Home/Supreme Court of Vermont/Stevens v. MacRae

Stevens v. MacRae

122 A. 892, 97 Vt. 76, 1923 Vt. LEXIS 217
CourtSupreme Court of Vermont
DecidedOctober 3, 1923
StatusPublished
Cited by11 cases

This text of 122 A. 892 (Stevens v. MacRae) 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
Stevens v. MacRae, 122 A. 892, 97 Vt. 76, 1923 Vt. LEXIS 217 (Vt. 1923).

Opinion

Watson, C. J.

On September 24, 1909, Warren H. Bartholomew and wife, by their deed of that date, in due form and recorded, conveyed to the plaintiff the “Camp,” situated in Castleton, this State, a short distance easterly from Lake Bomoseen, and containing approximately one-half acre of land, (part of grantors’ farm). Therewith and by the same deed, the grantors conveyed certain rights to the plaintiff, described as follows:

“Also the right to pass and repass across the lands of the grantors lying westerly of the above and northwesterly of the same to low water mark upon the shore of Lake Bomoseen, and the right to build a dock and boat house upon said lake shore. Also the right to enter upon lands of grantors west of the premises above described and dig and open a spring of water and dig a ditch therefrom and lay an aqueduct to convey the water therefrom to the lot hereby conveyed, and the right at any time hereafter to enter upon the premises of the said grantors to clean and repair said spring and aqueduct. Also a right of way to the above described premises across other lands of .said grantors from the public highway passing the dwelling house of the grantors.”

On October 7, 1912, Bartholomew and wife, by their deed of that date, in due form and recorded, conveyed their farm to the defendant, subject to the exception set forth in the deed, so far as material here, as follows:

“Always excepting however and reserving certain cottage lots and appurtenant rights which were conveyed by these grantors as follows and to J. H. Stevens by deed dated Sept. 24th, 1909, and recorded in Book 29, Page 77. ’ ’

This bill was brought, to restrain the defendant from obstructing the plaintiff in his use of a spring, and of a certain *78 right of way from the public highway to the plaintiff’s premises, both of which are situated on defendant’s farm, and are rights which the plaintiff claims to own by virtue of his aforementioned deed. The case was heard by a special master. Exceptions were taken to the report by both parties. The chancellor overruled all the exceptions, granted the prayer of the bill as to the spring, and denied the prayer as to the right of way. The case is here on plaintiff’s appeal.

The only questions for review relate to the right of way.

Regarding this right of way, the defendant stands in the shoes of the Bartholomews. By their grant to the plaintiff, the right of way in question is to extend from the public highway to the premises — the ‘ ‘ Camp ’ ’ — conveyed by the same deed, “across other lands of said grantors” and passing their dwelling house. By the fair meaning of the grant, the route throughout is to be over such “other lands,” as well as past the dwelling house.

The plaintiff’s “claimed right of way” passes immediately in front of the dwelling house, and (referring to the map, Exhibit. 3) extends from A-4 to A-5, to A-6, and to A-7, the last named point being at the southwest corner of plaintiff’s premises. Scaling the map, this course runs northerly from A-4 through defendant’s orchard for a distance of approximately 1,300 feet. Defendant objects to such way being in front of his dwelling house, -rather than back of it, and also to its running through his orchard. Regarding the orchard the findings show that in the spring of 1913 defendant took possession of the farm, and in April of that year he set out several thousand apple trees, in rows twenty feet apart, the trees being the same distance apart in the row. Over twenty-five -and not over forty of these trees will have to be removed if plaintiff has a way through the orchard as claimed by him, of a size adequate for vehicles. The trees have been carefully planted and eared for, and produce good fruit. It is found on evidence properly received for such purpose, that the said trees are of large and substantial value. At the time defendant planted the apple trees, he had no knowledge, nor cause to believe, that the plaintiff claimed a way where the map shows the “claimed right of way” is now located. Nor was there any evidence that the plaintiff knew the apple trees were planted across the “claimed right of way” before his return in the summer of 1913, and from that time on he used the route *79 in front of the dwelling house, and from A-4 to B, B, B, the “D. & H. Way” (discussed below) to his camp, for all the vehicles that he had come from Castleton Corners; but when he. went on foot towards Castleton Corners, he passed through the

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Cite This Page — Counsel Stack

Bluebook (online)
122 A. 892, 97 Vt. 76, 1923 Vt. LEXIS 217, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stevens-v-macrae-vt-1923.