Sowles v. Minot

• Decision Date: 07 September 1909
• Citation: 73 A. 1025,82 Vt. 344
• Parties: SOWLES et al. v. MINOT et al.
• Court: Vermont Supreme Court

73 A. 1025

82 Vt. 344

SOWLES et al.

v. MINOT et al.

Supreme Court of Vermont. Franklin.

Sept. 7, 1909.

[Copyrighted material omitted.]

Appeal in Chancery, Franklin County; Henry R. Start, Chancellor.

Suit by Margaret B. Sowles and others against Harriet G. Minot and others. From a pro forma decree dismissing the bill, the orators appeal. Affirmed upon stipulation.

The following is the map referred to in the opinion:

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

E. A. Sowles and Farrington & Post, for the orators.

Fuller C. Smith and C. G. Austin & Sons, for defendants.

MUNSON, J. This case was fully heard by the late Henry E. Rustedt as special master. His death occurred soon after the hearing was completed, and without a report having been filed. The testimony having been stenographically reported, the parties agreed that the case might be heard by the late Chancellor Start on the depositions, exhibits and evidence taken, and joined in a request that the chancellor inspect the premises. It was also agreed that, if either party considered further testimony necessary, such party might apply to the chancellor for permission to introduce it, and that the chancellor in his discretion might order it to be taken and prescribe the form of taking. Nothing was done under this provision; and the case was finally disposed of by Chancellor Start, then in failing health, strictly pro forma and without hearing. So the case is before us for the determination of both fact and law; and, the proposition for a view of the premises made by one party since the hearing not being acceded to by all the parties, it becomes necessary for us to settle the facts without the benefit of the inspection contemplated by the original agreement.

The bill alleges ownership of a water privilege on Fairfax Falls under deeds from Daniel Wilkins and successive grantors, concerning which it is stated that the defendants claim inaccuracies of description; and alleges that the defendants are about to destroy the power by a removal of rocks that will change the channel, and prays for an injunction in that behalf and a quieting of the orators' title. The answer denies that the title remained in Wilkins' grantees until they made conveyance, and alleges that, if the title did remain in them and pass by their conveyance, it has since been lost by adverse possession; denies that there is any inaccuracy of description in the Wilkins deed, but alleges that it is now impossible to locate the grant; denies that the defendants have made or contemplate making any change in the channel, and alleges that natural alterations in the bed of the stream have destroyed the power in question. Before taking up the orators' chain of title, it will be well to refer to some earlier conveyances. Prior to May 25, 1803, Asa Wilkins became the owner of a large tract of land which included Fairfax Falls. On that day he conveyed to Louis Sherrill a privilege on or adjoining the falls, a little above the old sawmill, for the purpose of a carding machine, with the privilege of a road to and from said machine, and the privilege of drawing what water might be necessary for carrying on the business of said machine. December 1, 1803, Asa Wilkins executed to Daniel Wilkins a warranty deed of one-third of the farm and mills. October 6, 1809, said Asa conveyed to William Crane one-half of certain carding machines, carding machine house, and road thereto, with the privilege of drawing water to carry said machines or to carry on any business that could be done in said house, the water privilege to revert if the carding machines should be removed or not kept in repair, which deed recited that the machines and house were the same built by Louis Sherrill and sold by Sherrill to the grantor. April 2, 1816, Asa Wilkins quitclaimed to Daniel Wilkins the entire tract and falls, with mills and other buildings thereon. April 10, 1816, Daniel Wilkins conveyed to William Crane a piece "beginning at a notch in the rocks at the southwest corner of the carding machine house, * * * thence north thirty three degrees east forty-four feet, thence west thirty three degrees north forty feet, thence south forty four feet, thence east thirty three degrees south thirty two feet to the first mentioned bounds," with the privilege of drawing water to carry on the business of carding wool and the clothiers' works, or water to carry on any other business drawing the same quantity as the carding and cloth dressing business. January 22, 1822, Daniel Wilkins conveyed to W. B. Parker and I. A. Webster a site for a gristmill describing it as beginning about two rods and one-half southeast from the southeast corner of the Crane mill, with the privilege of taking water from the dam.

