Paradis v. Kirby, 364-79
| Citation | 138 Vt. 524,418 A.2d 863 |
| Decision Date | 28 July 1980 |
| Docket Number | No. 364-79,364-79 |
| Court | United States State Supreme Court of Vermont |
| Parties | Vincent A. PARADIS and Elizabeth Eileen S. Paradis v. Warren E. KIRBY and Eileen G. Kirby. |
Vincent A. Paradis, Essex Junction, for plaintiffs.
Karl W. Neuse, Middlebury, for defendants.
Before BARNEY, C. J., and DALEY, LARROW, BILLINGS and HILL, JJ.
This action was brought by plaintiffs, Paradis, to determine the boundary line between their property and the property of the defendants, Kirby. From a judgment favorable to the plaintiffs, defendants appeal. We affirm.
The facts found by the court disclose that in 1926 one Robert Moorby owned land on Potash Bay in Lake Champlain. On July 6 of that year he conveyed two parcels, one to William Norton and one to Belle Norton. The William Norton parcel was bounded on the west by the easterly boundary of the parcel conveyed that day to Belle Norton. It was bounded on the east by land of one Dereau, on the north by Lake Champlain and on the south by a ten-foot-wide roadway. A right of way over the roadway in common with others was also included in the conveyance. This parcel had a frontage of 368 feet along the roadway. The southwesterly corner was marked by an iron pin.
Mary Norton, the successor to William Norton, conveyed two parcels immediately west of Dereau with a total frontage along the roadway of 165 feet. Both conveyances contained the right of way over the roadway. The second conveyance, to one Milliken, contained a metes and bounds description, and the parties agree that its westerly line was fixed by those courses and distances and that that line constitutes the easterly line of the plaintiffs.
In 1938, Mary Norton sold a small triangular piece to Minnie Whittle, Hazel Payne and Hazel B. Payne, Trustee for Isabelle K. Payne. This piece was described as follows:
It being a triangular piece of land lying adjacent to property owned by Nina M. Whittie, Hazel B. Payne and Hazel B. Payne as trustee for Isabelle K. Payne: starting at an iron pin and running in a southerly direction a distance of 62 ft. 4 in. to an iron pin; thence southwesterly a distance of 24 ft. 9 in.; thence northeasterly a distance of 69 ft. 9 in., to an iron pin, and the place of beginning. This deed also conveys to the grantees the right to use a strip of land ten feet wide next southerly of the southerly line of the property herein conveyed in common with others as a driveway.
Mary Norton conveyed no other parcels prior to her death in 1941.
By administratrix's deeds the easterly one-half of the remaining property was conveyed to Charles Norton, a predecessor in title to the plaintiffs; the westerly one-half was conveyed to James McNulla, a predecessor in title to the defendants. There were no dimensions, metes, bounds or angles mentioned in either of these deeds.
In 1978 the defendants erected a stockade fence along a line which they declared to be the true boundary line between the parties. This action followed.
The parties have agreed and the court found that it was the intent of the administratrix of the Mary Norton estate to divide the remaining land area equally between Charles Norton and James McNulla. Its easterly boundary line was fixed by the Milliken westerly line, the northerly boundary was Lake Champlain, and the southerly boundary was the 10 foot wide roadway.
In dispute is the westerly boundary of the Mary Norton parcel. Three surveyors, qualified as experts, testified at the trial. The line as found by the court followed the testimony and exhibits of the plaintiffs' surveyor, Lee Lowell. This finding will be accepted unless clearly erroneous despite inconsistencies or substantial evidence to the contrary. Monet v. Merritt, 136 Vt. 261, 265, 388 A.2d 366, 368 (1978). Viewing the evidence in the light most favorable to the prevailing party, Tallarico v. Brett, 137 Vt. 52, 58, 400 A.2d 959, 963 (1979), we find a point 368 feet westerly of the southwest corner of Dereau was agreed by all the surveyors to represent the southwest corner of the William Norton property. In the deed from Moorby to Belle Norton reference was made to a large red rock as marking the northeast corner of the property conveyed to her. As the Belle Norton and William Norton conveyance had a common boundary, it follows that this rock would mark the northwest corner of the William Norton property. The westerly line would then start at the iron pin marking the southwest corner of the William Norton property and run northerly to the large red rock said to be on the shore of Lake Champlain. The plaintiffs' surveyor could not locate this rock. The court found that it had been moved by a previous owner of the defendants' property. This finding is borne out by the testimony of a previous owner of defendants' land.
Lacking the location of that particular red rock, a search of the title to the plaintiffs' property disclosed a deed from Charles Norton to one Kent, a predecessor in title to plaintiffs, dated June 1955 reciting a frontage of 101.5 feet on Lake Champlain. The search also disclosed a deed in defendants'...
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