Watkins v. Childs

• Decision Date: 15 May 1907
• Citation: 66 A. 805,80 Vt. 99
• Court: Vermont Supreme Court
• Parties: WATKINS v. CHILDS.

66 A. 805

80 Vt. 99

WATKINS

v. CHILDS.

Supreme Court of Vermont. Grand Isle.

May 15, 1907.

Appeal in Chancery, Grand Isle County; James M. Tyler, Chancellor.

Bill by Mary L. Watkins against George W. Childs. From a judgment for defendant, plaintiff appeals. Affirmed and remanded.

See 65 Atl. 81.

Argued before ROWELL, C. J., and MUNSON, WATSON, HASELTON, POWERS, and MILES, JJ.

H. S. Peck, for appellant Lee S. Tillotson, for appellee.

POWERS, J. These parties occupy adjoining farms in the town of Grand Isle. The farm of the oratrix, known as the "Hyde farm," lies south of the one occupied by the defendant, which is known as the "Sampson farm." A highway runs through the farms in a northerly and southerly direction. The Hyde farm originally embraced all the territory of lot No. 272, but a small piece of about eight acres out of the northeast corner of the lot now belongs to the defendant, and is occupied by him in connection with the Sampson farm. This parcel is known as the "Childs lot," and was carved out of the Hyde farm in 1867 by an instrument describing it as follows: "Beginning at the northeast corner of lot No. 272, running westerly on the north line of said lot eighty-five rods to the west side of the highway, then southerly on the west line of the highway equal to 14 1/2 rods due south to a stake, thence easterly parallel with the north line of said lot to the east line of the lot to a stake 14 1/2 rods from the northeast corner of the lot, thence northerly on the east line of the lot to the place of beginning, containing about eight acres." The north line of lot No. 272 is shown to be a straight line running from the northeast corner through to a monument on the shore of Lake Champlain. This suit concerns (1) the location of so much of this lot line as lies west of the highway mentioned; and (2) the location of the south line of the Childs lot above described.

From 1867 to 1893 (the year the defendant acquired title to the Childs lot) the two stakes mentioned in the above description remained standing; and, while there was no fence on that line, there came to be a well-defined line of cultivation extending along the south side of the Childs lot between the stakes mentioned, caused by the ploughing and tilling of the lands by their respective owners. These stakes and the line of cultivation have constituted the only visible boundary between the Hyde farm and the Childs lot from 1867 to their removal or obliteration as hereinafter set forth. Since the defendant bought the Childs lot, the two stakes have, without the oratrix's knowledge or consent, been removed, and, on information and belief, it is alleged that the defendant removed them. It is further alleged, on information and belief, that the defendant has during his occupancy of the Childs lot plowed over the true south line of his said lot, without regard to the line of cultivation alluded to, and has thereby obliterated and destroyed "for the most part, if not wholly," said line of cultivation. It is further alleged that a dispute has arisen between the parties over the location of this line dividing the Childs lot from the oratrix's land, and that the dispute and consequent confusion and uncertainty as to where said line is was caused by the removal of said stakes and the "negligence, misconduct, willful and unlawful acts of the defendant in removing the monuments of, and otherwise effacing said true dividing line, and in plowing and otherwise tilling the aforesaid land, and obliterating the line of cultivation," without the oratrix's consent and against her protest, and "while she was otherwise in occupancy and control" of her land. Since the defendant has lived on the Sampson farm he has, unlawfully and without right, it is said, removed the fence which for many years stood on the north line of lot No. 272, dividing the farms on the west side of the highway. And, on information and belief, it is alleged that the defendant has cut a line tree and destroyed other landmarks and monuments on that line west of the highway, whereby great confusion and obscurity exists as to the true location of that line, which is now in dispute between the parties. It is also alleged that the defendant has removed the fence which formerly stood on the north line of lot No. 272 east of the highway, and that by so doing many of the old monuments and landmarks which located the original and true lot line on that side of the highway have been removed, obliterated, or destroyed, whereby confusion and uncertainty have arisen as to the location of that part of the line. The defendant has built fences along the two lines concerned in this suit, on locations "arbitrarily" fixed by him as the true ones. The bill shows that divers persons other than the defendant are interested in the Sampson farm, as part owners and otherwise, but the defendant's ownership of the Childs lot is not questioned. The prayer is for the appointment of a commission to determine the two boundaries hereinbefore referred to. The bill is demurred to for want of equity and for want of proper parties.

