82 Vt. 438 | Vt. | 1909
This is a controversy over the true location of the dividing line between Lot 51, in the Third Division, and Lots 47, in the Third Division, and 47, and in the Fifth Division, in the town of Bristol. All these lots are irregular in shape. The north and south lines of 47, Third, are parallel, and the west line is perpendicular to them; but the south line is much longer than the north line, so the east line cuts the two at an angle approximating 45 degrees.' Number 47, Fifth; lies directly north of 47, Third — its east line being a continuation of the east line of the latter. Number 51, Third, lies east of these two lots, its east line forming a right angle with the south line of 47, Third. Number 38, Third, lies south of the eastern part of 47, Third. Next west of 38 and south of the western part 'of 47, Third, lies the “Wright Lot,” so-called, which was covered by the Vittum deed as hereinafter stated. Number 65, Second, lies next east of 51, its south line being a continuation of the south line of 47, Third, and Number 66, Second, lies next south of 65 and east of 38. Numbers 65, 66, 38 and the Wright Lot are all rectangular in form. The south-east corner of 51, the southeast corner of 47, Third, the south-west corner of 65, the northeast corner of 38, and the north-west corner of 66 are the same point — which is one end of the disputed line, and was originally marked by a spruce tree, not now to be found. The plaintiff owns 47, Third, and 47, Fifth, and the defendant owns the southern part of 51 extending down to the corner just mentioned.
From the relative locations of these lots, it is apparent that the eastern end of the disputed line is controlled by (1) the location of the south line of 47, Third, and (2) by the location of the east line of 51. And since the former is coincident with the north line of 38 and the north line of the Wright Lot, and is a continuation of the south line of 65 and the north line of 66, and the latter is coincident with the west line of 65 and a continuation of the east line of 38 and the west line of 66, it follows that the establishment of any of the lines named would be relevant to the question directly in issue. We are now speaking of these several boundaries as though they involved several different lines merely to make the argument clear; in fact, of course, only two lines are involved, one running north and south, and the other east and west, the point of intersection being one end of the disputed line.
The Macumber-Chase deed was not in the chain of title of •either party, but stands somewhat differently. It purports to ■convey twenty-five acres out of the south end of 65. The description is as follows: "Twenty-five acres being a part of Lot No. 65, in the 2nd Division, to the right of John Franklin, and off the south end of said Lot running the whole width of said Lot.” A certified copy of this deed was admitted subject to exception. If it had been admitted simply to show that the
Judgment affirmed.
The defendant seeks a new trial on the ground of newly discovered evidence. Attached to the petition therefor is the affidavit of one Erwin Roberts, from which the following facts appear: When Roberts was a boy, he lived on 47, Fifth, for about seven years — until he was sixteen years old. In 1881 or 1882, he bought Lots 47, 37 and 38, all in the Third Division, and later moved on to 47, Third, and bnilt a house thereon. He lived there and in that vicinity about eight years. The year he bought the lots aforesaid, he surveyed them and ran the lines around them. He then located the line between 51 and 47, Third, and traced it. The south-west corner of 51 was then standing, and was indicated by a spruce stub which was marked. He then placed several large stones around the stub. He followed the south line of 51 which was then indicated by old marked trees. At one point in this line, and nearly opposite the house of one Morocco, who then owned and occupied the south part of 51, he found a hemlock stump which Morocco pointed out to him as the south-west corner of her land. He re-marked this point with a stake and stones. On January 9, 1909, he went with the petitioner and his counsel, Mr. Fish, to the premises and then found the stone piles and some of the marked trees, and pointed them out to his companions.
That he did in fact find and point out stone piles and marked trees in the vicinity of the disputed line is corroborated by the affidavits of the petitioner and Mr. Fish. That the line thus fixed puts all the cutting complained of (except a little wood and brush) on to the petitioner’s land appears from his affidavit.
From a careful examination of all the evidence presented, we think the petition ought to prevail, and that there is a reasonable probability that a retrial will produce a different result.
Petition sustained, with costs; judgment reversed; verdict set aside; and cause remanded for new trial.