Raffaele Abatiell Et Al v. Cleo D. Morse

• Decision Date: 06 January 1948
• Citation: Raffaele Abatiell Et Al v. Cleo D. Morse, 56 A.2d 464, 115 Vt. 254 (Vt. 1948)
• Parties: RAFFAELE ABATIELL ET AL v. CLEO D. MORSE
• Court: Vermont Supreme Court

56 A.2d 464

115 Vt. 254

RAFFAELE ABATIELL ET AL v. CLEO D. MORSE

Supreme Court of Vermont

January 6, 1948

Special Term at Rutland, November, 1947.

Adverse Possession.

1. The right to an easement in another's land acquired by long use and enjoyment is analogous to the right acquired by adverse possession; and the rules of law applicable to the two cases are in harmony.

2. For the adverse possession of a third person's land, or the adverse use of an easement thereover, by a tenant under his lease to inure to the benefit of the landlord so as to support the latter's title to such land by adverse possession, or his right to such easement by prescription such land or easement must be, either expressly or impliedly within the terms of the lease; an independent adverse occupation by a tenant of another's land not purporting to be covered by the terms of the lease, and not based upon any authorization purporting to be conferred therein by the lessor, does not inure to the benefit of the landlord.

3. A finding which is a conclusion of law cannot stand if it is inconsistent with the findings upon which it is based.

4. In considering on review whether a decree is supported by the findings, the following rules are to be heeded: (a) doubtful findings are to be construed in favor of the decree if this can reasonably be done; (b) it must be assumed, in favor of the decree that the trial court inferred such facts from the other facts certified as it ought to have done, or might fairly have done; (c) the Supreme Court, on appeal, will not for the purpose of reversing a judgment read into the findings something which is not there, and which is not a necessary inference from the facts found.

BILL IN CHANCERY to enjoin the obstruction of a claimed right of way. After a hearing findings of fact were made and a decree was entered dismissing the bill. In Chancery, Rutland County Blackmer, Chancellor.

Decree affirmed.

Stafford, Abatiell & Stafford for the plaintiff.

Vernon J. Loveland and Christopher A. Webber for the defendant.

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

OPINION

SHERBURNE

This is a bill in chancery to enjoin the obstruction of a claimed right of way. After a hearing findings of fact were made, and a decree was entered dismissing the bill. The case is here upon plaintiff's exceptions.

The findings, so far as here material, show that the plaintiffs own a lot of land upon the easterly side of Strongs Avenue in the City of Rutland, upon which is a large building containing in the northerly part thereof a store upon the ground floor and an apartment over the store. The land next north of this lot is owned by the defendant. The division line runs along the north side of plaintiffs' building, and so near to it that the plaintiffs do not own enough land on that side to permit passage from Strongs Avenue to the rear thereof either on foot or with vehicles. There is a rear entrance to the apartment and to the store on the north side of the building located about fifty feet from Strongs Avenue. There is no way to reach this entrance without passing over defendant's land. There is also a front entrance to the store and to the apartment directly from Strongs Avenue. Since they purchased the property in 1916 the plaintiffs have claimed to own enough land north of their building to permit passage with motor vehicles, and at no time intended to claim only to the true line, wherever that line might be. Plaintiffs now claim a right of way there. In 1916, and for many years thereafter, the defendant's lot was vacant except for billboards standing thereon. In 1932 or 1933 a filling station was erected thereon. Findings 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 28, 30, 31 and 32 read as follows:

"15. Every year from 1916 through 1945, the plaintiff Raffaele and his minor children annually repaired and improved the strip in question for use as a driveway. They put in fill and graded. Such repairs and improvements were not extensive; there has been and is a little distinction between the claimed right of way and the adjacent part of the defendant's lot. No one else other than the Abatiell family ever made repairs or improvements to the strip in question.

"16. Plaintiff Raffaele has occasionally walked around and inspected, sat there, and cleaned up. He and his children, both minor and adult, have parked and washed their cars there.

"17. The inference is that in making these repairs and improvements Raffaele was acting for the benefit of both himself and the tenants of the store and the apartment.

"18. The improved and used strip, i.e., the disputed strip or the claimed right of way, is of sufficient width to permit passage with ordinary trucks....

"19. The major part of the actual use of the disputed strip has been by tenants of the plaintiffs and their guests, customers of the store, deliverers of merchandise to tenants of the store (hereinafter referred to as "tenants and those associated with them') and the plaintiffs' adult children, these latter for their own purposes, not those of the parents. It is impossible to be precise, but I believe that ninety percent of the use was of this character.

"20. The use of the disputed strip by the tenants and those associated with them has been at all times with the knowledge and assent of the plaintiffs. It was not, however, under any express authority from the plaintiffs. Plaintiffs were at all times in a position to claim, if need be, that the acts of the tenants were their own acts, not those of the landlord.

"21. The plaintiffs never operated the store. They leased it at least six times, and the apartment was continuously occupied by several successive tenants. None of the leases, either of the store or of the apartment, purported to lease any land or right of way north of the plaintiffs' building.

"22. Merchandise was commonly delivered to the store from trucks, both

through the front door on Strongs Avenue and at the back entrance. In delivering to the back entrance trucks passed from Strongs Avenue over the

claimed right of way.

"23. The tenants of the apartment used both the front and rear entrances to the apartment as their desires and convenience

dictated. In using the back entrance they passed to and from Strongs Avenue over the claimed right of way.

"24. No one ever asked the defendant,

nor his predecessors in title, for permission to use the claimed right of way for any purpose. The use as above described was in its entirety open and notorious. It was known to at least one of the defendant's predecessors in title and ought to have been known by all of them.

"25. No one ever interfered with the use of the claimed right of way as herein described from 1916 until the defendant made plans to fence it off in the early part of 1946. This purpose on the part of the defendant gave rise to this litigation.

"28. Defendant knew casually of the use of the claimed right of way before he purchased the lot. He became very conscious of it immediately after.

"30. The plaintiff's use of the disputed strip has been open and under a claim of right since 1916. Standing alone, it has not been notorious; together with use of the tenants and those associated with them it has been. It has not been exclusive and continuous by itself; together with the use of tenants and those associated with them it has been. It has been hostile to the owners, and so has the use of the tenants and those associated with them.

"31. The plaintiffs have no prescriptive right of way over the defendant's land.

"32. I do not find the implication to be that the use of the several tenants and those associated with them, as described above, was under and by virtue of their leases in such a way that their use goes to establish prescriptive rights in the plaintiffs."

Passing over the questions raised by the defendant as to the adequacy of plaintiffs' exceptions to the findings of fact, the only points briefed by the plaintiffs refer to their exception to finding 31, and to the failure of the chancellor to find as requested, "that the use of said disputed strip by the tenants and family of the plaintiffs was under circumstances justifying the...