Parrow v. Proulx

• Decision Date: 01 October 1940
• Docket Number: 380
• Parties: DAVID S. PARROW AND MAUDE G. PARROW v. ALBERT EDWARD PROULX
• Court: Vermont Supreme Court

15 A.2d 835

111 Vt. 274

DAVID S. PARROW AND MAUDE G. PARROW v. ALBERT EDWARD PROULX

No. 380

Supreme Court of Vermont

October 1, 1940

May Term, 1940.

1. Construction of Instruments.---2. Particular Description Controls General.---3. Special Description Prevails over Loose One.---4. Indefinite Words in Description.---5. Description of Land by Quantity.---6. Quantitative Description may Prevail.---7."More or Less" and "About".---8. Use of Monuments in Indefinite Description.---9."About Two Acres, More or Less" as Controlling.---10. Waiver of Exception to Failure to Direct Verdict.

1. The intention of the parties, as gathered from the language used when applied to the premises, controls in giving construction to what is conveyed by a deed.

2. In ascertaining the intention of the parties to a deed effect must be given to the particular description as expressed by courses and distances, by permanent monuments, by lot and range, and by the adjoining, surrounding lands when such description does not coincide with the general description.

3. Clear and well defined metes and bounds which readily determine the boundaries of land conveyed prevail and settle the boundaries over any general words of description that may have been used in the deed which tend to enlarge or diminish the boundaries.

4. When the boundaries are definitely located by a deed they control the quantity actually conveyed and words such as "about two acres" and "about two acres, be the same more or less" become mere matter of description.

5. Description of land conveyed by quantity, unless certain especially when "more or less", generally gives way to a description by boundaries, even when land with bounds comprises a different quantity.

6. But the quantity described may be essential or even determinative when other parts of the description are not sufficiently certain.

7. The words "more or less" or "about" when qualifying quantity or distance enable adjustment to fixed monuments but do not weaken or destroy the statement of distance or quantity when no other guides are furnished.

8. The words "about" and "more or less" when qualifying a quantity of land described in a deed with an uncertain boundary may be considered equivalent to a suggestion that the uncertain boundary is located by some monument upon the ground rather than by a line that will enclose the exact quantity so qualified.

9. When a description in a deed does not definitely describe one boundary of a parcel described as "about two acres, more or less", it can not be held as a matter of law that such boundary lies along another known line that would materially reduce the acreage conveyed and omit another bound which is of indefinite length.

10. Defendant's exception to the overruling of a motion for a directed verdict at the close of the plaintiffs' case is waived by introducing evidence and not renewing the motion at the close of all the evidence.

ACTION OF TORT on P. L. 8555 for malicious removal of boundary marker. Trial by Chittenden County Court, September, 1939 Term, Shields, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted.

Judgment reversed and cause remanded.

Joseph a. McNamara and Robert W. Larrow for the defendant.

M G. Leary and M. G. Leary, Jr., for the plaintiffs.

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

OPINION

SHERBURNE

This is an action of tort based upon P. L. 8555 for the wilful and malicious removal of an alleged boundary fence and markers. Verdict and judgment were for the plaintiffs, and the case comes here upon defendant's exceptions.

The plaintiffs and defendant's wife are adjoining owners of lots on the westerly side of the Malletts Bay road in Colchester, and derive their respective titles from a common source, Josephine Pagel and Marie Levesque, who held title to same in one parcel of about four acres. The southerly line of this parcel, which was also the northerly line of the land of Fred Richard, intersected this road at an angle of 64/d 13', and the westerly line was parallel to the road.

In 1925 Pagel and Levesque leased to the Standard Oil Company of New York a strip of land at their south-east corner, having a frontage on the Malletts Bay road of 206.2 feet and a depth of 100 feet, and bounded on the north by a line at right angles to this road. By a warranty deed, dated April 8, 1929, in the covenant and warranty clauses of which the Oil Company lease was expressly excepted, they conveyed to Helen F. and Maurice H. Chausse a piece of land, therein described as follows:

"Being the land and premises consisting of about two acres, having a frontage of about 204 feet with four room cottage thereon, together with all rights and title in land occupied by Standard Oil Co. under contract. Said land and cottage are situated on the westerly side of Malletts Bay Road, so-called, leading from Burlington, Vermont, to Malletts Bay, said land has a frontage on the westerly side of said Malletts Bay Road of 204 feet and is bounded on the north by land of said Josephine Pagel and Marie L. Levesque and on the south by land of Fred Richard and extends westerly to the westerly line of said Pagel and Levesque property and bounded on the east by said Malletts Bay Road and contains about two acres, be the same more or less. The easterly part of said lot of land hereby conveyed with a frontage of 204 feet and 125 feet in depth is under contract of lease by the Standard Oil Company of New York, said lot of land is a part of the same lot of land that was conveyed to said Josephine Pagel and Marie L. Levesque by Robert B. and Anna D. Miller by their deed of warranty dated Aug. 31, 1922, and of record in the Town Clerk's office of said Town of Colchester. Reference being made to said deed in aid hereof."

After the defendant's wife had obtained title to this lot from the Chausses in 1932, and before the remainder of the four acre parcel had been sold, Mrs. Levesque erected an iron fence on the line of markers which had been set by the Oil Company at each end of its north line to mark its corners. Such fence was also extended a few feet farther west along the same course until the supply of fence posts ran out. On April 21, 1937, Mrs. Levesque, who then owned the remainder of the four acre parcel, conveyed such remainder to plaintiff's grantor, by a warranty deed in which the lot conveyed to the Chausses was excepted and described as consisting "of two hundred and four feet frontage on said Malletts Bay Road, with a straight line extending to the rear of said lot." The above markers and fence are the ones here involved.

The court charged that the construction of the Chausse deed was for the court, and instructed the jury that the northerly line of the lot conveyed in that deed was identical with the northerly line of the lot leased to the Oil Company for the distance of 100 feet from the road. To this the defendant excepted.

The intention of the parties, as gathered from the language used when applied to the premises, controls in giving construction to what is conveyed by a deed. Cummings v. Black & Covell, 65 Vt. 76, 25 A. 906. In ascertaining such intention, when the particular and general description do not coincide, effect must be given to the particular description such as expressed by courses and distances, by permanent monuments, by lot and range, and by the adjoining, surrounding...