Victor D'orazio Et Ux. v. Benjamin Pashby

Decision Date07 May 1930
Citation150 A. 70,102 Vt. 480
CourtVermont Supreme Court

January Term, 1930.

Effect of Proceeding to Trial after Motion for Verdict Overruled---Deeds---Description---Occupancy---Presumptions---Easements---Prescriptive Right to Easement---Burden of Proof---Presumption as to Owner's Use of Lot---Interruption of Continuity of Adverse Possession---Jury Question---Boundaries---Establishment by Acquiesence---Sufficiency of Evidence To Make Jury Question and Support Verdict---New Trial---Newly Discovered Evidence---Consideration To Be Shown Diligent Party---Where Verdict Rendered Was Only One Reasonably To Be Expected from Uncontradicted Evidence.

1. Where defendants' motion for directed verdict, made at close of plaintiffs' case, was overruled, held that exception thereto was waived by defendants subsequently introducing evidence in defense of action.

2. Description of lot in deed by reference to its number on recorded plan, held, in legal effect, a description according to lines of lot as surveyed and established in original division shown by plan, and to be just as definite, though not as particular, as it would be if lines were given.

3. Where grantees occupied lot described in deed by reference to its number on recorded plan, they are presumed to have been in possession of whole lot as shown on plan.

4. In

ACTION OF TORT for trespass. Plea, general issue. Trial by jury at the September Term, 1928, Chittenden County, Buttles, J presiding. Verdict for the plaintiff. Defendant's motion to set aside verdict denied, and judgment for the plaintiffs. The defendants excepted. The opinion states the case. Affirmed. Petition for new trial dismissed.

Judgment affirmed.

J A. McNamara for the defendants.

A Pearley Feen for the plaintiffs.



This is an action of tort to recover damages for destroying a fence on the plaintiffs' land on St. Paul Street in the city of Burlington. The real controversy is over the location of the boundary line between the plaintiffs' lot and the lot owned by defendant Benjamin Pashby, and a certain prescriptive right claimed by said Benjamin Pashby in a driveway.

The plaintiffs' lot was conveyed to them by David J. Leonard and Henry H. Rierden by their warranty deed dated April 1, 1926, and is described in said deed as "Lot No. 14 as laid down on a plan of land of O'Neil, McSweeney and Andrews, which plan is of record in Vol. 42 at page 552 of the Land Records of the city of Burlington. Said land is situated on the easterly side of St. Paul Street, the house thereon being known and numbered 410 on said street." Said deed and a tracing of said plan were put in evidence by the plaintiffs and are marked, the former as "Exhibit 4," and the latter as "Exhibit 2."

It appears from the plan, Exhibit 2, that adjoining lot 14 and northerly of it is lot 13 which is owned by defendant Benjamin Pashby, and had been for a number of years prior to the purchase of lot 14 by the plaintiffs.

The dividing line between these two lots, the location of which is in dispute, extends easterly from the easterly boundary of St. Paul Street. The plaintiffs' evidence tended to show that some days before this suit was brought they erected a fence about one foot southerly from where they then and previously understood the true dividing line to be, they having then recently, for the purpose of establishing the northerly line of their property, caused a survey thereof to be made by H. M. McIntosh, a civil engineer residing in the city of Burlington; that after this fence had been erected six or seven days it was torn down by the defendants, and that while so doing they (de- fendants) were on the southerly side of the fence and entirely on lot 14, the plaintiffs' property. This destruction of the fence by the defendants was followed by the bringing of this suit.

With other evidence introduced by the plaintiffs tending so to show, the McIntosh survey, testified to by the surveyor, showed the true dividing line between lots 13 and 14 to be about one foot northerly of where said fence was erected by plaintiffs and torn down by defendants. The latter asserted the true location of that line to be five or six feet southerly of the line shown by the survey. Defendants also sought at the trial in the court below to claim ownership of this strip of land by virtue of prescription, based upon so-called usage for a period of twenty-nine years, and on acquiescence between the grantors of the respective parties for a period of twenty-four to twenty-six years. The plaintiffs claimed title to the strip of land under the warranty deed before mentioned, and denied any prescriptive rights in defendants. The jury returned a verdict for plaintiffs.

At the close of plaintiffs' opening evidence, defendants moved for a directed verdict. The motion was overruled, and exception noted. Thereupon defendants introduced evidence in defense of the action, but did not renew their motion at the close of all the evidence in the case. By so introducing evidence, the defendants waived their exception previously noted to the overruling of their motion. Paine v. Webster, 64 Vt. 105, 23 A. 615; Swerdferger v. Hopkins, 67 Vt. 136, 31 A. 153.

After verdict and before judgment, the defendants moved that the verdict be set aside and a new trial granted on the ground that there was no evidence to support the verdict. Thereupon the case was entered with the court. The questions presented by the motion having been heard and considered, the court, on November 26, 1928, denied the motion, to which denial the defendants took and were allowed an exception.

