Welch v. Barrows

• Citation: 125 Vt. 500,218 A.2d 698
• Decision Date: 05 April 1966
• Docket Number: No. 86,86
• Court: United States State Supreme Court of Vermont
• Parties: George T. WELCH v. Marvin M. and Sylvia G. BARROWS.

Page 698

218 A.2d 698

125 Vt. 500

George T. WELCH v. Marvin M. and Sylvia G. BARROWS.

No. 86.

Supreme Court of Vermont.

April 5, 1966.

Paterson, Gibson & Noble, Montpelier, for plaintiff.

William S. Burrage, Middlebury, for defendants.

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

KEYSER, Justice.

This is an action in equity brought by the plaintiff to obtain a mandatory injunction to enforce a restrictive agreement existing on land owned by the defendants. The plaintiff seeks the removal of three cabins from defendants' land on which plaintiff claims the restriction operates.

The court, after hearing, entered decree for the plaintiff on its findings of fact. The case is here on appeal by the defendants.

The controlling issue in controversy is the location of the area upon which the building restriction applies. Defendants concede this area is 'all we are interested with in this case.'

In 1870 one Carlos Kimball owned a farm of about 200 acres in the Town of Ferrisburg, Vermont. A portion of the land bordered on Lake Champlain. Kimball divided land in an area called Kimball's Point into shore lots which were later sold. In deeds of these lots, Kimball included an agreement that no buildings were to be built on a lot which he retained along the shore of the lake in the Point area.

The Point is in the northwesterly section of the area. The lake then forms a bay area down shore, called Kimball's Bay. The land upshore runs slightly to the northeast. The short lots are laid out 5 rods wide along this shore and have a depth of 8 rods. Lot No. 1 is nearest to the Bay area.

The shore lots abut on a roadway about 33 feet wide below which are several lots called Back Lots. Back Lot No. 1 is opposite shore Lots Nos. 1 and 2.

We are concerned only with the land which lies westerly and northwesterly of Lot No. 1 and Lot No. 1 Back to the lake Bay and Point areas. A survey plan of the Kimball's Point area, an exhibit in the case, was recorded September 21, 1909 in Book 24, Page 118 of the Ferrisburg Land Records. To add clarity to the opinion we have reproduced a sketch not to scale, from the survey to show the lots involved and the restricted area referred to in the Kimball deeds.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The defendants became owners of the remainder of the Kimball farm in 1950 which included this land on the lake shore. In early December 1961, they commenced the construction of three cabins on land lying between the lake and the westerly property line of Lot No. 1 and Back Lot No. 1. In February 1962, the plaintiff learned of this and objected to it by letter from his attorney to the defendants. Construction of the cabins was completed the following spring.

There is no disagreement between the parties that the clause in question in the several deeds is a restrictive agreement. As such, it is enforceable in equity. Queen City Park Assoc. v. Gale, 110 Vt. 110, 116, 3 A.2d 529.

This brings us to the real and fundamental question-the location of the area on which the restrictive agreement applies.

Paragraph (3) of the decree is material to the import of Paragraph (4) so we quote both.

'(3) The defendants, their agents, servants, heirs, executors, administrators and assigns are perpetually restrained and enjoined from erecting or causing to be erected any buildings or structures whatsoever on Kimball's Point and from creating or causing to be created thereon any obstruction or hindrance to the use by plaintiff, and his heirs and assigns of the same, pursuant to plaintiff's various easements, rights of way and servitudes therein, which are described in Findings (6), (7), (8) and (9) of the Findings of Fact made in this cause.'

'(4) For the purpose of this decree, Kimball's Point is defined as an area shown on a map entitled 'Survey of Kimball's Point' recorded in Volume 24, of the Town of Ferrisburg Land Records at page 118, and not divided into building lots on said plan.'

The plaintiff claims support for Paragraph (4) in Findings Nos. 12 and 13. The pertinent part of No. 12 reads: '* * * (T)he land on Kimball's Point not heretofore sold as a camp lot, has been used in common by all owners of camp lots as well as the owner of the farm.'

The opening sentence of Finding No. 12 says, 'On that property still owned in fee by the defendants, located on Kimball's Point Grounds three camps were erected subsequent to November 1, 1961.'

The only reference in the findings to a map is in Finding No. 4 reading, 'The Plaintiff's Exhibit No. 1 represents a map of the Kimball's Point area showing various lots.'

