Scott v. Leonard

• Decision Date: 04 January 1956
• Docket Number: No. 249,249
• Citation: 119 Vt. 86,119 A.2d 691
• Parties: Walter A. SCOTT, Clarice S. Scott, George S. Trefren, Marion G. Redfield and Frank O. Morang v. Ruth LEONARD and Lois Grace Leonard.
• Court: Vermont Supreme Court

Page 691

119 A.2d 691

119 Vt. 86

Walter A. SCOTT, Clarice S. Scott, George S. Trefren, Marion G. Redfield and Frank O. Morang v. Ruth LEONARD and Lois Grace Leonard.

No. 249.

Supreme Court of Vermont.

Jan. 4, 1956.

Waterman & Downs, Witters, Longmoore & Akley, St. Johnsbury, for plaintiffs.

Paul R. Rexford, Rudolph J. Daley, Newport, Henry Lawlor, Boston, Mass., (on the brief), for defendants.

Before JEFFORDS, C. J., CLEARY, CHASE and HULBURD, JJ., and SHANGRAW, Superior Court Judge.

CLEARY, Justice.

This is a suit in chancery brought by plaintiffs Walter A. Scott and Clarice S. Scott. The bill of complaint alleges the plaintiffs' record title to certain premises in the town of Westmore and that the defendants own certain other lands in said town, so located that a roadway referred to in plaintiffs' title crosses the defendants' land. The bill of complaint also alleges that the said roadway has been used by the plaintiffs and their predecessors in title under a claim of right, both by deed and by continuous user and possession adverse to the defendants, and that the defendants have interfered with the plaintiffs' use of the roadway constituting trespass. The bill prayed that both temporary and permanent injunctions issue to prevent continued trespass. A temporary injunction was issued. George S. Trefren, Elwin N. and Effie T. Blake, Marion G. Redfield and Frank O. Morang later entered as parties plaintiffs, and either filed bills of complaint or adopted the bill of the original plaintiffs or did both.

The defendants answered denying record title and adverse possession by any plaintiff and denying any trespass or unlawful use of the roadway by the defendants. By way of cross bills the defendants claimed record title to said roadway and title by adverse possession. They alleged that the plaintiffs were trespassing and interfering with the defendants' legal use of the roadway, and prayed for an injunction restraining the plaintiffs from further interference and for damages. All the plaintiffs filed answers to the defendants' cross bills. Before the hearing of the case the plaintiffs Blake discontinued.

Hearing was had, findings of fact were made and filed, and a final decree made and filed enjoining the defendants from hindering or interfering with the use by the plaintiffs, in common with the defendants, of said roadway and dismissing the defendants' cross bills. The case is here on the defendants' exceptions to the findings of fact, to the failure to find as requested and to the decree. The plaintiffs base their claim on their title of record and the location and establishment of the right of way by long use and occupancy. They now make no claim that they have acquired the right by adverse possession so we shall make no further mention of that phase of the case. The defendants claim the exclusive right to the roadway both by their title of record and by adverse possession.

Among the facts found by the chancellor are the following. The driveway in suit lies between the shore line of Willoughby Lake in the Town of Westmore and U. S. Route 5A, running generally in front of cottages of the plaintiffs parallel to U. S. Route 5A, a distance of some three hundred feet, and then takes an easterly course through the defendants' land and premises to U. S. Route 5A. The source of title of all of the parties originates from their common grantors, F. H. and Ida Foster, who owned the area. It was known as 'Foster's Grove', and also as 'Edgewood Park.'

The first deed in the title of the plaintiffs Scott and Trefren was from the Fosters to Sarah Edna Grant, dated October 22, 1898, and states: 'it is hereby agreed that the spring on the north side of said lot shall be reserved by the said F. H. and Ida L. Foster for the use of the then users or all other parties or patrons of the said Foster's Grove and the said Sarah E. Grant is to have a right of way to the highway and the said Sarah E. Grant shall have a right to use water from the aforementioned spring at all times.' The next deed is from Sarah Edna Grant to S. F. Bickford and states: 'subject to all the reservations rights and privileges as is contained in said Foster's deed to me.' The next deed states: 'and any right or privileges which may have been gained or used in connection therewith.'

The first deed in the title of plaintiffs Redfield and Morang was from the Fosters to Nettie M., Lela and Carl P. Ford, dated August 26, 1896. It states: 'The aforesaid parties are to have the right to use water from the springs and wells and a right of way to the highway.'