The defendants claim that the burden was on the plaintiffs to show legal title to and actual possession of the land in question to maintain the action, and they failed to do it. It is conceded that the plaintiffs own lot 14. The description of that lot by reference to its number on the plan is a description in its legal effect according to the lines of the lot as surveyed and established in the original division shown by the recorded plan, and is just as definite, though not as particular, as it would be if the lines were given. Spiller v. Scribner, 36 Vt. 245, 247; Silsby & Co. v. Kinsley, 89 Vt. 263, 269, 95 A. 634. The plaintiffs were occupying lot 14 under their deed, and they are presumed to have been in possession of the whole lot as shown on said plan ( Webb v. Richardson, 42 Vt. 465, 475); and, as their evidence tended to show that the land in controversy is in lot 14 as shown on said plan, they had sufficient title and possession to maintain their action. Fullam v. Foster, 68 Vt. 590, 596, 35 A. 484; Huntley v. Houghton, 85 Vt. 200, 204, 81 A. 452.

The defendants' evidence tended to show that the strip of land in controversy was used as a driveway. They claim under their motion to set aside the verdict that the uncontradicted evidence shows that defendant Benjamin Pashby acquired a prescriptive right of way over said land, and, also, that the boundary line, as claimed by him, was established by acquiescence.

The right to an easement in another's land acquired by long use and enjoyment is analogous to the right acquired by adverse possession; and the rules of law applicable to the two cases are in harmony. Barber v. Bailey, 86 Vt. 219, 223, 84 A. 608, 44 L.R.A. (N.S.) 98; Smith v. Vermont Marble Co., 99 Vt. 384, 395, 133 A. 355. To gain a prescriptive right, there must be an adverse continuous user for fifteen years, under a claim of ownership or as of right. Plimpton v. Converse, 42 Vt. 712, 717, 718; Mitchell v. Walker, 2 Aik. 266, 269. And the burden is upon the party claiming such a right to establish it affirmatively. Plimpton v. Converse, supra; Barber v. Bailey, supra.

Benjamin Pashby bought lot 13 in 1899. Within the next four years he built an apartment house thereon. He lived in one of the apartments and rented the others. He was away from home every summer working as a boat builder, carpenter and joiner, returning home in the fall.

Halsey Hathaway and his wife bought lot 14 in 1902 or 1903. They built the house thereon the same year, and lived there for several years.

The adverse possession by which the defendants claim Benjamin Pashby acquired his prescriptive right to the driveway, consisted of the acts of use and enjoyment of himself and his tenants. Their evidence tended to show that Benjamin Pashby built the driveway soon after he bought his lot and always maintained it; that it had always been used by him and his tenants in drawing fuel and other things to his house and whenever tenants moved in and out; and that this was all done under a claim of ownership of said land by him.

This evidence, however, was contradicted. The undisputed evidence shows that the Hathaways and their successors in title had always used the driveway for their own purposes whenever they so desired, without protest or opposition from Benjamin Pashby. Their evidence also tended to show that in one year if not more, there was no driveway but a lawn on this strip of land, and Mrs. Hathaway cut the grass on it and cared for it; and that from 1912 to 1918 one of the tenants of Benjamin Pashby used the strip of land by permission from Mrs. Hathaway. One witness had lived in the neighborhood for thirty years and was acquainted with the lots and driveway in controversy. He bought the...

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8 cases
  • J. P. Neill v. Burton S. Ward
    • United States
    • Vermont Supreme Court
    • November 5, 1930
    ... ... Kinsley , 89 Vt. 263, 269, 95 A ... 634, and in D'Orazio v. Pashby , 102 Vt ... 480, 150 A. 70. It is there said that such a description ... ...
  • Roy v. Woodstock Cmty. Trust, Inc.
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    • November 1, 2013 adverse possession." Lakeview Farm, Inc. v. Enman, 166 Vt. 158, 162, 689 A.2d 1089, 1091-92 (1997) (quoting D'Orazio v. Pashby, 102 Vt. 480, 487, 150 A. 70, 73 (1930)). An element of a claim of boundary by acquiescence is possession for the full statutory period, as defined by 12 V.S.A. ......
  • LeBlanc v. Snelgrove, 14–160.
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    • August 28, 2015
    ...for ejectment, ... actions to recover land, and ... actions for trespass to land." (footnotes omitted)); see also D'Orazio v. Pashby, 102 Vt. 480, 486–87, 150 A. 70, 73 (1930) (holding that establishment of boundary line by acquiescence is question of fact for jury). Accordingly, the LeBlan......
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    • United States
    • Vermont Supreme Court
    • October 3, 1944
    ... ... D'Orazio v. Pashby, 102 Vt. 480, 486, ... 487, 150 A. 70; Plimpton v. Converse, [114 ... ...
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