Vt. Marble Co. v. Eastman

• Decision Date: 01 May 1917
• Citation: 91 Vt. 425,101 A. 151
• Parties: VERMONT MARBLE CO. v. EASTMAN et al.
• Court: Vermont Supreme Court

101 A. 151

91 Vt. 425

VERMONT MARBLE CO.

v. EASTMAN et al.

Supreme Court of Vermont. Rutland.

May 1, 1917.

Appeal in Chancery, Rutland County; Frank L. Fish, Chancellor.

Bill by the Vermont Marble Company against George P. Eastman and another. From a decree for orator, defendants appeal. Decree affirmed, and cause remanded.

This case was heard before, and facts found by the chancellor. Among other things reported and noticed in the opinion, the chancellor states the following facts:

The defendants did not at first claim to own as far north as they now claim. At the beginning of the trial and before finding some old plans (known as the Brown, the Green, and the Murphy plans) and surveys of the properties between which the dividing line is in dispute, they claimed to a line 20 rods (measured along the line of a fence and wall on the easterly side of the premises) north of the maple tree at the southeast corner of the defendants' land, which is nearly 2 rods south of the line now claimed. The plaintiff claimed to own to a line 20 rods southerly at right angles with Mead's north line and parallel therewith; and, if it failed in establishing this line, it claimed to the so-called "pin line" which is a few feet further north and is obtained by measuring 10 rods south from Mead's north line and then 10 rods along the east wall. Each side introduced evidence tending to establish its claim as then made, and the hearing was about to close when the defendants, having discovered the old plans and surveys mentioned above, asked and were granted leave to file a crossbill. Thereupon they filed an amended answer and crossbill in which they claimed the true line to be a line parallel with Mead's north line and 20 rods north of the maple tree, at right angles to said north line. The line so claimed is 33.6 feet further north, measured along the easterly wall, than the line to which defendants before claimed, 3 rods 7 1/2 feet north of a line 20 rods south of Mead's north line, and only 16 rods and 9 feet south of this north line. The area of defendant's quarry lot south of a line measured at right angles 20 rods south of Mead's north line is 7.184 acres; south of the "pin line" it is 7.436 acres; and south of the line now claimed by them it is S.69 acres.

The chancellor states that the old surveys and plans which caused the defendants to claim the line to be 20 rods north of the maple tree, measuring at right angles to Mead's north line, and the evidence taken in connection therewith, induce findings as follows:

"In the fall of 1866, negotiations having been entered into between Andrew J. Mead and prospective purchasers of the quarry property, at the request of said Mead and Alanda W. Clark, one of the prospective purchasers, James Brown, of Rutland, a surveyor, on September 26th went to West Rutland for the purpose of laying out the boundary lines of the marble property under consideration.

"Accompanied and directed by said Alanda W. Clark and Mr. Mead and his son, Eugene, Mr. Brown ran a line at right angles to the north line of the Mead farm, northerly from the point where two fences corner at the north side of a large maple tree. On this line he measured off 20 rods and then set a stake. Through this stake he ran a line parallel to the Mead-Blanchard line easterly to a stone wall, where he set a stake, and westerly to an old rail fence running northerly and southerly, and there set a stake. From the stake first set he continued the right angle line northerly 10 rods, and there set a stake, and from that stake ran easterly parallel with the Mead-Blanchard line to the said stone wall. From the maple tree he ran westerly along the line of a board fence 56 rods to the north bar post of a barway then standing, and there set a stake, and then turned a right angle to the north and ran a line to meet the line parallel with the Mead-Blanchard line.

