the southwest corner of the preceding lot. The courses and distances of the lines of the other lots are the same as those of lot 53, and a named tree is at each corner.

The plaintiff bases his case on the field book and town plan on the theory that the lines and dimensions of the lots of the third tier, as actually laid out on the ground, are substantially the same as described in the field book. In his opening statement to the jury, counsel for the plaintiff, after describing the layout of the lots, said: "So that in getting at the location of the lot lines according to the land records (meaning the field book) we begin at the east on the Berlin town line and count off the lots until we get up through 60, the last one beginning where the previous one ended, according to the land records." After stating that the defendant commenced cutting timber on lot 59 in the latter part of 1928, he further said: "Mr. Neill immediately procured the services of an engineer to go up there and survey the lot for him. He went up there, this engineer did, and found lot lines substantially as I have told you already."

The defendant claims that lot 60, as occupied by himself and his predecessors in title for more than fifteen years, has old corners and lines marked upon the ground, and that during that time they maintained exclusive possession up to the dividing line as claimed by him. He further claims that the lines and corners of the lots comprising the Herring farm, as marked upon the ground, are not substantially the same as described in the field book; that lot 58, as located on the ground, is not a full lot, as described in the field book, but substantially a half lot.

The plaintiff, after introducing in evidence certified copies of deeds of his title of record, and a title of record of lot 59 back to 1841, offered in evidence the town plan and certain parts of a book labeled "The Proprietors' First Book of Record and the Field Book of Moretown." This book and the town plan came from the office of the town clerk of Moretown, and no question is raised as to their authenticity and genuineness.

It appears from the proprietors' records contained in said book that it was...