Pion v. Bean

• Decision Date: 29 August 2003
• Docket Number: No. 02-179.,02-179.
• Citation: 833 A.2d 1248
• Parties: Leita and Roland PION v. Kevin BEAN and Tina Clapper.
• Court: Vermont Supreme Court

833 A.2d 1248

Leita and Roland PION v. Kevin BEAN and Tina Clapper.

No. 02-179.

Supreme Court of Vermont.

August 29, 2003.

Motion for Reargument Denied October 1, 2003.

Peter F. Langrock and Susan M. Murray of Langrock Sperry & Wool, Middlebury, for Plaintiffs-Appellants.

Michael Rose, St. Albans, for Defendants-Appellees.

Present: AMESTOY, C.J., DOOLEY¹, JOHNSON and SKOGLUND, JJ., and GIBSON, J. (Ret.), Specially Assigned.

¶ 1. SKOGLUND, J.

Plaintiffs Leita and Roland Pion appeal from the trial court's order in this boundary dispute and tort action. Plaintiffs contend that the trial court erred in: (1) establishing the northern boundary of defendants' lot; (2) finding for defendants on their claims of invasion of privacy, infringement of riparian rights, and conversion; and (3) awarding compensatory and punitive damages to defendants. We affirm.

¶ 2. Plaintiffs and defendants own adjoining residential lots in St. Albans, Vermont. Plaintiffs' lot, less than one acre in size, resembles an upside-down "u." It surrounds defendants' one-quarter-acre lot (B/C lot). Both parcels front Vermont Route 36 on the south; the parties dispute the northern, western, and eastern borders of the B/C lot.

¶ 3. In August 2000, plaintiffs filed a complaint to quiet title. They asked the court to establish the boundaries of the B/C lot consistent with a survey they had prepared. They also sued defendants for trespass and unlawful discharge of sewage. Defendants filed counterclaims against plaintiffs, raising allegations of trespass, infringement of riparian rights, intentional infliction of emotional distress, invasion of privacy, and nuisance. Defendants requested injunctive relief, compensatory damages, punitive damages, and attorneys' fees. Defendants later amended their counterclaim to add a claim for removal of trees from their property.

¶ 4. Following a trial by court, in a March 2002 order, the court established the boundaries of the B/C lot consistent with a survey provided by defendants, rejecting the survey submitted by plaintiffs. The court also awarded defendants compensatory and punitive damages on their conversion and invasion of privacy claims, and granted injunctive relief and compensatory damages on their infringement of riparian rights claim. This appeal followed.

¶ 5. Plaintiffs argue on appeal that the trial court erred in: (1) establishing the northern boundary of the B/C lot; (2) granting injunctive relief, and awarding damages for infringement of riparian rights based on a finding that plaintiffs were responsible for groundwater appearing in defendants' basement; (3) awarding treble damages for conversion of two trees from defendants' property; (4) holding them liable for invasion of privacy; and (5) awarding punitive damages. Given the multiple claims of error raised, we address each issue and its underlying facts in turn.

¶ 6. We first address the parties' boundary dispute. The facts supporting this claim are as follows. The B/C lot was created in 1949 when Mrs. Pion's grandfather subdivided his property. The deed describes a lot bounded by four iron posts, with the following dimensions: eighty-nine feet between the southwest and northwest corner pins, sixty-nine and one-half feet between the northwest and northeast corner pins, sixty feet between the northeast and southeast corner pins, and fifty-nine and one-half feet between the southeast and southwest corner pins. According to the deed, the northwest and northeast corners of the B/C lot are located at ninety-degree angles formed by the intersection of the northern boundary with the western and eastern boundaries.

¶ 7. The original posts marking the northeast and northwest corners of the lot no longer exist, and the parties presented conflicting evidence about the posts' location. Plaintiffs argued that their survey, prepared by Steven Brooks in April 2000, accurately depicted the lot's northeast and northwest corners. At trial, Brooks described the method he used to ascertain the property's northern boundary. He testified that he began his survey at a buried iron marker in the southwest corner of the lot that had been pointed out by Mr. Pion. Following the distance specified in the deed, Brooks then installed a new iron marker eighty-nine feet north of the first marker. At that point, Brooks discovered that he could not "close" the survey using the distances, courses, and specific angles found in the deed. Brooks testified that, if the northern boundary of the property were to meet the western and eastern boundaries at right angles, the distances would be incorrect; if he followed the distances in the deed, the angles would be incorrect. Consequently, following surveying conventions, Brooks let the distances called for in the deed control over the angles, and prepared his survey accordingly.

