Newfound Management Corporation v. Sewer, Civil No. 91-315 (D. V.I. 1/19/1999)
| Decision Date | 19 January 1999 |
| Docket Number | Civil No. 91-315. |
| Parties | NEWFOUND MANAGEMENT CORPORATION, GENERAL PARTNER OF NEWFOUND LIMITED PARTNERSHIP, Plaintiff, v. IRVIN A. SEWER, CEDRIC LEWIS, LUCINDA ANTHONY, EARLE SEWER, VIOLET SEWER, JASMINE SEWER, LOREL SEWER, JUDITH CALLWOOD, LEON CALLWOOD, LORNE CALLWOOD, and PERSONS UNKNOWN WHO HAVE ATTEMPTED TO OBSTRUCT CONSTRUCTION WORK ON PLAINTIFF'S LAND, Defendants. |
| Court | U.S. District Court — Virgin Islands |
ALAN GARBER, ESQ., CLAIR A. CARLSON, JR., ESQ., Mason & Martin, Boston, MA, Attorneys for Plaintiff Newfound Management Corporation.
ROBERT L. KING, ESQ., St. Thomas, VI, Attorney for Plaintiff Newfound Management Corporation.
GEORGE MARSHAL MILLER, ESQ., St. Thomas, U.S. Virgin Islands, Attorney for Defendant, Irvin A. Sewer.
MARIO BRYAN, ESQ. St. Thomas, U.S.V.I., Attorney for Cedrick Lewis, Administrator the Estate of Bernard Williams.
BENJAMIN A. CURRENCE, ESQ., St. Thomas, U.S.V.I., Attorney for Cedric Lewis.
I. INTRODUCTION
A complete discussion of the background of this case is set forth in Newfound Management Corporation, General Partner of Newfound Limited Partnership v. Sewer, et al., 885 F.Supp. 727 (D.V.I. 1995) (the "1995 Opinion") and should be referred to where relevant.
The underlying issues concerning the boundaries and title to various parcels of property on the East End including the quieting of title of Parcel 6p and Parcel 7a, Estate Hansen Bay, East End Quarter, St. John, U.S. Virgin Islands, were tried to the bench pursuant to V.I. Code Ann. tit. 28 § 372 from October 3 to October 5, 1994.1 The remaining issues included actions in trespass, libel, slander, slander of title, intentional interference with business relations and permanent injunction which were reserved for jury trial once a determination was made by the Court as to boundaries and title. On March 27, 1995, this Court rendered its decision regarding the disputed land. However, as to Parcels 6p and 7a, the Court could not determine the boundaries, and therefore directed that a survey be obtained of these parcels. See 1995 Opinion at 771-772. The Defendants appealed this decision to the Third Circuit.
While the Defendants appeal was still pending in June of 1996, the parties, pursuant to a settlement agreement, provided that in the event the Third Circuit affirmed this Court's decision and order of March 27, 1995, the plaintiff would withdraw its tort claims against the defendants and the defendants would relinquish to the plaintiff their ownership interest in parcels 6f and 6p. Deeds for 6p and 6f were placed in escrow with an appropriate release of the reserved claims. It was also agreed that the preliminary injunction that was entered in September of 1991 would be continued until modified by the Court. On October 3, 1996 in accordance with the agreement, this Court ordered a Certification of Final Judgment pursuant to Fed. R. Civ. P. 54(b) of the March 27, 1995 Order.
After a careful, detailed review of the entire record, including expert testimony, exhibits presented by the parties, and argument of all counsel and defendants Sewer and Lewis individually, the Court enters the following findings of fact and conclusions of law pursuant to Rule 52(a) of the Federal Rules of Civil Procedure.
1. Harry Gauriloff ("Gauriloff") is a registered land surveyor in St. Thomas, United States Virgin Islands, experienced in surveying land on the East End of St. John. He has been a land surveyor for approximately 15 years and has been a licensed surveyor in the Virgin Islands for the past 8 years. See Hearing on Motions dated November 5, 1998 ("Hearing on Motions"), Tr. 8.13 — 10.2. He commenced his employment with Marvin Berning ("Berning") in 1991, working with him for four years before Berning retired. Berning had nearly thirty years of experience, surveying the East End of Saint John. See 1995 Opinion at 752. At Berning's retirement in August 1995, Gauriloff purchased Berning's business, including all of its records and has continued to operate the company under the name Marvin Berning and Associates. See Hearing on Motions, Tr. 10.3 — 10.18.
