82 Vt. 344 | Vt. | 1909
This case was fully heard by the late Henry E. Rustedt as special master. His death occurred soon after the hearing was completed, and without a report having been filed. The testimony having been stenographically reported, the parties agreed that the case might be heard by the late Chancellor Start on the depositions, exhibits and evidence taken, and joined in a request that the chancellor inspect the premises. It was also agreed that if either party considered further testimony necessary, such party might apply to the chancellor for permission to introduce it, and that the chancellor, in his discretion, might order it to be taken and prescribe the form of taking. Nothing was done under this provision; and the case was finally disposed of by Chancellor Start, then in failing health, strictly pro forma and without hearing. So the case is before us for the determination of both fact and law; and the proposition for a view of the premises, made by one party since the hearing, not being acceded to by all the parties, it becomes necessary for us to settle the facts without the benefit of the inspection contemplated by the original agreement.
The bill alleges ownership of a water privilege on Fairfax Falls under deeds from Daniel Wilkins and successive grantors, concerning which it is stated that the defendants claim inaccuracies of description; and alleges that the defendants are about to destroy the power by a removal of rocks that will change the channel; and prays for an in junction in that behalf and a quiet
Before taking up the orators’ chain of title it will be well to refer to some earlier conveyances. Prior to May 25, 1803, Asa Wilkins became the owner of a large tract of land which included Fairfax Falls. On that day he conveyed to Louis Sherrill a privilege on or adjoining the falls, a little above the old sawmill, for the purpose of a carding machine, with the privilege of a road to and from said machine, and the privilege of drawing what water might be necessary for carrying on the business of said machine. December 1, 1803, Asa Wilkins executed to Daniel Wilkins a warranty deed of one-third of the farm and mills. October 6, 1809, said Asa conveyed to William Crane one-half of certain carding machines, carding machine house, and road thereto, with the privilege of drawing water to carry said machines or to carry on any business that could be done in said house, the water privilege to revert if the carding machines should be removed or not kept in repair; which deed recited that the machines and house were the same built by Louis Sherrill and sold by Sherrill to the grantor. April 2, 1816, Asa Wilkins quitclaimed to Daniel Wilkins the entire tract and falls, with mills and other buildings thereon. April 10, 1816, Daniel Wilkins conveyed to William Crane a piece “beginning at a notch in the rocks at the southwest corner of the carding machine house, * * thence north thirty-three degrees east forty-four feet; thence west thirty-three degrees north forty feet; thence south forty-four feet; thence east thirty-three degrees south thirty-two feet to the first mentioned bounds”; with the privilege of drawing water to carry on the business of carding wool and the clothiers’ works, or water to carry on any other business drawing the same quantity as the carding and cloth dressing business. January 22, 1822, Daniel Wilkins conveyed to W. B. Parker and I. A. Webster a site for a grist-mill, describing
We come now to a statement of the orators’ title. January 14, 1828, Daniel Wilkins conveyed by warranty deed to David Nichols and Allen L. Nichols, for an expressed consideration of $75, property described as follows: “Beginning northeasterly of Crane’s carding works, at a rock notched N, thence southerly, or south, thirty degrees west forty feet to a cross in a rock, thence making a right angle and running westerly fourteen feet, thence making a right angle and running southerly ten feet, thence making another right angle and running easterly fifty feet, be the same more or less, to the road leading to Crane’s carding works, thence on said road fifty feet to a stake and stones, from thence making a right angle and running westerly to the first mentioned bounds, with the privilege of taking and using from the flume now occupied by said Crane, or any other flume which may be there erected, sufficient water to carry two tub bellowses for a blast furnace, reserving to said Crane the right of water sufficient for his carding and clothing works. ’ ’ On the same day the grantees of the premises mortgaged them to the grantor to secure a promissory note for $75, to be paid in hollow ware or iron castings on or before October 1, 1829, with interest. The mortgage was recorded before the maturity of the note and has not been discharged of record. Nothing appears regarding the payment or possession of the note. November 10, 1848, David Nichols and. Allen L. Nichols quitclaimed the premises to Andrew J. Soule; the signature of David having but one witness. August 22, 1865, Soule executed to Hiram Bellows a quitclaim that was evidently intended to convey the same property. In the last two deeds the course of the first line was given as 39° west instead of 30°, and in the last deed the place of beginning was put northwesterly from Crane’s mill instead of northeasterly, and the call for a right angle in running the third line was omitted. Bellows died in 1876, without having conveyed the title, and the oratrix Margaret claims the property under his will and the will of his wife, Susan B., who died in 1880.
