Percival v. Fletcher

• Decision Date: 03 November 1959
• Docket Number: No. 36,36
• Citation: 155 A.2d 737,121 Vt. 291
• Parties: Leo J. PERCIVAL v. Lee K. FLETCHER.
• Court: Vermont Supreme Court

Page 737

155 A.2d 737

121 Vt. 291

Leo J. PERCIVAL v. Lee K. FLETCHER.

No. 36.

Supreme Court of Vermont.

Nov. 3, 1959.

Lisman & Lisman, Burlington, for plaintiff.

Frederick J. Fayette, Burlington, George W. F. Cook, Rutland, for defendant.

Before HULBURD, C. J., and HOLDEN, SHANGRAW and BARNEY, JJ., and MORRISON, Superior Judge.

BARNEY, Justice.

This is a suit in chancery whereby the plaintiff, Leo J. Percival, seeks to restrain the defendant, Lee K. Fletcher, from crossing the land of the plaintiff. The defendant claims a right of way over the property. Evidence was taken and findings made by the Chancellor. A decree was entered restraining the defendant from further use of the claimed right of way. The case is here on defendant's exceptions.

The findings may be summarized as follows: The parties own adjoining properties in the village of East Middlebury. Plaintiff's grandparents acquired the parcel now owned by him from one C. E. Russell in 1897. Title passed from them to plaintiff's parents, then to him. Russell, the grantor, then owned the adjoining parcel and reserved a driveway in his deed to plaintiff's grandparents in the following language:

'always reserving a driveway from my barnyard easterly across said premises to the Mill Road, said driveway to be and remain unobstructed.'

In 1920 Russell conveyed this retained parcel, together with the appurtenances thereto, to defendant's predecessor in title. No issue is raised by either party concerning the chain of title to either parcel involved here. The premises of the plaintiff are at the corner of Mill Road and Main Street, bounded on the south by the Middlebury River. The defendant's premises also front on Main Street and are immediately westerly of plaintiff's property, divided from it by a common boundary. The controversy relates to a driveway running easterly from the rear of defendant's premises across the rear of plaintiff's parcel to Mill Road. The rear of both plaintiff's and defendant's premises have direct access to Main Street by means of separate driveways wholly on their own premises. From 1927 to August, 1956, there was no well defined roadway or right of way over the rear of plaintiff's property, and since 1927 there has been no travel from defendant's land over plaintiff's premises except for an occasional pedestrian. In 1932 a controversy arose over the use of plaintiff's property for right of way purposes between the then owners. Plaintiff's predecessors in title placed clotheslines across the back of the property. In 1933 and 1934 the lines put up were cut on several occasions by the then owner of defendant's premises. Since 1941 a stone wall has extended from the rear of the house on plaintiff's property south some 20 or 25 feet. In the 1940's a tenant of the plaintiff used the back of the property to park cars and trucks, and eight or ten years ago a cesspool with connecting pipes was placed in the back yard of plaintiff's property. In August of 1956, while plaintiff was in New York, the defendant caused one hundred square yards of gravel to be dumped on the back yard of plaintiff's property, had trees and brush cut, removed rocks and boulders, and extended her driveway from her own land easterly across plaintiff's property. Although the findings do not state, both the pleadings and the testimony in the case reveal that it was undisputed that the right of way or driveway as claimed by the defendant passed within a foot or so of the rear of the house on plaintiff's property. The Chancellor's concluding finding was that the plaintiff, his tenants and predecessors in title, had occupied and possessed the entire back yard of his premises between the southerly side of his home and the Middlebury River, and between the Grist Mill Road and the division line between plaintiff's and defendant's land, continuously, uninterruptedly, openly, notoriously, exclusively and under a claim of right from the year 1927 until August of 1956 when interrupted by the acts of the defendant here complained of.

