the Cutler Company v. Herbert G. Barber

• Decision Date: 11 October 1919
• Citation: the Cutler Company v. Herbert G. Barber, 108 A. 400, 93 Vt. 468 (Vt. 1919)
• Parties: THE CUTLER COMPANY v. HERBERT G. BARBER
• Court: Vermont Supreme Court

108 A. 400

93 Vt. 468

THE CUTLER COMPANY v. HERBERT G. BARBER

Supreme Court of Vermont

October 11, 1919

May Term, 1919.

APPEAL IN CHANCERY. Heard on bill, answer, replication, and facts found by the Chancellor, at the September Term, 1915, Windham Count, Butler, Chancellor. Decree for the defendant dismissing the bill with costs. The plaintiff appealed. The opinion states the case.

The decree is altered so as to read as follows: It is adjudged and decreed that the division line between the land of the plaintiff and that part of the defendant's land known as the Judge lot is two feet east of the easterly face of the foundation wall of the plaintiff's building. Bill dismissed with costs to the defendant. And, being so altered the decree is affirmed.

This alteration eliminates the element of easement from the decree, and substantially changes the location of the division line from the location fixed by the decree of the lower court, all in the plaintiff's favor: therefore let it recover its costs in this Court.

O B. Hughes, A. F. Schwenk and W. R. Daley for the plaintiff.

Robert C. Bacon and Frank E. Barber for the defendant.

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

OPINION

SLACK

The plaintiff seeks to enjoin the defendant from erecting a building on land it claims to own, and to have removed a cloud to its title to the same land. The defendant admits by his answer that he intends to erect a building on the land in controversy, but denies that the plaintiff owns the same, and alleges that he owns it. A replication was filed, and the case was heard on its merits by a chancellor. From the findings made by him, it appears that the land of the plaintiff is immediately west of the land of the defendant. Both lots were formerly owned by Goodhue, and constituted a single tract, described in the deed under which he acquired title as follows: "Also one other tract of land called The Garden' lying on the west side of said road, beginning at a white oak tree at the corner of the road leading to the tanyard; from thence westerly on said road about 9 rods to the corner of Elihu Hotchkiss' garden; thence northerly on the east line of said garden to Samuel Elliot's south line at the foot of the hill; thence easterly on said Elliot's line to the public road; thence southerly on said road to the place of beginning, containing about 71 rods of land. "

The public road mentioned in this deed is Main Street, and bounds the tract on the east. The road leading to the tanyard is Flat Street, and bounds the tract on the south. In 1835 Goodhue sold a strip off the west end of this lot, forty feet wide, extending entirely across the lot. This is the land owned by the plaintiff. Goodhue sold the south part of the land he still owned to one Ray, in 1868. This tract is known as the "Ray" lot and is now owned by the defendant. In 1911 the defendant acquired title from the Judge estate to the north part of the land owned by Goodhue after he sold the strip off the west end. This tract is referred to as the "Judge Property." It is the line between this part of the defendant's land and the land of the plaintiff that is in controversy. At the time this suit was commenced, there was a building on the plaintiff's land and one on the Ray lot, about twelve feet apart, both fronting on Flat Street. The plaintiff claims that its east line is the face of the west side of the building on the Ray lot, and that it continues northerly, on the same course, from that building, to the west line of land owned by Lucy Cox, which is located north of the Judge property, thus forming the west bound of the Judge lot. The defendant claims that the west bound of the Judge lot is correctly described in his deed thereof as follows: "Bounded north by the land of Lucy Cox, east by Main Street, south by land of Herbert G. Barber, and west by a line two feet easterly of the foundation wall of the building of the Valley Grain Company and parallel with said wall. And being all and the same premises conveyed to the deceased (Thomas Judge) by Wells Goodhue and Francis Goodhue by deed dated November 17, 1896 and recorded in Book W, page 211, Brattleboro Land Records."