Privileges upon the falls other than the ones above described were subsequently granted by those who took the remainder of David Wilkins’ right; and there have been many conveyances of
January 8, 1833, Daniel Wilkins conveyed to Erastus Gross by warranty deed ‘ ‘ one equal undivided half of 28 acres of land of the original right of Frances Panton- or Fanton, which 28 acres covers the grant in Fairfax on the river Lamoille, together with the water privileges and mills thereon standing”; in which deed exceptions were made of the grist-mill privilege deeded to Parker and Webster, the carding and cloth dyeing privileges deeded to William Crane, and certain parcels not connected with water rights. March 12, 1833, Wilkins quitclaimed to Erastus Cross as follows: “All my right * * in the whole of the lot of land on which I now reside, and one equal undivided half of which I conveyed to said Cross by deed * * dated January 6, 1833, meaning hereby to convey the other equal undivided half of said lot,” referring to the record of said deed for further particulars. Erastus Cross had previously become the owner of the grist-mill property by deed from Isaac N. Soule dated December 8, 1832; and on the 23d of December, 1833, he quitclaimed certain land to Joseph Cross by the following description: “Being the same deeded to me by Isaac N. Soule and Daniel Wilkins A. D. 1832, also all right and title I have in a grist mill, saw mill, and shingle mill, all deeded me by said Soule and Wilkins, for a more particular description of which reference being had to said deeds.” April 3, 1834, Joseph Cross quitclaimed to Erastus Cross as follows: “Being the same land mills and machinery and the whole of the estate that the said Erastus deeded to me * * December 23, 1833,” referring to the record of said deed for a more particular description and excepting the grist-mill property and the shingle machine. On the same day Erastus Cross quit-claimed to John Warner and Silas W. Brush, describing the property as all the estate -deeded him by Daniel Wilkins by his deeds of January 8 and March 12, 1833, and referring to the records. May 24,1834, Brush quitclaimed to Warner as follows: “All the right, title and interest I have in and to # * the Fair-fax Falls, meaning hereby to convey all the land I ever owned in the town of Fairfax.” October 27, 1836, William Crane quit-
The general course of the Lamoille river through the section involved in our inquiry is about north. The fall consists of an irregular descent, covering about thirty rods, and amounting to nearly ninety feet. All the mills and mill sites mentioned in the exhibits and testimony are on the easterly bank. The mills now existing are located at the head of the falls, and are supplied from the dam. Prior to 1873 there were mills just below the falls, which took their power from a lower point hereinafter
The marks upon the rocks called for by the orators’ deeds have not been found. The other objects mentioned in the description are Crane’s carding mill, the road leading to it, and the flume supplying it. So the first point of inquiry is the location of Crane’s carding mill. This building was carried off by a flood in the early thirties. It was without artificial stone foundation, and no vestige of it remains. But the parties are agreed that some part of the building stood on the flat rock above mentioned, marked IT on the orators’ plan; and all the evidence indicates that the rear of the building stood on timbers resting on the rocky slope before described. There is no satisfactory evidence of the size and shape of the building. Without presenting in detail the evidence upon which our conclusion is based, we locate the northeasterly corner of the Crane mill on the westerly part of the flat rock, with the easterly face of the building extending upon and along the edge of the path as it is indicated on the orators’ plan.