The appointment of commissions to ascertain confused boundaries is a very ancient branch of the jurisdiction of the court of chancery. Its origin, however, is involved in much obscurity and remains largely a matter of conjecture; and whether it originated in the equity of preventing a multiplicity of suits, as asserted by Lord Keeper Henly (afterwards Lord Chancellor and Earl of Northington) in Wake v. Conyers, 1 Eden, 331, or arose from cases in which the parties consented to a commission, as surmised by Lord Chancellor Thurlow in St Luke's v. St. Leonard's, 1 Bro. Ch. 40, or was founded upon two ancient writs found in the Register, as was thought by Sir William Grant, Master of the Rolls, in Speer v. Crawter, 2 Mer. 410, or was borrowed from the civil law, as suggested in the note to Wake v. Conyers, 2 Leading Cas. Eq. 439, it is certain that at a very early time it came to be looked upon with disfavor and was exercised with caution. The Lord Keeper in Wake v. Conyers, decided in 1759, expressed much jealousy of the jurisdiction, and said that such suits were "very far from deserving encouragement." Lord Chief Baron MacDonald said in Atkins v. Hatton, 2 Anstr. 386, that it was a jurisdiction "which courts of equity have always been very cautious of exercising." Lord Thurlow is said in Godfrey v. Littel, 2 Russ. & Myl. 630, to have concurred with Lord Northington in manifesting an inclination to narrow rather than extend the jurisdiction. Nor has there been any disposition manifested on the part of American Chancellors to extend the jurisdiction beyond the limits which came to be pretty clearly defined in England. All now agree that a controversy over the location of a boundary between independent proprietors does not of itself afford sufficient ground for equitable interference. Indeed, a confusion of boundaries alone does not. There must exist some equity superinduced by the act of the party defendant, or a danger of a multiplicity of suits, to warrant an application to the court of chancery for the appointment of commissioners. Wake v. Conyers, supra; Speer v. Crawter, supra; Marquis of Bute v. Glamorganshire Canal Company, 1 Ph. 681; King v. Brigham, 18 L. R. A. 361, 23 Or. 262, 31 Pac. 601; Humboldt County v. Lander County, 26 L. R. A. 749, 22 Nev. 248, 38 Pac. 578, 58 Am. St. Rep. 750. It is to be observed that the scope of this equity is not alone to ascertain the boundary in question according to its true location. It goes farther than that. And, when the original location cannot be found, it will require the defendant to make good to the plaintiff—as from a common fund—his proper quantity of land out of the land of which the defendant is possessed (Atty. Gen. v. Stephens, 6 De Gex, M. & G. 111; Speer v. Crawter, supra; Ashton v. Lord Exeter, 6 Ves. Jr. 288; Leeds v. Strafford, 4 Ves. Jr. 180), which affords a potent reason why a court of equity should proceed with caution when asked to exercise this jurisdiction.

In considering what will constitute a sufficient ground to call into exercise this jurisdiction of the court of chancery, some difficulty arises in determining what will constitute an "equity superinduced by act of the party." But it seems clear from the authorities that the established foundations of the jurisdiction are (1) fraud or misconduct on the part of the defendant resulting in a confusion of the boundary in question; (2) a relation between the parties which makes it the duty of one of them to preserve and protect the boundary, together with such neglect or misconduct on the part of him on whom the duty rests as results in the confusion of the boundary; (3) the necessity of ft resort to equity to prevent a multiplicity of suits. Accordingly it is held that if the defendant gradually encroaches, as by plowing or digging too near (Wake v. Conyers, supra; Marquis of Bute v. Glamorganshire Canal Co., supra), or by moving a fence (Guice v. Barr, 130 Ala. 570, 30 South. 563), a court of equity will interfere. So when a tenant, whose duty it is to keep separate his landlord's land from his own, permits the boundary between the properties to become confused so that the land of the landlord cannot be distinguished from that of the tenant, equity will take jurisdiction. Atty. Gen. v. Fullerton, 2 V. & B. 264. But before that court will act, even in such cases, all persons interested, whether their estates are present or future, must be made parties. 4 Pom. Eq. § 1385, note 6; Rayley v. Best, 1 Russ. & Myl. 659. This requirement precludes the court of chancery from taking action regarding the line dividing the farms on the west side of the highway; for, as ...