Town of Putney v. Town of Brookline

• Decision Date: 05 January 1967
• Docket Number: No. 1196,1196
• Citation: 126 Vt. 194,225 A.2d 388
• Court: Vermont Supreme Court
• Parties: TOWN OF PUTNEY v. TOWN OF BROOKLINE.

Page 388

225 A.2d 388

126 Vt. 194

TOWN OF PUTNEY v. TOWN OF BROOKLINE.

No. 1196.

Supreme Court of Vermont.

Jan. 5, 1967.

John S. Burgess, brattleboro, for plaintiff.

Kristensen, Cummings & Price, Brattleboro, and Clair V. Johnson, Newfane, for defendant.

Before HOLDEN, C. J., and SHANGRAW, BARNEY and SMITH, JJ.

HOLDEN, Chief Justice.

In July 1959 the selectmen of Brookline petitioned the Windham County Court to locate the division line between the towns of Brookline and Putney as provided in 24 V.S.A. § 1461:

'When the selectmen of adjoining towns are unable to agree as to the location of a town line, one of the board of selectment may bring a petition to the county court for the appointment of commissioners to locate such line. The court shall appoint three disinterested persons as commissioners, at least one of whom shall be a practical and competent surveyor.'

The action advanced to the appointment of commissioners. The cause was not heard nor reported by the commissioners for the reason that a stipulation, signed by the selectmen of both towns, was submitted to the court. This agreement states:

'It is hereby stipulated by and between the Selectmen of the Towns of Brookline and Putney as follows:

1. That the facts set forth in the Petition now on file in said cause are true and that the line between the two towns was established by the Acts of the Legislature of the State of Vermont, dated October 30th, 1794 and modified by the Act of October 25th, 1804, all as set forth in the Petition in said cause.

2. That the following description concisely sets forth the line that was established by said Acts:

'Beginning at a stake and stones 44 rods West of Westminster Southwest corner; thence running South 17 degrees West, 324 rods; thence South 47 degrees West, 32 rods; thence South 27 degrees West, 57 rods; thence South 20 degrees West, to the North line of Lot No. 8 of the 14th Range of 100-acre lots laid out in the Town of Putney prior to the aforesaid Act of 1794; thence Westwardly on said North line of said Lot No. 8, to the line established by the Act of 1794 as running to the Southwest corner of said lot; thence down said established line to said corner, which is located on the range line between the 14th and the 15th Ranges; thence Southwardly on said range line, to the Dummerston line.'

3. That the Northern part of said line Southerly to the Putney Mountain Road, so-called, has been surveyed and located and that only the Southern part of the line from said road to the Dummerston Town Line is in controversy and should be surveyed and located.'

On the strength of this agreement the county court issued an order which adopted the facts set forth in the stipulation as its findings. The order also provided the means for carrying the agreement into effect, including the survey and marking of the division line.

On November 27, 1961 the Windham County Court rendered judgment. The judgment order recites:

'Upon consideration of the report made to this Court by Edwin W. Culver, surveyor, selected by the Selectmen of the towns of Brookline and Putney, who, with the assistance of the members of the Board of Selectmen of said towns, surveyed the line between the Town of Brookline and the Town of Putney, taking into consideration the change in the magnetic deviation from 1804 to the present time, and upon consideration of the representations of counsel and the Order filed in this cause on the 5th day of September, 1961, this Court renders judgment to be recorded in each of the towns that the true line between said towns as surveyed and reported to this Court by said Edwin W. Culver, surveyor, * * *.'

The judgment order continues with the surveyor's description of the division line by metes and bounds in stated compass courses and distances to specified monuments from the north line of the Town of Putney to its southwest corner and the southeast corner of the Town of Brookline.

In June 1963 the present proceedings were instituted (Windham County Court Docket No. 10448) by one of the selectment of the Town of Putney. As with the prior proceeding, this petition is based under 24 V.S.A. § 1461. Referring to the earlier action, it alleges that the description of the southerly end of the line lying between the two towns was incorrectly stated in the stipulation filed in the former case. It alleges that the incorrect statement, arising through either accident or mistake, did not in fact follow the description as set forth in the Act of 1804 and the Act of 1794. The petition prays for the appointment of commissioners to make recommendations as to where the southerly portion of the line between the towns of Putney and Brookline be established and marked and to report its findings to the court.

