Nelson v. Bacon

• Decision Date: 04 May 1943
• Docket Number: No. 1023.,1023.
• Parties: NELSON v. BACON et al.
• Court: Vermont Supreme Court

32 A.2d 140

NELSON

v.BACON et al.

No. 1023.

Supreme Court of Vermont.

May 4, 1943.

COPYRIGHT MATERIAL OMITTED.

Exceptions from Court of Chancery, Rutland County; Henry F. Black, Chancellor.

Suit in equity by John G. Nelson against Arthur Bacon and others to establish plaintiff's right of way through a building adjoining plaintiff's building and to enjoin obstruction thereof and interference with removal of obstructions and use of way by plaintiff and his tenants. Decree for defendants, and plaintiff brings exceptions.

Reversed and remanded.

Before MOULTON, C. J., and SHERBURNE, BUTTLES, STURTEVANT, and JEFFORDS, JJ.

Lawrence & O'Brien, of Rutland, for plaintiff.

Sidney M. Wolk, Jones & Jones, and Edward G. McClallen, all of Rutland, for defendants.

MOULTON, Chief Justice.

The plaintiff's bill of complaint alleges that he is the owner in fee of a business block on Merchants Row in the City of Rutland, and a right of way for use in connection therewith, through a passageway across the second floor of an adjoining building owned by the defendant Bravakis, upon which latter building the Rutland Trust Company holds a mortgage; that the defendant Bravakis and the defendant Bacon, her tenant, have obstructed the passageway and refuse to permit the plaintiff or his tenants to pass through it, and refuse to remove the obstructions, whereby the plaintiff is deprived of its use. The prayer is that the plaintiff be adjudged the owner of the right of way and that the defendants be enjoined from continuing the obstructions; from interfering with the removal of them; and from further obstructing or preventing the use of the passageway by the plaintiff and his tenants.

The answer of the defendant Bravakis puts the plaintiff to his proof as to his right to use the passageway; admits a refusal to remove the obstructions; recites several deeds in her chain of title in which no mention is made of the plaintiff's claimed right; and alleges that the right of way if any, has been abandoned by the plaintiff. The answer of the defendant Rutland Trust Company is the same in substance. The answer of the defendant Bacon is little more than a general denial.

After hearing and filing findings of fact the Chancellor entered a decree for the defendants, and the cause is before this Court on the plaintiff's exceptions. Since the controversy is really between the plaintiff and the defendant Bravakis, the latter will hereinafter be referred to as the defendant, as if she were the only one.

The findings of fact contain the following: the plaintiff and the defendant own adjoining buildings on the east side of Merchants Row in the City of Rutland. The plaintiff's building is situated to the south of the defendant's building. North of the defendant's building and adjoining it is another building owned by Edward McClallen, and between these is a common stairway leading from the street to the second floor of both. There is a space 3 3/4 feet wide between partitions, extending from the stairway landing, across the second floor of the defendant's building to a door which opens upon the second floor of the plaintiff's building, through which, if it were unobstructed, one could pass from the stairway through a door leading into the latter building, and it is through this space that the plaintiff claims a right of way. The Chancellor states that he is unable to find that any other space has ever been used as a passageway for this purpose.

The land upon which the McClallen, plaintiff's and defendant's buildings stand was owned by Horace G. Clark, Alanda W. Clark and Norman Clark, who erected a business block thereon. On August 12, 1857, the Clarks, by warranty deed, conveyed to George White, “his heirs and assigns, forever, to them and their own proper use and behoof,” a portion of the premises described as follows: “Beginning at the northwest corner of Artemas Pratt's lot on the east side of Merchants Row; then north in the line of Merchants Row 23 feet 8 inches to the center of the first partition from the south end of the building which we have lately erected on Merchants Row; then easterly parallel with said Pratt's north line 62 feet; then southerly in Landon's west line to said Pratt's north line; then westerly to the point of beginning *** and also the right (to be limited to the present building) to pass from the common stairway on the second floor to and from the premises above conveyed *** said passage to be at least 3 feet wide and to be next east of the center of the building ***.” The grantee in this deed, George White, is the plaintiff's predecessor in title.

