Vermont Shopping Center, Inc. v. Pettengill

• Decision Date: 01 June 1965
• Docket Number: No. 312,312
• Citation: 211 A.2d 183,125 Vt. 145
• Court: Vermont Supreme Court
• Parties: VERMONT SHOPPING CENTER, INC. v. Ned H. PETTENGILL et al.

Page 183

211 A.2d 183

125 Vt. 145

VERMONT SHOPPING CENTER, INC. v. Ned H. PETTENGILL et al.

No. 312.

Supreme Court of Vermont.

June 1, 1965.

McNamara & Larrow, Burlington, for plaintiff.

Gelsie J. Monti, Barre, for Pettengill.

Ryan & Ryan, Montpelier, for King Estate.

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

SMITH, Justice.

The plaintiff brought a bill in chancery asking that defendant Pettengill be enjoined from trespassing upon land belonging to the plaintiff, Vermont Shopping Center, Inc., in the Town of Berlin, and from interfering with the construction of buildings on said land, and from interfering with the activities of the plaintiff's tenants and for damages. The defendant answered and filed a cross-bill. He asked that Amos C. King of the City of Barre and Richard M. and Lillian M. Cody of the City of Montpelier appear as parties to the action.

Plaintiff filed a replication to the answer and an answer to the cross-bill. The Codys and King filed answers to the plaintiff's bill and to Pettengill's answer and cross-bill. Subsequently, Amos C. King died and on petition of defendant Pettengill, the action was revived against Arthur N. McLeod as administrator or King's estate. Hearing was had before a Master, Walter H. Cleary, former Chief Justice of this Court, in Montpelier. Findings of Fact were filed and the Court of Chancery for Chittenden County entered a decree establishing the boundary line between the plaintiff and the defendant, finding a continuing trespass by defendant Pettengill on the lands of the plaintiff, and restraining the same, and entering a money judgment for the plaintiff against the defendant. The cross-bill of the defendant against the plaintiff, as well as against the King Estate and Richard M. Cody and Lillian M. Cody were all dismissed with prejudice. Such decree was based upon the findings of fact made by the Master which were expressly approved and adopted in fully by the Chancellor.

The common predecessor in title to the properties now owned by the Vermont Shopping Center and Pettengill was Amos King. King gave a warranty deed to Richard M. Cody and Lillian M. Cody, dated the 22nd of September 1954, of the following described property:

'Being a parcel of land lying and being on the easterly side of the main highway leading from City of Barre to Montpelier and the Town of Berlin, more particularly described as follows: Commencing on the easterly line of the main highway where the northerly line of land belonging to one Sierra and the southerly line of the land herein being conveyed interests said highway. Said point of beginning being in the center of a small stream of water which flows across the main highway and into the Stevens Branch of the Winooski River; then following the center of said stream in an easterly direction about 450 feet, be the same more or less, to its confluence with the Stevens Branch of the Winooski River; thence turning to the left and following the westerly bank of the Stevens Branch of the Winooski River in a general nontherly and westerly direction a distance of 1300 ft., more or less, to an iron pin driven in the said westerly bank of said river; thence turning in an angle to the left and running in a westerly direction to a point on the easterly line of the main highway, which point measures 800 ft. more or less, northerly of the point of beginning.'

The deed was recorded in the land records of the Town of Berlin, September 23, 1954.

On August 14, 1958, Richard M. Cody and Lillian M. Cody conveyed by warranty deed the same described parcel of land to the Vermont Shopping Center, Inc., and such deed was recorded in the land records of the Town of Berlin, August 17, 1958.

The deed from Amos C. King to the defendant Ned Pettengill was dated March 19, 1960, and recorded April 6, 1960, and contained the following description:

'Commencing at a stone post set on the westerly line of the main highway leading from the City of Barre to Montpelier, where the southerly line of land now owned by Burnham Jones intersects the easterly line of said highway; then proceeding along the southerly line of the Jones property in an easterly direction, 187 ft. more or less, to an iron pin set in the westerly bank of the Winooski River; thence turning to the right and running along the westerly bank of the Winooski River, in a southeasterly direction, to land now owned by Vermont Shopping Center, Inc. thence turning to the right and running along the northerly boundary of the Vermont Shopping Center, Inc. property, in a westerly direction, 400 ft. more or less, to the easterly line of the main highway, thence turning to the right and running along the easterly line of the main highway in a northerly direction, 120 ft. more or less, to the place of beginning. Meaning to convey a parcel of land extending from the main highway easterly to the river from the Vermont Shopping Center, Inc. land on the south to the Jones land on the north.'

