Sherman v. Goloskie

• Decision Date: 11 February 1963
• Docket Number: Nos. 3017,3018,s. 3017
• Citation: 95 R.I. 457,188 A.2d 79
• Parties: Grover A. SHERMAN et al. v. Theodore F. GOLOSKIE et al. Theodore F. GOLOSKIE et al. v. Grover A. SHERMAN et al. Equity
• Court: Rhode Island Supreme Court

Page 79

188 A.2d 79

95 R.I. 457

Grover A. SHERMAN et al. v. Theodore F. GOLOSKIE et al.

Theodore F. GOLOSKIE et al. v. Grover A. SHERMAN et al.

Equity Nos. 3017, 3018.

Supreme Court of Rhode Island.

Feb. 11, 1963.

Max Levin, Providence, for appellants Theodore F. Goloskie and others.

Higgins, Cavanagh & Cooney, John P. Cooney, Jr., John P. Cooney III, Providence, for appellees Grover A. Sherman and others.

ROBERTS, Justice.

These are two suits in equity brought to enjoin the respondents named therein from trespassing on certain land lying along the westerly shore of a body of water known as the Ponagansett Reservoir located in the town of Glocester. The first suit was brought by Grover A. Sherman and others as complainants, who averred therein that record title to the land was in them. The respondents therein, Theodore F. Goloskie and others, by way of answer and cross-bill denied title in the complainants and claimed title in themselves by reason of adverse possession. The second suit was brought by said Theodore F. Goloskie, a respondent in the first suit, who averred therein his ownership of land which included the land referred to in the original bill. The suits were heard together by a justice of the superior court sitting in equity, who thereafter found that complainant Sherman had acquired title to the land set out in his bill by deed in 1959 and that Goloskie, a respondent therein, had failed to establish adverse possession sufficient to establish his title thereto. In the second suit the trial justice found that Goloskie, as the complainant, had likewise failed to establish title by adverse possession. A decree was thereafter entered in each suit. In the first suit the prayer of complainants for injunctive relief was granted and the cross-bill was denied and dismissed. The decree entered in the second suit denied and dismissed the bill of complaint. An appeal has been prosecuted from the decree entered in each case by Goloskie, who will hereinafter be referred to as the appellant.

There is in evidence a deed dated February 16, 1959 executed by Clarence Smith and his wife, which purports to convey to Grover A. Sherman and his wife a parcel of land in the town of Glocester described therein by metes and bounds and identified as the 'Potter Lot.' The record also includes testimony of Grover A. Sherman, hereinafter referred to as the appellee, as well as the testimony of other witnesses, among the latter being a surveyor and an expert in the examination of land titles. The substance of their testimony is that the land that is conveyed in the deed to which reference is made above is located in the town of Glocester along the westerly shore of the Ponagansett Reservoir and lying south of and bounded on the north by Snake Hill Road and bounded, in part at least, on the west by a road identified as Dark Swamp Road.

In his bill of complaint appellant alleges that he is the owner of a parcel of land which he describes therein by metes and bounds. He further alleges that this land lies to the south of Snake Hill Road and along the westerly shore of the Ponagansett Reservoir and that it is bounded on the west by the Dark Swamp Road. The appellant contends both in his bill of complaint and in the cross-bill that the land which is described in appellee's bill of complaint as having been conveyed to him by Smith is not land that lies to the south of Snake Hill Road and between the reservoir and Dark Swamp Road. He further alleges in the alternate that if the deed does refer to such land, he, appellant, had acquired title thereto by adverse possession.

The deed from Smith to Sherman is ambiguous in that it does not reveal clearly that the Potter Lot, which it purports to convey by metes and bounds, lies to the south of Snake Hill Road and west of the reservoir. Where a deed is ambiguous in this respect, it is settled that the location of the premises to which the deed refers may be shown by extrinsic evidence. In Hofer v. Carino, 4 N.J. 244, 72 A.2d 335, in considering such a deed, it was said: '* * * and a question of location, or of the application of the grant to its proper subject matter, is a question of fact to be determined by the jury by the aid of extrinsic evidence.' See Co-operative Building Bank v. Hawkins, 30 R.I. 171, 187, 73 A. 617.

