A. T. Davis v. Union Meeting House Society

• Decision Date: 13 January 1920
• Parties: A. T. DAVIS v. UNION MEETING HOUSE SOCIETY
• Court: Vermont Supreme Court

108 A. 704

93 Vt. 520

A. T. DAVIS v. UNION MEETING HOUSE SOCIETY

Supreme Court of Vermont

January 13, 1920

November Term, 1918.

APPEAL IN CHANCERY. Heard on bill, answer, replication, inspection of the premises, testimony of witnesses, and argument of counsel at the September Term, 1916, Washington County Stanton, Chancellor. Decree dismissing the bill with costs. The plaintiff appealed. The opinion states the case.

Decree affirmed and cause remanded.

J Ward Carver and Erwin M. Harvey for the plaintiff.

John W. Gordon for the defendant.

Present WATSON, C. J., HASELTON, POWERS, TAYLOR, and MILES, JJ.

OPINION

TAYLOR

The defendant, an unincorporated association having more than five members, brought suit against the plaintiff in trespass for wrongs alleged to have been committed on premises occupied by the defendant in the village of Marshfield. This bill was brought to determine the plaintiff's equitable rights in the premises and to restrain the defendant from prosecuting the suit at law pending the determination thereof and from further interfering therewith. The cause was fully heard by the chancellor, who rendered a decree dismissing the bill. It was first heard in this Court on appeal as though standing on a demurrer; but it was then held that the demurrer had, in the circumstances, been waived below, and that the decree appealed from was based on the findings. It was accordingly ordered that the case stand for argument on the merits. Davis v. Union Meeting House Society, 92 Vt. 402, 105 A. 29.

Plaintiff briefs two exceptions to the findings which we will first consider. He requested, in substance, that the chancellor find and report that the use of a certain portion of the land in question now occupied by him and the right to cross other parts of the land to reach the highway had for about forty years been under a claim of right on the part of himself and his grantors and the possession thereof "positively and essentially adverse." As to the land occupied by the plaintiff, the chancellor finds that at some time, at least sixty years ago, a building had been erected on the meeting house lot near the rear thereof and abutting on the land now owned by the plaintiff, the entrance to which was from the plaintiff's land; that this building was used by the plaintiff and his father before him for various storage purposes and at some time as a hoghouse. It was commonly called the "swillhouse." It was torn down in 1910. In September, 1914, the plaintiff erected a larger building for a garage covering in part the land occupied by the swillhouse and extending westerly onto his own land. There is no finding as to how the swillhouse came to be erected on the meeting house lot and no finding as to the character of the occupancy. Concerning the claimed right to cross the lot the chancellor finds that, so far as appeared, the land had been unfenced, except that next to the plaintiff's land there were three stone posts on which was a railing where teams were hitched by anybody who chose to do so; that anybody that desired to cross the meeting-house lot did so at pleasure; that this privilege was exercised by the plaintiff and his predecessors for at least sixty years; and that the use was open, notorious, continuous, and permissive. The chancellor states that he does not find that the use was under "an expressly asserted claim of right."

The plaintiff excepted to the failure of the court to find as requested "and to the facts as found." In his brief he complains only of the failure of the chancellor to comply with his request in respect to the use and occupancy of the ground formerly occupied by the swillhouse; but he does not call attention to any evidence justifying the requested finding. We do not search the transcript, though it is referred to, to see whether there was evidence on which the chancellor should have complied with the request, but will assume, the contrary not being made to appear, that the chancellor was justified in denying it. Gordon v. Deavitt, 85 Vt. 338, 81 A. 1128; Drown v. Oderkirk, 89 Vt. 484, 96 A. 11.

The plaintiff improved as a witness H. S. Carpenter, and showed by him that he had lived in Middlesex (probably meant for Marshfield) the most of his life; that his father was James Carpenter; that he thought his father was at some time a pewholder in the Union Church, but was not certain; that he was present some of the time when a certain addition to the church was being built; that his father furnished some of the lumber that went into the addition; that the witness, his father, and his brother assisted about the work. He was then asked: "At the time this addition was built, did you hear your father make any statement with reference to an arrangement which the Society had with Mr. Davis in regard to the exchange of land?" It was objected that no foundation had been laid for such evidence--that the statement of a landowner could not be "put in" under the circumstances shown. The chancellor ruled that the statement itself was not admissible, but received the answer to the question, which was in the affirmative. Plaintiff's counsel then said, "As I understand the court, my further offer the court excludes," and being so informed, he asked and was allowed an exception. No offer was made, and so no question was saved. But if we were to assume that the chancellor treated what was said as an offer to show plaintiff's claimed arrangement in regard to the exchange of land by the admission of one of the pewholders of the Society, the result would be the same. If James Carpenter was at the time of speaking a pewholder, which seems to have been open to question, he was no more than a tenant in common with the other pewholders, so far as his interest in the land in question was concerned. His declaration in the nature of an admission, not made in the presence and hearing of his cotenants, would not be admissible in evidence. The necessary identity of interest was wanting to make such a declaration admissible. Pope v. Hogan, 92 Vt. 250, 256, 102 A. 937; Blondin v. Brooks, 83 Vt. 472, 481, 76 A. 184.

We come to the consideration of the case as left by the findings. The Union Meeting House Society was organized in 1826 for the purpose of building a meeting-house in the village of Marshfield. The house was erected in 1827 on land situated on the southerly side of Main Street and then owned by Truman Pitkin, one of the members of the association. December 10, 1829, Pitkin conveyed the lot on which the meeting-house stood to one Silas Jacobs in trust for the Society, "their heirs and assigns forever." The record title to the land is still in Jacobs, who has been dead many years. The plaintiff owns the land adjoining the meeting-house lot on the west and south through successive conveyances from Pitkin, which he occupies as a house lot. George O. Davis, the plaintiff's father, acquired the title thereto in 1852 and occupied the premises until his death in 1906. The plaintiff acquired the title before the death of his father, since which time he has been in possession. The building erected in 1827 is still standing, though it has undergone some alterations. It has been raised, lengthened, and set back from the street. As remodeled there is a basement or vestry below and a room above used for religious purposes, fitted with pews, pulpit, and gallery. Regular church services were held in this room until about twenty years ago, and since then they have been held there for a few weeks each summer until the summer of 1914. The Society has preserved its organization, kept the building in repair, and raised money by a tax on the pewholders to defray expenses.

In 1879 the Ladies' Social Circle, an organization independent of the Meeting House Society and composed of ladies who were endeavoring to assist in matters pertaining to the Society and its work, built an annex to the basement of the church to furnish room for a stage to be used in connection with the basement for entertainment purposes. The Society consented to this being done by the Social Circle, but without incurring liability for the expense. The ladies secured the funds to build the annex by subscription, to which some of the pewholders contributed. The Social Circle assisted in raising money to pay for preaching and for...