In the autumn of 1959, plaintiff started the construction of a shopping center consisting of a large building and parking lot. During the time that John Gardner was on the leased premises he had erected a high board fence near the northerly line of the premises in connection with a drive-in movie operation then conducted there. The plaintiff removed most of this fence during the course of its construction, later reerecting part of said fence in the same location. A brook runs from the highway to the Winooski River a few feet northerly of the fence.

Defendant King was familiar with the location of the fence and the brook, visited the plaintiff's property several times during the construction of the plaintiff's building before his deed to Pettengill, but never complained about the location of the building or the parking lot.

Soon after defendant Pettengill purchased his land, he requested permission of an agent of the plaintiff's to cover the brook to allow customers of defendant's gasoline station to enter such station from the plaintiff's parking lot. At that time, defendant made no claim that plaintiff's building was partly over his boundary line, which is now his contention. However, defendant did later make this claim and bulldozed a fourfoot high mound across the plaintiff's parking lot, resulting in the equity action now brought here.

The defendant's first briefed exceptions are to the findings of the Special Master as to the boundary line between the parties. The dispute is over the boundary line which is the northerly line of the plaintiff and the southerly line of the defendant, Pettengill. It will be recalled that the deeds from King to the Codys, and from the Codys to the plaintiff, were prior in both delivery and recording to the deed from King to Pettengill. It necessarily follows that the point at issue must be decided by determining the northerly boundary of the land of the plaintiff, for King, the common grantor to both parties, could convey to Pettengill only such part of the original premises as were left to him after his conveyance to the plaintiff's predecessor in title, the Codys. Regardless of the descriptions and boundaries that may be described in the deed from King to Pettengill, the grantor, King's, power to convey was confined to what he then owned. Barr v. Guay, 125 Vt. 1, 209 A.2d 304.

The parties are in agreement, as the Master found, on the westerly end of the boundary line between the parties at the edge of the highway. The controversy centers on the question of where the easterly end of the north-south boundary line is fixed on the bank of the Stevens branch of the Winooski River. The Master found that such north-south Line's eastern terminus was fixed by a blzed tree, viewed by the Master, and which resulted in the finding that the defendants were trespassers on the property of the plaintiff.

The property of defendant King was first surveyed in August, 1938, by George C. Cook, a civil engineer and surveyor, who drew a map of his survey in 1945. In 1949-50 Cook did some further surveying on the premises with a rodman and King. Cook sighted the line which is now in dispute as far as he could. Then, because of intervening tress and brush, King and the rodman, in response to shouted directions from Cook, extended the line to the river. Cook asked the rodman the distance to the river and located it this way: he drew the line marked '400 plus or minus' on his survey map.

Plaintiff had the land again surveyed by Richardson, a surveyor of 30 years experience, in May of 1960. It was Richardson who discovered the blazed tree. Cook, who viewed the tree, stated he had never seen it before, but the marks on it were used by him and his rodman, in marking corner boundaries. The tree, with its three blazes was called a 'witness tree' by surveyor Richardson. Defendant King, upon seeing the blazed tree, said 'That blazed tree is the corner line. What's all the dispute about.'

It is true, as defendant contends, that the statement of King, just quoted, was admitted only against the King estate, and that a declaration made by a deceased person regarding boundaries can be received in evidence only if made before a controversy has arisen in respect to such boundaries. Turner v. Bragg, 113 Vt. 393, 403, 35 A.2d 356. But the evidence was admitted here, without objection, and findings of fact shall stand if there is any evidence fairly and reasonably tending to support them. 12 V.S.A. § 2385....