In the deed therein referred to, this land is described as bounded on the west by land of William Holding, then owner of the plaintiff's land. The defendant insists that under this deed his land extends to the land formerly owned by Holding, and that his west line is about two feet west of the east wall of the plaintiff's building. The Valley Grain Company building, mentioned in the Barber deed, is the building on the plaintiff's land already mentioned.

During the hearing of the case on the merits, the plaintiff took exceptions to the rulings of the chancellor on questions relating to the admissibility of evidence, but the record does not show that exceptions were taken to the findings because of such rulings, and therefore these questions are not before us. G. L. 1520; Vermont Marble Co. v. Eastman et al., 91 Vt. 425, 101 A. 151; Osha v. Higgins, 90 Vt. 130, 96 A. 700; Hooker, Corser & Mitchell v. Hooker, 89 Vt. 383, 95 A. 649.

Whether this law is affected by the change in the statute (G. L. 1511; P. S. 1253) it is not necessary to consider, because this case came to this Court before the change. It appears, too, from the files in the case that the decretal order, from which this appeal was taken, was filed November 5, 1915; the plaintiff's motion for an appeal was filed November 13th, and the exceptions certified by the chancellor, which relate to the admission of evidence during the hearing before him, were not filed until January 25, 1916. Clearly this was not a compliance with either the present or the former statute.

The plaintiff filed certain exceptions to the findings of fact. The merit of these exceptions can be determined only by an examination of the evidence which is not before us for this purpose. The only reference to the evidence that appears in the record is in the chancellor's report of the plaintiff's exceptions taken during the hearing, to the admission and exclusion of evidence, where he says: "The reporter's transcript of the evidence, is referred to and may be a part hereof and shall be controlling, but need not be printed." The use of the transcript is thus limited to the examination of the questions raised during the hearing on the merits, and it is not here for the purpose of testing the exceptions to the findings. Fraser v. Nerney et al., 89 Vt. 257, 95 A. 501; County of Bennington v. Manchester, 87 Vt. 555, 90 A. 502; Thompson-Starrett Co. v. Ellis Granite Co., 86 Vt. 282, 84 A. 1017; Roach v. Caldbeck, 64 Vt. 593, 24 A. 989; Lynch, Admr. v. C. V. Ry. Co., 89 Vt. 363, 95 A. 683; Barber v. Bailey, 86 Vt. 219, 84 A. 608, 44 L.R.A. (N.S.) 98. These exceptions are not considered.

The plaintiff's seventh exception to the findings was to the neglect of the chancellor to report such testimony as requested. It is enough to say that the record fails to show what the request was, or, indeed, that there was a request; so no question was saved. We must assume, therefore, that the findings are supported by the evidence. Fraser v. Nerney, supra.

It remains to consider whether the decree is supported by the pleadings and findings. The material part of the decree is "that the orator has no right, title, interest, or easement in the strip of land twelve feet wide north of the Ray property so called, bounded westerly by the orator's buildings and described in its bill of complaint, easterly of the line of the easterly face of the foundation wall of the said four-story building mentioned therein and known as the Valley Grain Company Buildings, as it now stands, extending northerly to what was formerly land of Samuel Elliot, " etc.

The plaintiff insists that the question of easement was not in the case, and therefore should not have been included in the decree. The decree must conform to the pleadings and findings. Osha v. Higgins, supra; 10 R. C L. 338, and cases there cited. No issue was raised by the pleadings that involved this question, and "the sole question in controversy," says the chancellor in the first paragraph of his findings, "is the location of the true division line between the orator's land conveyed to it by Henry R. Brown and wife * * * and that portion of the defendant's land known as the Judge Property," etc. While the findings disclose that the plaintiff introduced evidence tending to show its use of the land east of its building, its purpose in so doing was clearly stated, and must have been understood by the chancellor and the defendant throughout the hearing. We quote again from the findings: "The orator did not claim title or right by adverse user, but relies upon its record title, and the evidence of user, as tending to establish the location of the true line described in the deed and so announced at the outset of the hearing, on being interrogated as to his claim by the...