Savard v. George

• Decision Date: 05 October 1965
• Docket Number: No. 1972,1972
• Citation: 125 Vt. 250,214 A.2d 76
• Parties: Lucien SAVARD and Mary Savard v. Guy GEORGE and Beverly George Bolles.
• Court: Vermont Supreme Court

Page 76

214 A.2d 76

125 Vt. 250

Lucien SAVARD and Mary Savard v. Guy GEORGE and Beverly George Bolles.

No. 1972.

Supreme Court of Vermont.

Oct. 5, 1965.

Gelsie J. Monti, Barre, for plaintiffs.

Daniels & Burgess, Montpelier, for defendants.

Before HOLDEN, C. J., and SHANGRAW, BARNEY, SMITH and KEYSER, JJ.

SMITH, Justice.

This is an action for ceclaratory judgment, in chancery. The plaintiffs claim ownership of a strip of land on the easterly side of the highway leading from North Calais south to Cranberry Meadow, so-called, located on the west shore of Nelson Pond. The defendant, Beverly George Bolles, is the owner of property, including a cottage, on the west side of the highway.

The subject of the controversy is a wooden stairway opposite the cottage of the defendant, which extends from the easterly edge of the travelled road down the 45% grade to the waters of Nelson Pond, and a wharf extending into the water, which were constructed by the defendant for access to the pond.

The plaintiffs seek to have established their title to the land upon which the stairway and wharf are erected and to have the defendants be permanently enjoined from crossing and trespassing upon the presmises.

After hearing in the Washington Court of Chancery on several different dates in July and October, 1963, the Chancellor made findings of fact, and a decree based thereon. The decree of the Chancellor was that the plaintiffs did not own the fee to the land upon which the stairway and wharf of the defendants were located, and that such land was within the three rod limit of the highway right of way. The plaintiffs have appealed here from the decree, from certain of the findings of fact made by the chancellor, as well as from the failure of the Chancellor to find in accordance with requests to find made by the plaintiffs.

The highway along the westerly side of Nelson Pond was orginally surveyed and laid out over a century ago, in 1852, by the Town of Calais. The road, as it now exists, was found by the Chancellor, who viewed the site, to be three rods wide, with the easterly limits of this highway extending a short distance beyond the highwater limits of Nelson Pond. The defendants made no claim to ownership of the disputed land, but based their right to erect the stairway and wharf on written permission from the selectmen of Calais, given in 1962, to maintain such structures within the highway limits.

Plaintiffs claim to be owners in fee of such land by virtue of a warranty deed to them from Fred and Esther LaValley in June, 1946. The description of the land conveyed therein is:

'Starting at a pipe in the ground at the northerly end of the lot and running 253 feet in a southerly direction along the main road, so-called, to another iron pipe; thence turning an angle to the left and proceeding in an easterly direction 56 feet to another iron pipe on the shore of Nelson Pond; thence along the shore of said pond to point of beginning.'

It was the contention of the plaintiffs that the limits of the highway as laid out in 1852 left a small area of land between the westerly shore of Nelson Pond and the easterly limits of such highway which was coveyed to the plaintiffs by the deed to them from the LaValleys.

In support of this contention, the plaintiffs employed James Hoag, a civil engineer, to make a survey of the highway, as described in the recorded survey of 1852. It was Mr. Hoag's testimony that the original road was located one rod west of the present travelled highway, which would leave the land claimed by the plaintiffs outside the limits of the highway as originally laid out. Various maps and plans made by Mr. Hoag were received in evidence, together with his testimony. Mr Hoag also testified that he found several iron pipes near the shore of the pond in the course of his survey, which plaintiffs contended were the iron pipes marking their property lines as described in their deed from the LaValleys.

Admitted by Mr. Hoag was that his survey fell short by twelve feet of meeting the north line of the Town of Calais, at the point described in the 1852 survey. The testimony of Mr. Hoag, and the maps and plans made by him, were vital to the establishment of the plaintiffs' claim of ownership.

Significant, in view of the questions presented, are the remarks of the Chancellor in admitting the survey and maps made by Mr. Hoag over the objections of the defendants. 'To save time, we will admit Plaintiffs' 8, 9 and 10. And we think that perhaps the grounds of objections may go to the weight the Court will give to these drawings rather than to their admissability, and with this in mind we will admit them.'

Engineering experts improved as witnesses by the defendants testified that it was an impossibility to accurately re-survey a highway laid out and surveyed more than one hundred years previously. Professor Mara, an engineering instructor at Norwich University, testified that the difference in surveying instruments used at the present time, as compared with those used in 1852, the changes in magnetic declination, as well as other varying factors over the years, negated any re-creation with accuracy of the 1852 survey by a surveyor or engineer of today. Both Professor Mara and Justice Wheeler, the other engineering expert called by the defendants, stated that in the absence of established markers delineating the limits of a right of way that it was the established custom in Vermont to establish as the center line of an old highway the center line of the present travelled way.

The plaintiffs, to maintain this action, had the burden of establishing their title to the land easterly of the highway, on the shore of the pond where the stairway and wharf had been placed. Without proof of such title they could not sustain their charges of trespass against the defendants. It was essential to the success of plaintiffs' action that the re-survey of their expert Hoag be found by the Chancellor to be an accurate portrayal and definition of the highway boundaries, as laid out in 1852. The deed of 1946 to the plaintiffs, purporting to convey land to them on the east, or pond side, of the highway could convey them no title, in fact, if such land was within the limits of a highway which was in existence prior to the time that they received such deed.

Possibly, it is for this reason that much of the voluminous brief of the plaintiffs is directed to a lengthy and point-by-point argument that the Chancellor should have found in accordance with the evidence of their witnesses and the testimony and survey of their expert witness relative to the boundaries of the Calais road.

But it is the trier of facts to whom is given the sole determination as to the weight of the evidence, the credibility of the witnesses, and the persuasive effect of the testimony. 12 V.S.A. § 2385. Little v. Little, 124 Vt. 178, 182, 200 A.2d 276, and cases there cited.

The evidence as to the accuracy of the re-survey of the Calais road by Mr. Hoag was conflicting. But the testimony of Mr. Hoag, himself, was that his survey of 1962, although attempting to follow the descriptions given in the 1852 survey, did not establish the...