Turner v. Bragg

• Citation: 35 A.2d 356
• Decision Date: 04 January 1944
• Docket Number: No. 1145.,1145.
• Court: United States State Supreme Court of Vermont
• Parties: TURNER et al. v. BRAGG et al.

35 A.2d 356

TURNER et al.

v.BRAGG et al.

No. 1145.

Supreme Court of Vermont.

Oct. 5, 1943.

Rehearing Denied Jan. 4, 1944.

COPYRIGHT MATERIAL OMITTED.

Exceptions from Chancery Court, Windham County; Charles B. Adams, Chancellor.

Suit by Daisy Turner, executrix of the last will and testament of Alexander Turner, deceased, and others against Alba M. Bragg and another for an injunction restraining defendants from trespassing on plaintiffs' land. Decree for defendants, and plaintiffs bring exceptions.

Affirmed.

Before MOULTON, C. J., and SHERBURNE, BUTTLES, STURTEVANT, and JEFFORDS, JJ.

Natt L. Divoll, Jr., of Bellows Falls, and Herbert S. Avery, of Boston, Mass., for plaintiffs.

Barber & Barber, of Brattleboro, for defendants.

MOULTON, Chief Justice.

The plaintiffs are the nine daughters of Alexander Turner, deceased, residuary devisees of his estate, one of whom is the executrix of his will. The bill of complaint alleges that the defendants, Alba M. Bragg and the Bragg Lumber Corporation, have trespassed and cut timber upon certain lands, the property of the estate situated in the town of Athens, and, although warned to desist, have refused to do so and threaten to continue. The prayer is that the defendants may be enjoined from further entry upon the lands, and cutting or removing the timber thereon and for general relief. A temporary injunction was issued, which was modified by a stipulation between the parties which among other matters permitted cutting on condition that a certain sum per 1000 feet cut should be deposited in trust to await the outcome of the litigation.

Hearing was held before the Chancellor, who, after filing written findings of fact, entered a decree for the defendants to recover their costs. The plaintiffs have brought the cause to this court upon exceptions. It has been here once before upon another issue-Turner v. Bragg, 113 Vt. 156, 30 A.2d 450.

These facts have been found: Alexander Turner in his lifetime owned real estate situated in the Town of Grafton and in the Town of Athens as now constituted. At the time these towns were originally chartered and surveyed they did not abut upon each other, since there was a strip of land lying between them, known as Avery's Gore, which was not included in either. This Gore was bounded on the north by the south line of Grafton and on the south by the north line of Athens. The latter line (to which it will be necessary later to refer in the course of this opinion) is known as the Old Athens line, or the Kelly line. By Act of the Legislature in 1815 a part of the Gore was annexed to the Town of Athens thus making its north boundary to coincide with the south boundary of Grafton.

The property belonging to the Turner Estate consists of three parcels. The first of these (designated on trial as the 50 acre lot) lies in greater part at least in Grafton; the second (referred to as the 45 acre lot) is of the same width and adjoins the 50 acre lot on the south, and is situated in the present town of Athens, both of these parcels together being known as the Wilbur and White property from the names of Turner's grantors; the third known for a like reason as the Wheelock lot, adjoins the Wilbur and White lots on the east and is in the present Town of Athens.

The trespasses complained of are claimed to have been committed on the 45 acre lot and the plaintiffs rely upon their record title. The deed from Vestus A. Wilbur and Charles White to Alexander Turner, dated October 13, 1881, describes the land so conveyed as being all and the same land conveyed to the grantors by Henry A. Thompson, by deed dated February 17, 1872. The deed from Thompson to Wilbur and White describes the property as bounded “on the south by land of Tisdale Porter and C. C. Fairbanks *** meaning by these presents to convey the same and all the land described in a deed from Nathan Wheeler to Joel Smith dated March 18, 1830.” Henry Thompson derived his title from Stillman Thompson by deed dated March 2, 1871, describing the southern boundary as lands of Tisdale Porter and C. C. Fairbanks and referring to the deed from Wheeler to Smith. The WheelerSmith conveyance gives the southern boundary of the 45 acre lot as “the old Athens Line” (the Kelly line, so called). There is no finding as to the source of Stillman Thompson's title, but the Chancellor has placed the northern line of the Tisdale Porter land south of the Kelly line, thus apparently assuming that Stillman Thompson owned property as far south as the Tisdale Porter lot and Conveyed it by his deed to Henry Thompson.

