Turner v. Bragg, 1181

• Decision Date: 02 October 1951
• Docket Number: No. 1181,1181
• Citation: 83 A.2d 511,117 Vt. 9
• Court: Vermont Supreme Court
• Parties: TURNER v. BRAGG et al.

Page 511

83 A.2d 511

117 Vt. 9

TURNER v. BRAGG et al.

No. 1181.

Supreme Court of Vermont.

Oct. 2, 1951.

Irwin S. Kendall, Brattleboro, Herbert Avery, Boston, Mass., Bove, Billado & Dick, Rutland, on the brief, for plaintiff.

William R. Daley and Gibson & Crispe, all of Brattleboro, for defendants.

Before SHERBURNE, C. J., and JEFFORDS and CLEARY, JJ.

JEFFORDS, Justice.

This is an action of trespass. An answer was filed which contained a general denial and a special plea alleging that certain facts had been determined in a prior chancery suit between the same parties and that the adjudication of these facts is conclusive of the same facts in the present case. A verdict was directed for the defendants and the case is here on exceptions of the plaintiff.

The trespass here claimed is on a certain parcel of land owned by the plaintiff and known as the Wheelock lot. In order to fully understand the factual situation here presented it is necessary to read the opinion in the chancery suit above referred to reported in 113 Vt. 393, 35 A.2d 356. In that case the chancellor made findings as to certain boundaries of lots shown on an exhibit, defendants' G. The trespass complained of in that suit related to a piece of land owned by the present plaintiff and known as the 45 acre lot. Certain findings in that case were made which related to the Wheelock lot. The present case has been here once before, see 115 Vt. 196, 55 A.2d 268. At that time the defendants filed a plea of res adjudicata based on the decision in 113 Vt. 393, 35 A.2d 356. This plea was overruled below and that ruling was here affirmed.

After the jury had been impaneled in the case at bar, counsel for the plaintiff made an extended statement setting forth what was proposed to be shown in support of the plaintiff's case. Then followed a long discussion between the court and counsel for both parties relating largely to the question of whether the findings referred to in the opinion in 113 Vt. 393, 35 A.2d 356, were binding in the present case as boundaries of the Wheelock lot.

The trial court then made the following statement: 'Defendant's motion for judgment is denied and they are allowed Exceptions on each and every ground stated. The Court does rule that the parties to Turner v. Bragg, No. 833 in Chancery, and the present case are identical; that the location of the Kelly line, the location of the southwest corner of the Clark lot so-called and the location of the northerly boundary of the Bragg property were material issues in the Chancery case No. 833 and were decided in that case and that the location of the Kelly line and location of the southwest corner of the Clark lot so-called and the northerly line of the Bragg property are as appears on Def. G in the Chancery case, the Kelly line being marked by the letter K, the southwest corner of the Clark lot being marked by the letter F and the northerly boundary of the Bragg property being marked by the letters E. N. G. and plaintiff is allowed Exceptions to the ruling. That, gentlemen, gets us down to the point where the issues in this case are: 1. The title to the property lying westerly of the Clark lot and northerly of the Bragg lot and easterly of the, what is designated as Turner 145 a on Def. G.'

Counsel for the plaintiff then stated, in effect, that under this ruling the court might as well direct a verdict for the defendants. This the court did and an exception was allowed the plaintiff, both to the ruling and to the direction of a verdict.

Although we stated in the opinion in 113 Vt. 393, 35 A.2d 356, that the present trespass action had nothing to do with the chancery case then under consideration and we quoted this statement with approval in the opinion in 115 Vt. 196, 55 A.2d 268, the defendants insist that they are entitled to the benefit of an estoppel as set forth in their special plea as to the boundaries referred to in the ruling of the court below. The distinction between a former judgment as a bar to a subsequent action under a plea of res adjudicata, as was the case in 115 Vt. 196, 55 A.2d 268, and an estoppel by verdict or findings, such as here pleaded, is well set forth in Fletcher v. Perry, 104 Vt. 229, 231, 232, 158 A. 679. The rule in the latter matter has recently been stated in Gilman v. Gilman, 115 Vt. 49, at page 52, 51 A.2d 46, at page 48, as follows: 'when some...