The defendant excepted to certain of the Chancellor's findings, but elected to omit dealing with these exceptions in her brief, thereby waiving them. State v. Haskins, 120 Vt. 288, 296, 139 A.2d 827. The findings therefore stand here unchallenged.

The defendant excepted to the Chancellor's failure to comply with certain of her requests for findings and enumerates in her brief five of these exceptions for decision here. These suggested findings were propositions of fact and law for which the defendant claimed support in the evidence, and may be summarized as follows: There was no evidence in the case that there was any use of the plaintiff's land by any titleholder inconsistent with ownership of the driveway easement in question by defendant or her predecessors in title. There was no evidence in the case that the erecting of the clothesline or lines across the driveway prevented the use of the driveway by anyone claiming ownership. Except for the two instances of clothesline cutting there was no credible evidence that there was any use of the driveway by the plaintiff or prior owners or tenants hostile to the defendant or her predecessors in title until August of 1956. After the clothesline cutting incident an attorney representing the plaintiff's predecessor in title called on the defendant and wanted to get a price on the driveway so that plaintiff's parents, the then owners, would buy it; he was told the driveway was not for sale. The final request was that the defendant be declared owner of the driveway as an appurtenance to her parcel of land, and that neither the plaintiff nor any of his predecessors in title had acquired ownership of the driveway by open, notorious, hostile and continuous possession of the driveway for fifteen years.

In her brief the defendant concedes that many of her requests are in part conclusions of law. A finding containing a conclusion of law cannot stand if that conclusion is inconsistent with the facts found which must support it. Thompson v. Smith, 119 Vt. 488, 497, 129 A.2d 638; Incorporated Village of Enosburg Falls v. Hartford Steam Boiler Inspection & Ins. Co., 117 Vt. 114, 116, 85 A.2d 577. Therefore, unless the conclusions in the requests were consistent with the facts found by the Chancellor, he was not bound to comply with the requests. If requests are in part unsound compliance therewith by the Chancellor is not required. Brown v. Gallipeau, 116 Vt. 290, 295, 75 A.2d 694. That the conclusions in these requests did not meet the test of consistency appears from the findings as made.

Further than that, a comparison of the requests themselves discloses that the evidence in support of their factual content was conflicting, or susceptible of opposing inferences. This is confirmed by an examination of the transcript. With the facts at issue is these requests in conflict, the Chancellor, acting fairly and reasonably, was free to find contrary to the defendant's requests. Holton v. Ellis, 114 Vt. 471, 485, 49 A.2d 210.

The evidence as to the alleged transaction with the attorney purportedly representing the plaintiff was based solely on the testimony of the defendant, which the Chancellor was not required to believe. Scott's Ex'r v. Beland, 114 Vt. 383, 396, 45 A.2d 641. Even if the testimony were believed this evidence was material and had probative force only if the agency relation existed between the attorney in question and the plaintiff's predecessor in title. The fact that the attorney was at the time state's attorney of the county makes the evidence at least equivocal as to his capacity when making his alleged visit. Furthermore, nothing is better established in the law than that agency cannot be proved by the mere declarations of the alleged agent made out of court. Hendrickson v. International Harvester Co., 100 Vt. 161, 165, 135 A. 702; Taplin & Rowell v. Harris, 88 Vt. 15, 18, 90 A. 956; Prouty v. Nichols, 82 Vt. 181, 184, 72 A. 988. The request was properly denied.

Moreover, in briefing these exceptions to the failure of the Chancellor to find as requested, nothing is put forward by the defendant in her brief by way of demonstration that the evidence in the case supports any of her requests. This Court will not search the record to sustain an exception. Holton v. Ellis, supra, 114 Vt. at page 485, 49 A.2d at page 220. For all of these reasons the exceptions to the failure of the Chancellor to find as requested are not sustained.

The principal contention of defendant's brief in treating the Chancellor's failure to find as requested is actually directed to the proposition that the findings do not support a decree ousting the defendant from her easement by adverse possession. The defendant further devotes a separate secti...