On the same day the Clarks conveyed by warranty deed, to Joseph G. Foster and Israel D. Cole the premises “beginning in the east line of Merchant's Row at the northwest corner of the lot this day conveyed to George White; then north in the line of the street 22 feet 7 inches to a point opposite the center of the stairway in the building we have recently erected on Merchants Row; then east parallel with said White's north line 62 feet; then south on Landon's west line to said White's north line; then west in White's north line to the point begun at ***. We also reserve to said George White the right to pass from the common stairway on the second floor, cross the premises hereby conveyed, said passage to be at least three feet wide.” The grantees in this deed, Foster and Cole, are the defendant's predecessors in title.

Some 14 or 15 years before May 27, 1942, a toilet was installed in the northerly part of the passage leading to the plaintiff's building, by a former owner of the defendant's building. It is not a public toilet, and is used by tenants of the defendant's and McClallen's premises, who have keys to it. In the southerly end of the passage there is now a closet, opening from defendant Bacon's barber shop on the second floor of the defendant's building, and the door leading to the plaintiff's building has been blocked by shelves. No one has used the space as a passageway to the plaintiff's premises during Bacon's occupancy of the barber shop, but how long this has continued does not appear.

Between 1873 and 1926 the defendant's building was owned by John W. Stearns or John B. Stearns and from about 1890 until December, 1917, John B. Stearns also leased the second floor of the plaintiff's building, and during a part of that time used the space as a passageway. The Chancellor states that such use was by virtue of Stearns' ownership of the building, and that except for it, he is unable to find that the plaintiff, or any of his predecessors in title, have made any continuous use of the space as a passageway, for a period of 15 years.

On November 21, 1922, the plaintiff leased his building to Patrick F. Howley. The lease included “the right to use the stairway extending to the second and third stories of said building, said stairway being a part of the premises of John B. Stearns,” and provided that the lessee “agrees to use the stairway hereinbefore referred to *** at least once each year during said term in such manner as to protect the rights of the lessor in said stairway.” Howley took possession of the leased premises in October, 1924, and the lease expired on November 1, 1939. Until the installation of the toilet, above mentioned, Howley continuously used the passageway, without hindrance, but the Chancellor states that he is unable to find that this use was anything more than permissive on the part of the defendant's predecessors in title. The toilet, however, was installed with Howley's consent, and the understanding was that it should be removed upon his request. When Howley took possession under his lease the only access to the second floor of the plaintiff's building was through the passageway. In 1924 and 1925 Howley erected a stairway inside the building, and this remained until 1935, when Howley sublet the first floor to the Merrit Shoe Company. After the installation of the toilet Howley did not use the passageway, but about July 1, 1939, he attempted to open it, and was prevented from so doing. This attempt was without the knowledge of the defendant.

The Chancellor states that he is unable to find that the plaintiff's building is the same building referred to in the conveyances from the Clarks to White, and from the Clarks to Foster and Cole; that he is unable to find that any passageway was ever constructed or used in accordance with the terms of the deed from the Clarks to White; and that he is unable to determine whether the space in dispute was ever used as a passageway prior to the occupancy of the second floor of the plaintiff's building by Stearns or when the partitions forming the walls of the space were constructed, or when it was first used as a passageway. He finds that the space is not situated “next east of the center of the building” as the deed from the Clarks to White described it.

The plaintiff excepted to the failure to comply with his requested finding that the plaintiff's and defendant's blocks are the same building that was on the premises in 1857, at the time of the deeds from the Clarks to White and to Foster and Cole, on the ground that such request was supported by all the evidence and that there was no evidence to the contrary. He also excepted to the statement that the Chancellor was unable to find that this was the fact, which, of course, was equivalent to a finding that the buildings are not the same as those existing in 1857. Partridge v. Cole, 98 Vt. 373, 377, 127 A. 653; Wright v. Godin, 108 Vt. 23, 26, 182 A. 189.

An affirmative finding on this issue is vital to the plaintiff's case, for, as we have seen, the right of way granted in the deed to his predecessor in title was “limited to the present building.”

From the exhibits in the case it is clear that the block, as it stood in 1857 was in three sections with a common stairway from the street between the northerly and middle sections, with a passageway...