Alexander Turner purchased the Wheelock lot from Henry H. Wheelock on April 7, 1884, the description being of land bounded on the north by land of Wheelock and Dexter Conant, west by land formerly of Wilbur and White and now by Alexander Turner, south by land of Butterfield and Smith and east by land of Townsend and Clark. The Clark lot is thus described in a former deed from Joseph Tinkham to Benjamin Smith, given in 1839: “Beginning at Tisdale Porter northeast corner thence north twenty rods to what is known by the name of the Kelly line thence west on said Kelly line to a small birch tree marked for a corner thence south twenty three rods to a stake and stones standing on Tisdale Porter north line thence east 3 1/2 degrees north on said Porter's line fifty rods and ten links to the place of beginninig containing six acres 115 rods of ground”.

The Townsend property lies directly east of the Clark lot and the Chancellor finds that it cannot be a part of the easterly boundary of the Wheelock lot, the deed so describing it being erroneous in this respect.

The defendant Alba M. Bragg is the owner of the Tisdale Porter land which lies south of the plaintiff's 45 acre lot (the Wilbur and White property) and is described as bounded on the north and west by the Wilbur and White land. As to the other land described as part of the southern boundary of the 45 acre lot, stated to be owned by C. C. Fairbanks, no evidence was introduced of any record title of Fairbanks to land in that locality, and the Chancellor is unable to find where it is situated.

The Chancellor viewed the premises and has found that the Kelly line is marked by a line of stone piles beginning on the easterly side of the old Athens-Grafton road, and extends westerly along the northerly boundary of the Townsend and Clark lots to and beyond a point 23 rods northerly from a stake and stones marking the southwest corner of the Clark lot. The point at which the stone piles commence at the easterly side of the road just mentioned is the northeast corner of the Townsend lot. The Wheelock lot, now owned by the plaintiffs, lies north of the Clark and Townsend lots. The Chancellor is unable to find who owns a small piece of land situated between the westerly boundary of the Clark lot and the easterly boundary of the 45 acre lot, but does find that the defendant Bragg does not own or claim to own it.

It is found that the plaintiffs own no land southerly of a line extending from the stake and stones at the southwesterly corner of the Clark lot westerly, in part along the location of an old brush fence, to a point a little southerly of the end of a wall on the westerly boundary of the 45 acre lot, and that the defendant Bragg's property does not extend northerly of this line at that location. It is also found that the defendants have not trespassed upon either the Wilbur and White lots or on the Wheelock lot.

The plaintiffs contend that the Chancellor has made findings of boundaries not involved in this litigation, having to this extent exceeded his jurisdiction, and ask that these findings may be stricken from the record. The specific findings thus attacked are concerning the southern boundary of the Wheelock lot and the southwest corner of the Clark lot; the location of the Kelly line; and that the defendants have not trespassed upon the Wheelock lot. The basis for the claim is that since the cutting sought to be enjoined is alleged to be on that part of the Wilbur and White property known as the 45 acre lot, the boundary between that lot and the Tisdale Porter property, now owned by the defendant Bragg, is the only line in issue.

It is true, that in the absence of some ground for injunctive relief such as irreparable damage or threatened trespasses, “it is not the business of equity to try titles to real estate, and the existence of a dispute as to the boundary between adjoining lands does not alone afford sufficient ground for a court of equity to ascertain and fix the boundary.” Aguirre v. Aja, 113 Vt. 123, 124, 30 A.2d 88, 89; Watkins v. Childs, 79 Vt. 234, 236, 65 A. 81. But this principle does not preclude the court from finding such lines and landmarks relating to adjacent property as have a bearing upon the disputed boundary. In this case the location of the Kelly line and the southwest corner of the Clark lot were material to the ultimate finding of the boundary in issue. The surveys of both plaintiffs and defendants agreed in making the Kelly line the northern boundary of the Clark lot, the controversy being as to its location on the ground. The southwest corner of this lot is found to be 23 rods south of the Kelly line, as called for in the deed, and to be indicated by a monument, from which a line drawn westward, in part along the remains of an old fence, is the limit north of which the defendant's property does not extend. We see no impropriety in these findings which are of subordinate facts upon which the Chancellor has rested his ultimate finding. The extent to which such subordinate facts may be reported lies in the sound discretion of the trial court. Waterman v. Moody, 92 Vt. 218, 235, 103 A. 325. It is, on the whole, the better practice to report them. Allen's Adm'r v. Allen's Adm'rs, 79 Vt. 173, 186, 64 A. 1110; Winship v. Waterman, 56 Vt. 181, 185.

But there is no claim of threatened trespasses upon the Wheelock lot and no...