The plaintiff claims that the restrictive convenant on defendants' land expressed in the Kimball deeds of Lots No. 1 and No. 2 inure to his benefit. The case proceeded in conformity with this theory adopted by the parties. The court found that the restrictions created in the Point Grounds by Carlos and Emily Kimball were for the benefit of all land owners in that area and were covenants running with the land.

The defendants claim the land on which the restriction rests lies between Lot No. 1 and the lake and northwesterly of a line from the southerly corner of Lot No. 1 to the Bay, where Kimball was to place a fence. They argue that this is the lot described in the deed of Carlos Kimball to Charles W. B. Kidder in 1888.

The plaintiff, to the contrary, claims the Point Grounds lie between Lot No. 1 and Lot No. 1 Back and the lake and northwesterly of a fence which for many years ran from the southerly corner of Lot No. 1 Back to the southerly end of a stone retaining wall near the lake shore built in 1922.

Plaintiff's ownership of Lots No. 3 and No. 4 originates in two deeds. The deed of Lot No. 3 given by the common owner Carlos Kimball to H. Addison Hickok in 1898 recites: 'Said grantor shall not build any house or other buildings on the Point grounds or give general public a right of way over the same.'

Emily Kimball (widow of Carlos Kimball) conveyed Lot No. 4 to Hattie Welch in 1909. The deed provides in part: 'and every and all other rights and privileges as have been granted by Carlos Kimball to former purchasers.' This deed thus incorporates by reference rights previously granted in the deeds to other lot owners.

The record shows an apparent general plan, or intent, by Carlos Kimball to provide certain rights and privileges by grant for the benefit of the persons purchasing shore lots laid out on his premises. This intent was carried into effect by the inclusion of the covenants in the several subsequent deeds.

There are three other former deeds given by Carlos Kimball containing the restrictive covenant, (1) to J. L. St. Peters (1889), (2) to H. Addison Hickok (1895) and (3) to Charles W. B. Kidder (1888). The deeds to St. Peters and Hickok only state that the grantor shall not build on the 'Point grounds.' They do not describe in any degree of exactness the land upon which the restrictive agreement is imposed.

The first lot sold by Carlos Kimball was to Kidder in 1888. Shore Lot No. 1 was the first lot described in the deed; the second was a small piece 2 3 rods in the northeast corner of Lot No. 1 Back. This back lot is situated on the opposite side of a road running nearly northeast and southwest between the shore lots and back lots. This small piece in Lot No. 1 Back is opposite shore Lot 2 and not No. 1.

Kimball's conveyance to Kidder contained the following provision:

'It is understood * * * that said Kimball shall make a fence with convenient gate from the southerly corner of the first described lot to the Bay and the lot West of said fence and southwesterly of said Kidder's lot shall not be sold as a building or any buildings put thereon that will obstruct the view. * * *' (Emphasis added.)

This is the first and only deed from the Kimballs which locates the lot made servient to the building restriction. The reference in the other deeds is in general terms, for example, 'Point Grounds.' Accordingly, we must gather the intention of the parties in that deed from the words they used in order to determine the area referred to in the subsequent deeds.

The intention of the parties, not the language used, is the dominating factor, and the circumstances existing at the time of the execution of the deed, the situation of the parties and the subject matter are to be considered. Nelson v. Bacon, 113 Vt. 161, 169, 32 A.2d 140.

The agreement must be construed so as to give effect to the intention of the parties if it can be gathered from the language used when interpreted in connection with, and in reference to, the purpose sought to be accomplished and the nature and condition of the subject matter of the grant at the time the instrument was executed. Davidson v. Vaughan, 114 Vt. 243, 246, 44 A.2d 144.

'When there is no doubt or obscurity, there is no room for construction and the instrument must be given effect according to its terms.' Aiken v. Clark, 117 Vt. 391, 393, 92 A.2d 620, 621.

In that situation the meaning is then a question of law, and the intention so manifested cannot be altered by evidence or findings of extraneous circumstances. Davidson v. Vaughan, supra, 114 Vt. at p. 246, 247, 44 A.2d 140.

The Kidder deed provided that Kimball shall make a fence 'from the southerly corner of the first described lot to the Bay.' The first described lot is shore Lot No. 1. This language is plain and clear and unmistakably fixes the location of this fence line.

The deed then specified with clarity that the lot impressed with the covenant is to be located with relation to this fence line and the shore lot conveyed to Kidder. This is the expressed intention of the parties. Whether the fence was built in 1888, or was ever built, is immaterial to the issue here, but its proposed location plainly fixed by the deed is vital.

The language of the deed fixes the lot west of the above-described fence and southwesterly of Kidder's...