The trial justice, in substance, found that the Potter Lot, to which reference is made in the Smith deed, is located to the south of Snake Hill Road, abuts on the westerly shore of the reservoir, and that record title thereto was in appellee Sherman. The appellant contends that such finding of the trial justice constituted error. We are unable to agree with this contention. The validity of appellee's title to the land that the Smith deed purports to convey is not disputed, and if it is true that the land to which that deed refers, namely, the Potter Lot, is the land south of Snake Hill Road and west of the reservoir, appellee has a good record title thereto.

As we have already noted, there is in the record evidence tending to establish the location of the Potter Lot as south of the Snake Hill Road and as included in a large parcel south of that road and west of the reservoir to which appellant claims title. Evidence adduced on behalf of appellant for the purpose of establishing the location of the Potter Lot or the land conveyed in the Smith deed as being north of Snake Hill Road is vague and confused. However, if we concede that there is some conflict in the evidence on this issue, the question then is whether the trial justice erred in finding as he did on the conflicting evidence.

It is well settled that in the trial of equity causes findings made by the trial justice therein on conflicting evidence are entitled to substantial weight and on review will not be disturbed by this court unless clearly wrong. Walther v. McOsker, 87 R.I. 386, 142 A.2d 128. It does not appear from a close examination of the record that the trial justice either overlooked or misconceived any material evidence on this issue. Such an examination has persuaded us that credibility in the instant situation is important. Here the evidence is being adduced to locate a particular parcel of land in a sparsely settled and heavily wooded rural area. The weight to be given testimony on this issue would depend in great measure on the opportunity of the witnesses to have acquired knowledge as to the location of the Potter Lot. In this respect the trial justice had the advantage of seeing and hearing the witnesses and of evaluating credibility and entitlement to weight. We do not have that advantage and, therefore, in all the circumstances are constrained to conclude that the trial justice was not clearly wrong. Graziano v. Graziano, 81 R.I. 215, 101 A.2d 243.

The appellant contends also that the trial justice erred in finding that he had not acquired title to the land under consideration by adverse possession as is provided for in G.L.1956, § 34-7-1. The trial justice, in substance at least, made two findings as to appellant's failure to establish that he had acquired title to such land by adverse possession. In the cause in which appellee Sherman was complainant, the trial justice's finding of a failure to establish acquisition of title by adverse possession had application only to that land described as the Potter Lot, which was the parcel that constituted the subject matter of that bill.

The question of his acquiring title to the Potter Lot by adverse possession was put into issue by appellant's answer to the bill. He attempted also, however, to put into issue in that suit his claim to have acquired title by adverse possession to land which adjoins the Potter Lot. This was an improper use of the cross-bill, the office of which is to obtain for a respondent affirmative relief in the cause stated in the original bill. Paine v. Sackett, 25 R.I. 561, 57 A. 376. In the cross-bill appellant sought to introduce a new and distinct matter that was not within the scope of the original bill and was not necessary for the making of a complete determination of the matter raised by the original bill. The new and distinct matter was the question of appellant's acquisition of title by adverse possession to land that was not included in the land set out in the original bill. See Security Trust Co. v. Cooling, 26 Del.Ch. 368, 28 A.2d 687, and McAnarney v. Lembeck, 97 N.J.Eq. 361, 127 A. 197.

The appellant, as complainant, did allege in his bill that he had acquired title by adverse possession to certain lands described therein as adjoining the Potter Lot as well as that lot. The appellee, as respondent in that suit, in his answer disclaimed any interest in the land described in that bill other than the Potter Lot. By so pleading the parties, in our opinion, framed an issue relating to appellant's claim of title to the Potter Lot by adverse possession and eliminated as an issue his claim of title by adverse possession to land outside of the Potter Lot. Courts of equity will not ordinarily undertake to try title to land on a mere claim that title thereto was acquired by adverse possession. It will sometimes, however, do this where the parties frame that precise issue and the respondent does not object. Talbot v. Town of Little Compton, 52 R.I. 280, 160 A. 466. It is our opinion that the...