Home/Supreme Court of Vermont/Parrow v. Proulx

Parrow v. Proulx

15 A.2d 835, 111 Vt. 274, 1940 Vt. LEXIS 157
CourtSupreme Court of Vermont
DecidedOctober 1, 1940
StatusPublished
Cited by22 cases

This text of 15 A.2d 835 (Parrow v. Proulx) is published on Counsel Stack Legal Research, covering Supreme Court of Vermont primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Parrow v. Proulx, 15 A.2d 835, 111 Vt. 274, 1940 Vt. LEXIS 157 (Vt. 1940).

Opinion

Sherburne, J.

This is an action of .tort based upon P. L. 8555 for the wilful and malicious removal of an alleged boundary fence and markers. Verdict and judgment were for the *276 plaintiffs, and the case comes here upon defendant’s exceptions.

The plaintiffs and defendant’s wife are adjoining owners of lots on the westerly side of the Malletts Bay road in Colchester, and derive their respective titles from a common source, Josephine Pagel and Marie Levesque, who held title to same in one parcel of about four acres. The southerly line of this parcel, which was also the northerly line of the land of Fred Richard, intersected this road at an angle of 64°13', and the westerly line was parallel to the road.

In 1925 Pagel and Levesque leased to the Standard Oil Company of New York a strip of land at their south-east corner, having a frontage on the Malletts Bay road of 206.2 feet and a depth of 100 feet, and bounded on the north by a line at right angles to this road. By a warranty deed, dated April 8, 1929, in the covenant and warranty clauses of which the Oil Company lease was expressly excepted, they conveyed to Helen F. and Maurice H. Chausse a piece of land, therein described as follows:

“Being the land and premises consisting of about two acres, having a frontage of about 204 feet with four room cottage thereon, together with all rights and title in land occupied by Standard Oil Co. under contract. Said land and cottage are situated on the westerly side of Malletts Bay Road, so-called, leading from Burlington, Yermont, to Malletts Bay, said land has a frontage on the westerly side of said Malletts Bay Road of 204 feet and is bounded on the north by land of said Josephine Pagel and Marie L. Levesque and on the south by land of Fred Richard and extends westerly to the westerly line of said Pagel and Levesque property and bounded on the east by said Malletts Bay Road and contains about two acres, be the same more or less. The easterly part of said lot of land hereby conveyed with a frontage of 204 feet and 125 feet in depth is under contract of lease by the Standard Oil Company of New York, said lot of land is a part of the same lot of land that was conveyed to said Josephine Pagel and Marie L. Levesque by Robert B. and Anna D. Miller by their deed of warranty dated Aug. 31, 1922, and of record in the Town Clerk’s office of said Town of Colchester. Reference being made to said deed in aid hereof.’’

*277 After the defendant’s wife had obtained title to this lot from the Chansses in 1932, and before the remainder of the four acre parcel had been sold, Mrs. Levesque erected an iron fence on the line of markers which had been set by the Oil Company at each end of its north line to mark its corners. Such fence was also extended a few feet farther west along the same course until the supply of fence posts ran out. On April 21, 1937, Mrs. Levesque, who then owned the remainder of the four acre parcel, conveyed such remainder to plaintiff’s grantor, by a warranty deed in which the lot conveyed to the Chausses was excepted and described as consisting ‘ ‘ of two hundred and four feet frontage on said Malletts Bay Road, with a straight line extending to the rear of said lot.” The above markers and fence are the ones here involved.

Thq court charged that the construction of the Chausse deed was for the court, and instructed the jury that the northerly line of the lot conveyed in that deed was identical with the northerly line of the lot leased to the Oil Company for the distance of 100 feet from the road. To this the defendant excepted.

The intention of the parties, as gathered from the language used when applied to the- premises, controls in giving construction to what is conveyed by a deed. Cummings v. Black & Covell, 65 Vt. 76, 25 Atl. 906. In ascertaining such intention, when the particular and general description do not coincide, effect must be given to the particular description, such as expressed by courses and distances, by permanent monuments, by lot and range, and by the adjoining, surrounding lands, under the principle that when the land conveyed is described by clear and well defined metes and bounds, so that the boundaries thereof can be thereby readily determined, such description shall prevail, and settles the boundaries over any general words of description that may have been used in the deed, tending to enlarge or diminish the boundaries. Cummings v. Black & Covell, supra; Spiller v. Scribner, 36 Vt. 245; Clement v. Bank of Rutland, 61 Vt. 298, 305, 17 Atl. 717, 4 L. R. A. 425; Huntly v. Houghton, 85 Vt. 200, 203, 81 Atl. 452; Cutler Co. v. Barber, 93 Vt. 468, 473, 108 Atl. 400; McDonough v. Hanger, 94 Vt. 195, 198, 111 Atl. 452. The correctness of the court’s charge depends upon whether the Chausse deed shows an intention to adopt the *278 northerly line of the Oil Company lot as a particular description of a part of the northerly line of the land conveyed.

Had Mrs. Levesque had sufficient posts to complete the fence in the course of the north line of the Oil Company lot it would have intersected the Richard’s north line a few feet east of the west line of the four" acre parcel, and would have left the defendant’s wife a triangular lot containing only 1.01. acres. If her north line intersected any part of the west line of the four acre parcel, as it must according to the description in the Chausse deed, it follows that her north line could not have been a straight line if it followed the course of the north line of the Oil Company lot for 100 feet. In order to enclose two acres with a straight northerly line from the road to the westerly line of the four acre parcel, a survey shows that her lot must be bounded on the west by such westerly line for a distance of 148.5 feet. On such survey the north line meets the road at a point 204 feet north of Richard’s north-east corner, or a little south of the Oil Company’s north-east corner, and then takes a course somewhat northerly of the oil company’s north line. On such a survey, although at the road the entire easterly line of a two acre plot is within the Oil Company lot, as the plot extends westerly it includes a little triangular piece of land to the north of the Oil Company lot, so that to the depth of that lot that lot does not comprise all the land within the surveyed two acres.. If the intention was to convey two acres and to have the Oil Company lot to its depth comprise all the easterly part of the plot conveyed, then it would be necessary for the north line to have an angle in it and to intersect the west line of the four acre parcel farther north than the point shown on the survey.

It must be noted that the deed does not give the dimensions of the Oil Company lot accurately, it says nothing about the north line of that lot being at right angles to the road, and it does not refer to the lease for a description. So far as the bounds of the Oil Company lot are given in the deed they do not conflict with the survey above referred to.

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Bluebook (online)
15 A.2d 835, 111 Vt. 274, 1940 Vt. LEXIS 157, Counsel Stack Legal Research, https://law.counselstack.com/opinion/parrow-v-proulx-vt-1940.