"On the same occasion a small piece of land was surveyed lying east of the parcel above referred to, its westerly boundary being a part of the easterly boundary of the large parcel, and the northwest corner being a point on the wall 18 feet southerly from the butternut tree. * * *

"No other parcels of land were surveyed by Mr. Brown. * * *

"On September 27, 1866, the day following Brown's survey, a rough sketch or plan of the premises was prepared, and Mr. Mead made and retained a copy thereof for himself, showing in detail the boundaries, corners, monuments, and distances, and containing complete directions for drawing the conveyance as shown thereon. * * *

"By this survey and Mead's plan the boundary lines of the property bonded to Oliver and associates were indicated as follows: The east side of the property was bounded by a stone wall running in a northerly and southerly direction from a point near the maple tree referred to, to the north farm line between the Mead and Blanchard lots. From the southerly end of the wall there was a rail fence extending to the maple tree, and from the maple tree westerly in the south line of the premises surveyed was a board fence. About midway between the maple tree and the north farm line there was a small butternut tree standing on the east side of the stone wall. The northeast corner of the parcel surveyed and measured by Brown was 27 feet 3 inches north of the butternut tree and 143 feet 2 inches east of the 20-rod point. The northerly line [of the property] was a line beginning at the stone wall on the east at the point 27 feet 3 inches north of the butternut tree, extending westerly through the 20-rod point and parallel with the Mead-Blanchard division line until it intersected a rail fence, which was the westerly [of the property], at which place there was a stake and stones."

Following the giving of the bond to Oliver and others, the corporation known here as the American Marble Company was organized and began to operate the property in the way of opening and developing a marble quarry thereon and excavating the loose earth. In excavating and opening the quarry the loose dirt from the top and part of the stone taken out by blasting was dumped on the easterly side of the ledge north of the northeast corner of the quarry opening. This company continued its operations down to the early part of the year of 1871, when it became insolvent, and its property was assigned by the court of insolvency to Charles Woodhouse as assignee on the 7th day of April of that year. On the 21st day of July following Woodhouse, as assignee, conveyed the property, subject to all incumbrances, to A. N. Russell and others, who on the 23d of August, same year, conveyed the same to the New American Marble Company. At the March term, 1871, of the court of chancery Mead brought proceedings to foreclose a mortgage of January 4, 1809, given by the American Marble Company on the property, and a decree was entered in his favor, which decree became absolute April 27, 1872. On the 1st day of July, 1873, Mead conveyed a one-eighth interest in the premises to Stillman C. White, and seven-sixteenths interest to Isaac M. Hillman, and seven-sixteenths interest to Lyman A. Bardin. At the March term, 1875, of the court of chancery Bardin and Hillman, assignees of another mortgage on the property given by the American Marble Company, foreclosed the same against the New American Marble Company and Stillman C. White; the decree becoming absolute March 27, 1876. In 1875 Bardin and Hillman mortgaged their seven-eighths interest in the property to one Thrall, who, at the March term, 1878, of said court, obtained a decree of foreclosure which became absolute April 12, 1879. On the 16th day of, the same month Thrall conveyed said seven-eighths interest to said Bardin.

At the time the property was being operated by the American Marble Company there was a wooden post set at the point located by Brown as the northeast corner of the property, which post was on the west side of the stone wall before mentioned and 27 feet 3 inches north of the butternut tree. Westerly of this post and between the post and the ledge was a large square cut marble block in the center of which was an iron pin, bent to hold a guy from the derrick, and westerly over the ledge there was a row of large iron pins of various heights about 1 1/4 inches in diameter and from 1 foot to 2 1/2 feet above the ledge, and west of the ledge was an apple tree standing in the line. These objects were practically in the line, and, except the apple tree, were apparently intended to mark a boundary.

During the time that company was operating the property a boarding house had been erected a considerable distance west of the quarry opening and about halfway between the ledge and the west fence line of the property. This boarding house was occupied during this period by a man named Burr, an employe of the company, and with whom some of the other employes boarded. While these premises were occupied by Burr, a portion of the land west of the ledge was inclosed as a garden in connection with the boarding house: the northerly fence of such garden beginning at a point on the west line fence and running easterly to the ledge. The easterly end of this fence was connected with the east end of the fence below referred to on the Brown and Green line, and also to the south line fence of the property, by a fence running northerly and southerly across the property. The inclosure in which stood the boarding house was used and occupied by Burr as a garden, and the small inclosure north of the garden fence was used as a night pasture for Burr's cattle The garden fence or board fence was about 30 or 40 feet north of the boarding house, and the rail fence on the north line was some 50 or 60 feet further north. At the time of Green's survey mentioned below he found these fences as above set forth.

After the said Bardin obtained an interest in the property under this deed from Mead on July 1, 1873, he and Mead caused the premises to be...