The defendant Town of Brookline in its answer denied any accident or mistake in the judgment order of 1961. The defendant's answer affirmatively pleads the prior judgment as res judicata.

On this state of the proceedings the parties agreed that the cause should be left with the court to determine the following question:

'Whether the Judgment Order of November 30, 1961 (Town of Brookline vs. Town of Putney, Windham County Court, Docket No. 9459) relating to the boundary line as therein described, is void or voidable as a matter of law because of the lack of power of authority of the Selectmen of the Towns of Putney and Brookline to agree as to the location of the statutory or charter line between said towns, and that said Judgment Order ought to be set aside or vacated for the aforesaid reason.'

Upon consideration of the pleadings and files in the prior proceeding, as well as in the instant case, the court recognized the parties and issues were identical with those of the prior action. However, it determined that the boundary between the towns, as set forth in the statutes of 1794 and 1804, did not conform with the division line described in the stipulation and judgment entered in 1961.

The court determined that the description in the stipulated judgment was the 'result of an act or mistake on the part of the parties to this action.' An interlocutory order was filed November 1, 1965, which vacated the survey and judgment orders of 1961. The parties were directed to proceed to locate the boundary under 24 V.S.A. §§ 1461-1463. The defendant seeks review of this ruling before proceeding further under the statute as directed in the order.

The plaintiff would foreclose this appeal on the contention that this ruling was a final order and the time for taking an appeal has expired. The order appealed from is in no sense a final judgment. It did not conclude the controversy. Had no appeal been taken, the present action would not have passed out of court. Beam v. Fish, 105 Vt. 96, 97, 163 A. 591; Appliance Acceptance Co. v. Raymond, 121 Vt. 153, 155, 151 A.2d 316. To the contrary, the ruling opened the door to relitigation of issues that were the subject of the prior proceedings. If permission to appeal had been withheld the cause would have remained in the county court for further hearings under the statute upon which the action was founded. Before the time for appealing from the ruling had expired, under Supreme Court Rule 2A, the defendant requested reconsideration and revision of the order of November 1. Accordingly, the court suspended the order and specifically extended the time for taking an appeal until the court ruled on this request.

The request was denied and the order of November 1 reinstated. Exceptions to the defendant were granted 'with the right to appeal this Court's ruling to the Supreme Court.' This order dated December 29, 1965, was signed by the full Court.

On January 9, 1966, the defendant filed its notice of appeal under 12 V.S.A. § 2386. We suspended consideration of the appeal because of improper certification of the questions of law by the presiding judge alone, since Rule 2A requires certification by the court.

This procedural defect has since been cured. However, after argument and the amended certification, the plaintiff moved to dismiss the appeal, contending that it was not afforded a hearing on the permissive action of the lower court which passed the case here before final judgment.

12 V.S.A. § 2386 requires a discretionary ruling by the court below to enable this Court to review the interlocutory order. Brown v. Brown, 121 Vt. 283, 284, 155 A.2d 748. Unlike the Brown case, however, no jurisdictional question is involved, since express permission to appeal was granted by the order of the Windham County Court dated December 29, 1965. We must presume the lower court exercised its discretion in the matter since the statute required it. Belock v. State Mutual Fire Insurance Co., 106 Vt. 435, 444, 175 A. 19.

If the plaintiff was aggrieved by the order allowing the interlocutory appeal, it should have made known its objection at the time permission was granted. Had a hearing been requested, certainly the lower court had the duty to hear the plaintiff on the point. This is equivalent protection to that which is available on request where permission to appeal is denied. See Lyons v. Ross, 124 Vt. 86, 87, 196 A.2d 576.

But the record here makes it entirely clear that intermediate review of the lower court's ruling on the stipulated question of law was contemplated. The court preserved that right in its orders of November 12 and December 29, 1965. Yet no objection was asserted by the plaintiff. We will not entertain such a protest now.

Seven separate questions have been certified by the lower court. All are controlled by ascertaining the power of the lower court to vacate its prior judgment of 1961.

Although the lower court held this judgment to be the 'result of mutual mistake, law, fact or accident,' these issues were not properly before the court. They were not included in the question submitted to the lower court for decision under the stipulation upon which the court purported to act....