Stockwell v. Fitzgerald

• Decision Date: 26 October 1898
• Parties: STOCKWELL v. FITZGERALD et al.
• Court: Vermont Supreme Court

41 A. 504

70 Vt. 468

STOCKWELL

v. FITZGERALD et al.

Supreme Court of Vermont. Bennington.

Oct. 26, 1898.

Appeal in chancery, Bennington county; Taft, Chancellor.

Bill by William H. Stockwell against James H. Fitzgerald and others to maintain a right of way. From a decree dismissing the bill, orator appeals. Reversed.

W. B. Sheldon, for appellant.

Batchelder & Bates, for appellees.

MUNSON, J. In July, 1871, Abram N. Pruyn was the owner of a tract of land, which was subject to a mortgage, executed to one Sumner, and then held by I. F. Paddock. This tract was partially bounded on the south by a highway, and was not elsewhere accessible from a highway. On the 28th of the month, in anticipation of a division of the tract among different purchasers, Pruyn had a road, two rods wide, surveyed through it from the highway by one Edward Rice. On the 1st day of April, 1872, he conveyed three parcels of the tract by separate deeds, which contained grants or reservations based on this survey. One was a conveyance to John H. McKinty of a parcel which included all of the tract contiguous to the highway, and which reserved for a road to premises sold to Aaron R. Moon a strip two rods wide across the premises described, as the same had been surveyed by Rice. Another deed conveyed to Aaron R. Moon a parcel adjoining McKinty's lot on the north, excepting a strip two rods wide across the premises described, as the same had been surveyed by Rice, to be used as a road to other lands of the grantor lying further north. The remaining deed conveyed to Gilbert W. Pruyn a parcel of the land further north, reserving a strip two rods wide through the premises described, as surveyed by Rice, for a highway to lands beyond, and granting a right of way through lands before deeded to Moon and McKinty where the road then ran to the main road. The orator is now the owner of the land conveyed to Moon, and of other parcels of the tract above described. The defendant Fitzgerald is the owner of that portion of the McKinty purchase which lies east of the road in question. When McKinty received his deed, he executed to Pruyn a mortgage of the land conveyed, and this mortgage was soon after assigned to Pad dock. October 22, 1873, McKinty gave to Edward, John, and Catherine Fitzgerald, executors of Michael Fitzgerald, a mortgage in usual form of that part of his land west of the road that was adjacent to the highway, making the easterly line of the land mortgaged "the center of a private passageway used for houses further north," and conveying "subject to right of way one rod wide across the north and east sides of the lot." This is the piece set up in the bill as occupied and claimed by the widow and heirs of Patrick Morrissey. April 1, 1874, McKinty conveyed by warranty deed to Margaret Jones the remainder of his purchase lying west of the road, making the west side of the road the easterly bound of the land conveyed. May 26, 1874, Paddock executed to McKinty a quitclaim of that part of his purchase lying west of the road, bounding it on the east "by the road leading northerly" from the highway. July 10, 1876, McKinty conveyed to John and Edmund Fitzgerald, by quitclaim, the land before mortgaged to the executors of Michael Fitzgerald; but the terms of the description do not appear. Paddock obtained a decree on the Sumner mortgage at the June term, 1875, and a decree on the McKinty mortgage at the December term, 1881. The equity of the last foreclosure expired in January, 1883. On the 2d of April, 1883, Paddock conveyed the McKinty premises by quitclaim to Mary A. McKinty, the wife of John H. McKinty, bounding them on the west "by the lane leading northerly" from the highway. March 21, 1884, McKinty and his wife conveyed the premises to the defendant Fitzgerald, describing them as bounded on the west "by a lane running from the highway" to lands of the orator. In February, 1874, John H. McKinty obtained from Abram N. Pruyn a quitclaim deed of all the grantor then owned of the entire tract before described as having been held by him in July, 1871. November 25, 1884, McKinty and wife conveyed to one Catherine McCabe, by warranty deed, the road as surveyed by Rice, reserving the rights of way of the orator, Margaret Jones, and the Harney estate; and October 15, 1886, Catherine McCabe executed to the orator a warranty deed of the same two-rod strip, with a reservation of the same rights. On the 13th of April, 1877, Paddock conveyed to the orator certain parcels of this tract, with the appurtenances, which parcels were accessible from the highway only by means of this road. April 10, 1889, Paddock quitclaimed to the orator a strip of land two rods wide extending from the main highway through lands formerly owned by Abram N. Pruyn, with a statement, of the grantor's intention to convey his right to the lands in and over which the grantee, the heirs of Thomas Harney, and the Widow Jones had a right of way as appurtenant to lands owned and occupied by them, respectively, through, across, and over lands formerly owned by the said Abram N. Pruyn, to the highway. Paddock never claimed nor exercised any rights in the road as surveyed by Rice, adverse to the right of the orator or other owners of the land for whose benefit the road was surveyed. The survey of the road in question was never placed upon record. The year McKinty took his deed he procured from Rice a copy of the survey, and a map showing its exact location. He went into possession of the lot about the time of his purchase. The travel was not confined to any particular route until the summer of 1874, when McKinty inclosed his land by a permanent fence. This was built further west than the east line of the road as surveyed by Rice, and was so built by the permission of Moon. In 1879, McKinty rebuilt a southerly part of the fence, carrying it still further west. He never...