Royce v. Carpenter

• Decision Date: 10 May 1907
• Court: Vermont Supreme Court
• Parties: ROYCE v. CARPENTER et al.

66 A. 888

80 Vt. 37

ROYCE

v. CARPENTER et al.

Supreme Court of Vermont.

May 10, 1907.

Appeal in Chancery, Windsor County; James M. Tyler, Chancellor.

Suit by Edwin W. Royce against Norris Carpenter and another. Heard on appeal, answer, master's report, and exceptions. From a decree for the orator, defendants appeal. Affirmed.

Argued before, ROWELL, C. J., and MUNSON, WATSON, STAFFORD, and HASELTON, JJ.

Wm. W. Stickney, John G. Sargent, and Homer L. Skeels, for appellant. Gilbert A. Davis and Waterman & Martin, for appellees.

WATSON, J. The allegations of the bill show that for some years the orator has been and now is the owner of a certain sawmill on the northerly bank of Black river, in the town of Plymouth, together with the water privilege and the land connected therewith; the same being occupied and used by him for lumbering purposes, which premises are bounded on the south by land formerly owned and occupied by William Earle, and on the east by land formerly owned by Agatha M. Moore. It appears from the report that in earlier days the land about the orator's mill, and owned in connection with it, was called the "Briggs Millyard." The allegations further are that the orator holds a bond for a deed and is in possession of the land above referred to as formerly owned and occupied by William Earle. This land is on the south side of the river against and extending below the orator's mill, and is bounded on the north by the river. It is called the "Ormsby" or "Earle lot," but hereinafter reference will be made thereto as the "Earle lot" The defendants, having purchased of Agatha M. Moore the land bordering the orator's mill property on the east, and known as the "Shaw lot," in 1900 erected a dam across the river a short distance below the orator's dam and mill, and thereby flowed some of the Earle lot to his damage, and also set back the water in the river so as to flow his land and injure his water power and sawmill. The orator prays that the defendants may be enjoined from thus overflowing his land and injuring his water power and sawmill, for an account to be taken of the damages, and for general relief. September 28, 1899, John A. Woods owned the equitable title to the Earle lot, and it became his by deed July 31, 1900. On the former date he gave a bond for a deed of the same to Joseph M. Dyer, who paid $40 towards the purchase price and entered into possession of the property. November 6, 1809, Dyer and his wife transferred the same by indorsement on the bond to Orlando L. Coolidge; the latter taking possession. He retained the possession until June 11, 1900, when he surrendered it to Dyer and gave him the bond; there being no transfer in writing, except that Coolidge placed thereon in writing: "I, the said O. L. Coolidge, transferred to the said J. M. Dyer, June 11, 1900." September 4th, following, Dyer and wife transferred the same, by endorsement on the bond, to the orator, who took possession of the place and has retained it ever since. The bond and transfer to the orator were recorded in the land records of the town. On the 1st day of the next month a payment fell due on the bond. This and all subsequent payments falling due thereon to the time of the hearing before the master were made by the orator. The bond was a contract for the sale of land and assignable. Under such a contract the purchaser is treated in equity as the equitable owner of the land, and an assignee takes the same equitable estate.

It is said that Dyer and wife, after their transfer to Coolidge, had no legal title to the contract, and hence they could assign no interest therein to the orator. The assignment back to Dyer, though informal, was written by Coolidge on the bond. In connection therewith he gave the bond to Dyer and surrendered the possession of the property. By this transaction the parties intended manifestly that all the equitable rights in the property under the contract owned by Coolidge should be assigned to Dyer. A court of equity will regard the substance, rather than the mere form, of the assignment, and give it such effect as the parties intended. Under the subsequent assignment from Dyer and wife, the orator has the same rights.

Shortly before Dyer transferred the bond to Coolidge, the defendant Carpenter applied to them for the privilege of flowing the water of the river upon the Earle place, if the defendants should erect their dam as it is now located. Wood, Dyer, and Carpenter met near the place of the dam and verbally agreed that the defendants might build their dam of the height later set forth in the deed from Wood to them, dated June 6, 1900, on Carpenter's paying $25 to be applied on the bond to Dyer. At sometime the $25 were paid by Carpenter to Wood, but it was never indorsed on the bond. When the bond was assigned to Coolidge, he had notice of the agreement with Carpenter, and consented to it. The record does not show that the orator, at the time of his purchase of the bond, had actual notice of this agreement or of such payment; but facts are found touching the question of constructive notice. The damages to the Earle land are reported separately, and the question whether on the facts found the orator was entitled to recover the same was submitted to the court. The court below disallowed these damages, thereby impliedly holding the orator chargeable with constructive notice. Since in this no claim of error is made, we pass to the other branch of the case.

The determination of the true location of the division line between the land of the orator and the land of the defendants is essential to the decision of the case. The orator claimed before the master that it was the southerly portion of line iv to 7 on the plan marked "Batchelder's Plan," and, if not this line, then the line 3 to 4 to 8 on the same plan, or a line near them. This line as first above given strikes the south bank of Black river about 14 rods southerly of the foundation of the old sawmill, which stood pretty near where the orator's present mill stands. The defendants claimed the true line starts on the south bank of the river 4 rods, or nearly that distance, below the orator's mill. The master finds that the original line between the Briggs millyard and the Shaw lot was the southerly end of the line iv to 7 laid down on the plan, and that in the early days the Briggs millyard came down the river to that line. The defendants did not seriously question this, but contended that about 1831 there was a change made in the location of the line, so that it commenced on the south bank of the river, 4 rods, or about that distance, down stream from the foundation of the Briggs sawmill as it then existed. But from all the evidence the master was unable to find that the line was ever changed from where it originally ran, and he finds the line, commencing at point 7 on the plan, and running toward point iv, as far as the road or wall to be the true line between the parties. It is said, however, that the master reached this conclusion by an erroneous construction of Exhibit 27, a deed from Franklin Prior to Walter Fletcher, dated January 25, 1831. The master construed this deed as conveying one undivided half of the Shaw lot; whereas, the defendants say it should have been construed as conveying the whole lot. The defendants objected to the construction given, because they said that when properly construed the title to the Shaw lot and to the Briggs mill lot merged in Fletcher, and that he made a change in the division line between them. The master says such merger could not have been, for the title to the Shaw property was in Prior and Fletcher, and they conveyed it September 20, 1831, by their warranty deed, to I. P. Brown, bounding it on the up-river side by the Briggs sawmill yard.

If the master's construction is right, there could be no such merger of title as defendants claim. Nor could there be if his construction is wrong: June 29, 1825, Asa Briggs conveyed the mill lot to Asa Briggs, Jr. The findings show that the land thus conveyed included the Briggs millyard, extending down the river to the "original line" between it and the Shaw lot. No further change of title appears until October 23, 1828, when Asa Briggs and Asa Briggs, Jr., conveyed the property to Walter Fletcher; the point of beginning named in the deed being "about four rods south of the sawmill; thence northerly across the road to I. P. Brown's land." With the point of beginning and the easterly line as thus given, Fletcher took by that conveyance no title to the land between the two lines here claimed by the respective parties. That remained in Asa Briggs, Jr., or in him and his father. January 25, 1831, Fletcher...