We come now to a statement of the orators' title. January 14, 1828, Daniel Wilkins conveyed by warranty deed to David Nichols and Allen L. Nichols, for an expressed consideration of $75, property described as follows:

"Beginning northeasterly of Crane's carding works, at a rock notched N, thence southerly, or south, thirty degrees west forty feet to a cross in a rock, thence making a right angle and running westerly fourteen feet, thence making a right angle and running southerly ten feet, thence making another right angle and running easterly fifty feet, be the same more or less, to the road leading to Crane's carding works, thence on said road fifty feet to a stake and stones, from thence making a right angle and running westerly to the first mentioned bounds, with the privilege of taking and using from the flume now occupied by said Crane, or any other flume which may be there erected, sufficient water to carry two tub bellows for a blast furnace, reserving to said Crane the right of water sufficient for his carding and clothing works."

On the same day the grantees of the premises mortgaged them to the grantor to secure a promissory note for $75, to be paid in hollow ware or iron castings on or before October 1, 1829, with interest. The mortgage was recorded before the maturity of the note, and has not been discharged of record. Nothing appears regarding the payment or possession of the note. November 10, 1848. David Nichols and Allen L. Nichols quitclaimed the premises to Andrew J. Soule; the signature of David having but one witness. August 22, 1865, Soule executed to Hiram Bellows a quitclaim that was evidently intended to convey the same property. In the last two deeds the course of the first line was given as 39° west instead of 30°, and in the last deed the place of beginning was put northwesterly from Crane's mill instead of northeasterly, and the call for a right angle in running the third line was omitted. Bellows died in I876 without having conveyed the title, and the oratrix, Margaret, claims the property under his will and the will of his wife, Susan B., who died in 1880. Privileges upon the falls other than the ones above described were subsequently granted by those who took the remainder of Daniel Wilkins' right; and there have been many conveyances of the different interests, as shown by the 84 deeds introduced by the defendants. For the purposes of this inquiry, it may be assumed that all the rights, except the one claimed by the orators, are now united in the defendants by written evidences of title. It will be necessary to trace the main line of these conveyances.

January 8, 1833, Daniel Wilkins conveyed to Erastus Cross by warranty deed "one equal undivided half of 28 acres of land of the original right of Frances Panton or Fanton, which 28 acres covers the grant in Fairfax on the river Lamoille, together with the water privileges and mills thereon standing," in which deed exceptions were made of the gristmill privilege deeded to Parker and Webster, the carding and cloth dyeing privileges deeded to William Crane, and certain parcels not connected with water rights. March 12, 1833, Wilkins quitclaimed to Erastus Cross as follows: "All my right * * * in the whole of the lot of land on which I now reside, and one equal undivided half of which I conveyed to said Cross by deed * * * dated January 6, 1833, meaning hereby to convey the other equal undivided half of said lot," referring to the record of said deed for further particulars. Erastus Cross had previously become the owner of the gristmill property by deed from Isaac N. Soule dated December 8, 1832; and on the 23d of December, 1833, he quitclaimed certain land to Joseph Cross by the following description: "Being the same deeded to me by Isaac N. Soule and Daniel Wilkins A. D. 1832, also all right and title I have in a grist mill, saw mill, and shingle mill, all deeded me by said Soule and Wilkins, for a more particular description of which reference being had to said deeds." April 3, 1834, Joseph Cross quitclaimed to Erastus Cross as follows: "Being the same land mills and machinery and the whole of the estate that the said Erastus deeded to me * * * December 23, 1833"—referring to the record of said deed for a more particular description, and excepting the gristmill property and the shingle machine. On the same day Erastus Cross quitclaimed to John Warner and Silas W. Brush, describing the property as all the estate deeded him by Daniel Wilkins by his deeds of January 8 and March 12, 1833, and referring to the records. May 24, 1834, Brush quitclaimed to Warner as follows: "All the right, title and interest I have in and to * * * the Fairfax Falls, meaning hereby to convey all the land I ever owned in the town of Fairfax." October 27, 1836, William Crane quitclaimed to Warner and Brush the following: "All my right * * * in the water privilege at Wilkins Falls so-called * * * with my other privileges appertaining to said water privilege." February 3, 1840, Warner conveyed to Silas Smith property described substantially as follows: All the real estate deeded me by Erastus Cross April 3, 1834, and a certain other piece...