2. Gauriloff traveled to the East End of St. John on five (5) occasions in 1998, spending approximately 40 hours on site to survey the boundaries of Parcels 6p4 and 7a. He was assisted in the survey of these parcels by his field crew which spent additional time on site. Gauriloff also spent approximately 40 hours in his office preparing the survey map of these parcels. See Hearing on Motions, Tr. 11.9 — 13.4.
3. The Gauriloff survey of Parcels 6p and 7a, is dated July 11, 1998 and is designated as a survey of Parcels 6p REM., 7a & 7c, Estate of Hansen Bay A, East End Quarter, St. John, U.S.V.I. See Exhibit 15.
4. Defendants submitted no surveys of their own, nor did they produce any expert to testify to refute the Gauriloff survey, identified as Exhibit 1.
1. The northern boundary of Parcel 6p is also the southern boundary of Parcel 6f as shown on Public Survey No. G9-1668-T70 (Exhibit 1726 *). The northern boundary of Parcel 6p is in accordance with Public Survey No. G9-1668-T70 (Exhibit 172*). See Exhibit 1 and Hearing on Motions, Tr. 19.5-19.18.
2. Traveling counterclockwise on Exhibit 1, the northwestern boundary of Parcel 6p runs along the mean high water line of Long Bay to Point A, established at south 45 degrees, 45 minutes, 50 seconds west7, of the George-Sewer Line (the "George-Sewer Line") as set forth in Exhibit 1. See Exhibit 1 and Hearing on Motions, Tr. 19.20-19.24.
3. The southwestern boundary of Parcel 6p forms the newly created A-B portion of the George-Sewer Line.8 This segment was located through fence lines and bound posts which follow the ridge line toward the sea and honors the boundaries of the existing subdivision in Parcel 7B Water Rock specifically Parcels 3-1, 3-6, 3-19, 3-13, 3-12, and 3-14 as indicated in the 1995 Opinion. See 1995 Opinion at 771-2. It also honors the boundaries of Parcel 6p-1 which are shown on Public Survey NO. D9-5293-T92 (Exhibit 41*) as being established by adverse possession in the Eric Christian litigation (District Court of the Virgin Islands Probate No. 398/1980). See Exhibit 1 and Hearing on Motions, Tr. 20.4-20.20; 21.15-21.23.
4. The southern boundary of Parcel 6p follows a portion of the George-Sewer Line running from Point B towards Point C as determined in the 1995 Opinion. See 1995 Opinion at 754-5. See Hearing on Motions, Tr. 22.2.-22.5. The southern boundary of Parcel 6p is also the northern boundary of Parcel 7a. It also follows old fence lines and the ridge line. See Exhibit 1 and Hearing on Motions, Tr. 22.9-22.18.
5. The eastern boundary of Parcel 6p follows fence lines running northward up to a tamarind tree, which forms the southeasterly corner of Parcel 6f. The fence line is determined to be the boundary line and is consistent with an unrecorded survey performed for an unrelated party with respect to a parcel of land located to the east of Parcel 6p which is identified on Exhibit 1 as "A Portion of Remainder 6A #6 Estate Hansen Bay A." See Exhibit 1 and Hearing on Motions, Tr. 22.6 — 22.14.
6. Parcel 6p consists of 7.01 acres of land, as shown on Exhibit 1, designated as
1. The northern boundary of Parcel 7a is the southern boundary of Parcel 6p and runs along an old fence line and ridge line. The northern boundary follows a portion of the George-Sewer Line running from Point B towards Point C as set forth in Exhibit 1, consistent with the 1995 Opinion. See Exhibit 1 and 1995 Opinion at 754-5.
2. Running counterclockwise on Exhibit 1, the northwestern boundary of Parcel 7a begins at Point B and runs to the sea. This boundary accounts for Floyd George's southeastern boundary of Parcel No. 3 and does not disturb the boundaries of Parcels 3-14, 3-15, 3-20 and REM PCL #3 in Parcel 7B, Water Rock. See 1995 Opinion at 117. The boundary line initially runs from Point B following a ridge line to the southwest where old pieces of fence were located. The boundary line then diverges and follows the bound posts set for Parcel 3. The northwestern boundary of Parcel 7a has been located and surveyed consistent with the 1995 Opinion. See 1995 Opinion at 744-5; Exhibit 1; and Hearing on Motions, Tr. 22.21-23.15.
3. The western boundary of Parcel 7a was located as following the shoreline of Pond Bay. See Exhibit 1 and Hearing on Motions, Tr. 23.16-24.1.
4. The southern boundary of Parcel 7a splits Southside Pond in half. Property north of...
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