The defendants acquired their property in two parcels, the first, called the Stiles Property, from Ava L. Peene by deed dated May 2, 1935, and the second from Florence G. Taplin, Admx., Susie R. Taplin Est. and Etta G. Rowell by two deeds, dated June 29, 1936. The first deed in the defendants chain of title is from the Fosters to Susie Taplin and Etta Grant Rowell, dated April 16, 1901, and states: 'This conveyance is made and accepted, subject to all subsequent conveyances of certain parts or parcels of the above described lands and premises and the said last mentioned conveyances are hereby excepted and named as follows to wit: the said Ida L. Foster and her husband F. H. Foster to the following named parties: Nettie Ford and others dated August 26, 1896, S. E. Grant dated October 22, 1898. Together with all rights, privileges and easements, restrictions and limitations mentioned and contained in the conveyances last mentioned as aforesaid.' The next deed in defendants' chain of title was from Taplin and Rowell to W. B. Stiles and described the property conveyed as seven lots in Edgewood Park known as Foster's Grove. This included the so-called 'Stiles property' which was deeded to the defendants by Ava L. Peene by deed dated May 2, 1935. The last two deeds to the defendants are of land adjoining the Stiles property, are dated the same day, June 23, 1936, and each conveyed a one-half interest in the property to the defendants. In the description each of these two deeds mentioned the grove and later stated: 'Reservation is hereby made in this conveyance of any and all rights of travel given or accrued over said roadway into grove above mentioned.' The chancellor then found further facts as follows:

7. The Court finds that the right of way referred to in the deed of F. H. and Ida L. Foster to Sarah E. Grant in the conveyance set forth in section (1) of Paragraph 4 of these Findings was specifically undefined in that conveyance. It was been located and established on the ground by the 'users or all other parties or patrons of the said Foster's Grove and said Sarah E. Grant' and her successors in title in the location where it now stands intersecting the property of the defendants herein.

8. Rights of travel over the roadway were specifically reserved in the conveyance to these defendants of the second parcel acquired by them as described in Sections (8) and (9) above (of Finding No. 3.).

9. The Court finds that the conveyances to the defendants upon which they predicate their title did not grant unto them the right to the exclusive use of the subject roadway.

10. In the early 1900's 'Foster's Grove' was a well known resort area in the Town of Westmore. It was extensively used by the general public as a recreation area. Along the general location in suit there was a grocery store to the east situated between the roadway and the present location of U. S. Route 5A. Westerly of the roadway and on the Lake shore was a stone pier which was used as a landing area for a lake steamer known as the 'Keewaden' operated by one Capt. Averill. During daily excursions of the steamer it docked at the stone pier for the embarkation and debarkation of excursioners. The general public traveled on and over the roadway here in suit as a means of ingress and egress to 'Foster's Grove.'

11. The northerly entrance to the Grove was gained by traveling through the lands of the defendants Leonard's predecessors in title. The road extended southerly below the respective properties of the parties, bearing to the east and joining the main highway now U. S. Route 5A through rows of cottages. During the summer season the roadway was in constant use by teams and a stable was erected in the Grove for the stabling of horses and carriages carrying people to and from the resort area.

12. The defendants' predecessor in title, Ava L. Peene, permitted the open and continued use of the roadway through her property during the period from 1925 to the date of the conveyance to the defendants.

13. Ava L. Peene, during her ownership of the Stiles property, never laid claim to the roadway.

14. The roadway described in Paragraph 1 of these Findings is the only roadway that was generally used as a means of entering and departing from Foster's Grove at its northern area during the period from 1901 to 1935.

15. Immediately upon the acquisition of the Stiles property by the defendants Leonard and on advice of their counsel, the late Edwin A. Book of Barton, the defendants undertook to extinguish any right in the roadway through the Stiles property by adverse possession. On April 30, 1935 the defendants undertook to exclude all users of the roadway and to hold it against the world. The defendants made extensive repairs to the Stiles property and used it as a principal source of income by way of rentals to summer vacationers. In 1936 they added to their holdings by acquiring lands easterly and southerly of the property acquired from Ava Peene, encompassing an extension of the roadway from a small brook that intersects the driveway.

16. In 1937 the defendants built a cottage on this parcel referred to in the evidence as Cottage No. 14. The westerly side of this cottage was built to the edge of the roadway and the steps of the cottage abut on the driveway. Along the southerly boundary and in the vicinity of Cottage No. 14 a parking...