The power which supplied Crane’s mill, as well as the mills ■ below, came from a point more than half way down the falls,
The description in the orators’ deeds, taken as it reads, requires that the lot be located'northerly from the Crane mill site. The orators read the direction governing the starting point “southwesterly” instead of “northeasterly” as given in the first deed or “northwesterly” as given in the deed to Bellows, and so bring the lot southerly from the Crane mill site. This enables them to locate the westerly lines of the lot on the stream, with the easterly line resting on the lower part of the path or road above described. This location lacks the confirmation of the artificial marks used to designate the main westerly line; but the defendants claim, and their evidence tends to show, that rocks from the bank of the stream in this vicinity have been carried out by floods. We have seen that the lot as plotted has at its southwesterly corner a projection fourteen feet long by ten wide. The length of this projection is such that when the main westerly line of the lot is brought upon the margin of the stream the projection spans the gorge before described, bringing the end line of the projection on the outer rock. The witnesses are agreed that the lower line of the projection as surveyed crosses the gorge about where Crane’s dam and gate were located. It may be that the lot can be located substantially as claimed by the orators, if the court is justified in rejecting the starting point as given — a question which is left for further consideration.
The Nicholses must be treated as obtaining a good title to the premises covered by their deed, for the parties claim from a common source. Ames v. Beckley, 48 Vt. 395. There is no evidence that they ever went upon the land, but they are to be treated as having received the possession with their deed. Davenport v. Newton, 71 Vt. 11, 42 Atl. 1087. There is no presumption that the mortgage note was paid at maturity, and under our holdings the legal title passes to'the mortgagee on condition broken. But a mortgagee holds the title thus received only for the purpose of security, and the burden is on him and those claiming in his right to show anything done in enlargement of the title. There is no evidence that Wilkins or his grantees took possession under the mortgage within the statutory period, and it is only in support of an actual possession that the law will presume a conveyance or other relinquishment of the mortga
If the lot lies where the orators have located it, it has not been lost by adverse possession, actual or constructive. The man
In reaching our conclusions of fact we consider all the evidence introduced by the defendants, and exclude from consideration the testimony of the orator E. A. Sowles, the objection to which is insisted upon.'
We return to a further consideration of the description in the orators’ deeds. The description as a whole is such that the change from “northeasterly” to “northwesterly” in the language which determines the starting point in the final deed of the series, is immaterial. The other variations from the first description may be treated as errors. So the courses are to be taken as found in the first deed. The expression “southerly or south,” used in fixing a definite course so many degrees west, must be read “south,” unless the course is controlled by an ascertained monument. If the direction governing the starting point is correct, the lot is located north of the Crane mill site. There is no patent obstacle in the way of this location. The reservation in favor of the Crane privilege does not necessarily require that the lot be located above the Crane mill. If a location north of the Crane property is accepted several things follow with certainty. The road described as leading to Crane’s mill is the highway running past it. The lot lies wholly on the westerly side of the road. The entire length of its easterly line rests on the road. The northerly line of the lot is at a right angle with the road. The first and main line of the westerly side of the lot is S 30° W, and the lines forming the projection and southerly side of the lot are run by right angles from the end of that line. So the course of the southerly line of the lot is definitely determined by the course above given. This line, called fifty feet more or less, must be taken to be of the length stated, unless the distance is controlled by other calls. Johnson v. Pannel, 2 Wheat. 206, 4 Law. Ed. 221; Cutts v. King, 5 Me. 482; See Blaney v. Rice, 20 Pick. 62, 32 Am. Dec. 204. For present purposes this line may be assumed to strike the highway one rod north of the point represented on the orators’ plan as the junction of the beaten path with the highway. Then if the southerly and westerly lines of the survey are run in reverse
Note. This opinion was read at the January Term, 1909, and the case has since been held at the request of counsel, who now file a stipulation which provides for an affirmance of the decree, and a mandate in accordance therewith is sent down.