¶ 8. In support of their claimed northern boundary, defendants submitted a 1995 survey map that had been prepared for the installation of a new septic system (Benchmark survey). The survey map, drawn to scale, depicts two iron pins in the northwest and northeast corners of the B/C lot. The pins identified on the Benchmark survey are farther north than those depicted in the Brooks survey. Defendants maintained that the pins identified in the Benchmark survey accurately represented the missing northwest and northeast corner pins.

¶ 9. Defendant Bean, and four prior residents of the B/C lot, testified that they had observed the pins in locations consistent with the Benchmark survey map. Bean stated that, when he purchased the B/C lot in 1998, the pins were in the same location as depicted in the Benchmark survey. Bean stated that the northeast corner pin had been located eight feet north and two to three feet east of the northeast corner of his garage.

¶ 10. Previous residents of the B/C property testified similarly. Richard Buro, who lived in the B/C house between 1965 and 1986, testified that the northeast corner pin used to be located six feet north and two feet east of the B/C garage. Douglas Larson, who lived in the B/C house between 1990 and 1994, testified that the northeast corner of the lot had been marked by an iron pin about nine feet north and three feet east of the back of the B/C garage. Deborah Larson testified that the northeast corner pin had been located about three feet east and nine feet north of the B/C garage, and the northwest corner pin had been in a brook behind the B/C house. Ann Putnam, who owned the B/C lot between 1994 and 1997, testified that the northeast corner pin had been located about nine feet north and three feet east of the northeast corner of the B/C garage. She stated that the northwest corner pin had been located in the stream bed, two to three feet west of the north-south property line that had been defined by a stone wall. Mrs. Putnam testified that the Benchmark survey accurately depicted where she perceived the B/C lot boundaries to be.

¶ 11. In 1999, plaintiffs filled in the streambed behind the B/C house, and installed a culvert. Bean, Mrs. Putnam, and other prior residents of the B/C lot testified that the pins they had previously observed were missing when they visited the B/C lot in May 2000.

¶ 12. Based on this and other evidence presented at trial, the court established the B/C lot's boundaries. The court concluded that the iron pins shown in the Benchmark survey were the original artificial monuments installed at the creation of the B/C lot, and that plaintiffs had removed these markers when they filled in the streambed. The court found the Benchmark survey's depiction of the pins' location consistent with testimony from defendants and prior owners of the B/C lot. The court therefore established the northern boundary of the B/C property as a straight line running between the two pins identified in the Benchmark survey.

¶ 13. The court rejected Brooks' opinion regarding the northern boundary because it conflicted with credible circumstantial evidence establishing the original monuments as shown on the Benchmark survey. The court found that Brooks had ignored the monuments, and instead started his survey at a pin pointed out by Mr. Pion. The court also found Brooks unreliable because he changed his testimony midtrial, and his trial testimony conflicted with his own survey map.

¶ 14. Plaintiffs argue that the trial court erred in relying on defendants' "septic sketch," rather than the Brooks' survey, in establishing the B/C lot's northern boundary. They maintain that the Benchmark survey, and the testimony of Bean and prior B/C owners, was too imprecise to support the court's finding. Plaintiffs also argue that the evidence does not support the court's finding that the pins shown on the Benchmark survey are the original northwest and northeast markers. Plaintiffs make brief reference to the court's determination of the B/C lot's western boundary, but they do not specifically challenge any of the findings underlying the court's conclusion. We therefore decline to address this argument. See Johnson v. Johnson, 158 Vt. 160, 164 n. *, 605 A.2d 857, 859 n. * (1992) (this Court will not consider arguments not adequately briefed).

¶ 15. The court's determination of a boundary line is a question of fact to be determined on the evidence. Monet v. Merritt, 136 Vt. 261, 265, 388 A.2d 366, 368 (1978). We will not disturb the trial court's findings of fact unless they are clearly erroneous, despite inconsistencies or substantial evidence to the contrary. Id. When a deed is ambiguous, the court applies well-established rules of construction to establish the intent of the parties to the deed. Id. at 264, 388 A.2d at 368. An inconsistent metes and bounds description yields to a description by monument. Id.; Marshall v. Bruce, 149 Vt. 351, 352, 543 A.2d 263, 264 (1988). Accordingly, distances must be lengthened or shortened and courses varied so as to conform to the monument description. Monet, 136 Vt. at 265...