Pennock v. Goodrich

• Decision Date: 08 May 1929
• Citation: 146 A. 1
• Parties: PENNOCK et ux. v. GOODRICH et ux.
• Court: Vermont Supreme Court

146 A. 1

PENNOCK et ux.

v. GOODRICH et ux.

Supreme Court of Vermont. Rutland.

May 8, 1929.

Appeal in Chancery, Rutland County; John S. Buttles, Chancellor.

Suit by Edmond M. Pennock and wife against Clair D. Goodrich and wife. From a decree dismissing the bill, plaintiffs appeal. Reversed pro forma and remanded, with leave to plaintiffs to apply for permission to amend. Decree to be affirmed if no such application is made within reasonable time.

Argued before WATSON, C. J., and POWERS, SLACK, MOULTON, and CHASE, JJ.

Lawrence, Stafford & Bloomer, of Rutland, for appellants.

Jones & Jones and Charles L. Howe, all of Rutland, for appellees.

WATSON, C. J. This is an action in equity in which the facts were found and filed by the chancellor. On the facts thus of record, the plaintiffs' bill was dismissed with costs. From this order and decree plaintiffs appealed, and thereon the case is here for review.

In their brief, plaintiffs say the case resolves itself into four issues: (1) Shall the previous decree bind all parties, including the codefendants? (2) Shall knowledge of the road by defendants bind them in equity? (3) Shall a way of necessity release the plaintiffs from liability? (4) Are the findings and refusals to find substantiated by the evidence?

Defendants claim in their brief that there is only one issue in this case, and that issue is: Was the reservation or exception of a right of way omitted by mistake from the deed of December 10, 1918 (Defendants' Exhibit A), at the time it was executed, and if so should that deed be reformed and corrected to include such reservation or exception?

We think defendants' claim in this respect is borne out by the bill and answer in the case, and we treat the case accordingly.

It appears from the findings that on June 18, 1918, the plaintiffs were the owners of certain lands and premises located in the town of Rutland, which lands were known as the "Capron farm" and the "Howard lot"; that the Capron farm is adjacent to and borders on the "Post Road," so called, and the Howard lot is located in the rear of the Capron farm; that on June 18, 1918, the Pennocks entered into a written contract or agreement for a deed with one Henry Peryea under the terms of which the Pennocks agreed to sell and Peryea to buy the Howard lot, and Peryea went into possession thereof; that said agreement contained the following provision: "The party of the second part is to have the right of way across other premises of the parties of the first part at reasonable and proper times." This agreement for a deed was duly recorded in the town of Rutland prior to the conveyance of the Capron farm by the Pennocks to the Goodriches as hereinafter stated. There was no highway which borders on the Howard lot.

The Pennocks retained title to and possession of the Capron farm until December 10, 1918, when they conveyed it to Clair D. Goodrich and Eva I. Goodrich, his wife.

There is an old and more or less distinct roadway leading across the Capron farm to the Howard lot. This roadway was used by Mr. Pennock when he had title to both par eels, and the apparent age of the roadway indicates that it was used by his predecessors in title. There is no right of way appurtenant to the Howard lot across the land of others adjacent to that lot, exclusive of the Capron farm and leading to the "Post Road."

In the early part of 1919, the Goodriches prevented Peryea from crossing the Capron farm to get to the Howard lot. Their action in so doing was subsequently held unlawful in the chancery action brought on January 23, 1925, by Peryea by way of a bill of complaint against the Pennocks and the Goodriches, being the plaintiffs and defendants in the present suit.

Therein Peryea alleged, among other things, that he had and owned the right of way over the Capron farm leading from the Howard lot to the highway, in accordance with his contract with the Pennocks, and that he had been unlawfully and unjustly prohibited from using the same; that Clair D. Goodrich and Eva I. Goodrich, well knowing of the right of Peryea to the right of way over and across the Capron farm, had denied to Peryea the right to use the same, had prevented his use...