Morse v. Murphy

Annotate this Case

ENTRY ORDER

SUPREME COURT DOCKET NO. 89-456

NOVEMBER TERM, 1990

Stephen F. Morse and Robert } APPEALED FROM:
R. Cote and Joyce E. Morse }
}
v. } Caledonia Superior Court
}
}
Michael J. Murphy }
} DOCKET NO. S113-88Cac

In the above entitled cause the Clerk will enter:

Appellant's motion to reargue is denied; however, a modified version
the the Court's decision will be issued.

BY THE COURT:

Ernest W. Gibson III, Associate Justice

John A. Dooley, Associate Justice

James L. Morse, Associate Justice

[x] Publish
Louis P. Peck, Associate Justice (Ret.),
[ ] Do Not Publish Specially Assigned

Stephen B. Martin, Superior Judge
Specially Assigned

------------------------------------------------------------------------------

ENTRY ORDER

SUPREME COURT DOCKET NO. 89-456

NOVEMBER TERM, 1990

Stephen F. Morse and Robert } APPEALED FROM:
R. Cote and Joyce E. Morse }
}
v. } Caledonia Superior Court
}
}
Michael J. Murphy }
} DOCKET NO. S113-88Cac

In the above entitled cause the Clerk will enter:

The controversy in this case focuses on the width of a right-of-way
held by plaintiffs across property owned by defendant in the town of
Lyndon. Defendant appeals from the trial court's judgment holding that the
plaintiffs' right-of-way is fifty feet wide. We affirm.

The record facts are simple. In 1974, adjoining landowners, Morse and
Bailey, exchanged deeds the purpose of which was to create rights-of-way
over their respective properties. The rights-of-way connected and formed
one continuous road.

The Morse to Bailey deed dated July 8, 1974, conveyed "a fifty foot
wide strip of land" on which Bailey was to build a road and over which Morse
reserved a right-of-way. Four months later, Bailey deeded to Morse "the
right to cross and recross a certain parcel of land over an existing road-
way," but did not mention the width of the right-of-way or the parcel of
land. Both deeds, however, contemplated that the strips of land over which
the rights-of-way pass might be conveyed by Bailey to the Town of Lyndon
"as a public highway."

Thus, the parties created a road over a strip of land the fee to which
remained in Bailey. The strip of land (the sum of the two strips of land
described in the two deeds) might be deeded to the town at some indeter-
minate time in the future.

Holding that the deeds created an ambiguity as to the width of the
right-of-way in dispute, the trial court allowed Bailey to testify that the
parties intended to exchange rights-of-way fifty feet wide "so a substantial
road could be put in." Whether, as a matter of law, there was an ambiguity
is debatable. Even absent Bailey's testimony, the facts and circumstances
support a conclusion that all of the right-of-way was intended to be fifty
feet wide.

The deed to Bailey described the strip of land conveyed as fifty feet
wide. It anticipated that this strip of land might be conveyed to Lyndon.
The deed from Bailey described the right-of-way without mentioning its
width, but stated that the underlying "strip of land" may be conveyed to
Lyndon. If Lyndon were to be conveyed a fifty-foot-wide strip for part of
the road it is reasonable to assume that it would receive fifty feet for the
other part. The right-of-way for public highways is ordinarily three rods
(fifty feet) wide. 19 V.S.A. { 702. Therefore, a conclusion that Morse
and Bailey intended to create a road that was to be over a fifty-foot right-
of-way in part and then funnel down to a narrower right-of-way is an
irrational and strained view of the deeds.

If, on the other hand, an ambiguity was present, the court properly
relied on extrinsic evidence of the parties' intentions to resolve it. See
Fassler v. Okemo Mountain, Inc., 148 Vt. 538, 541, 536 A.2d 930, 931 (1987)
(where meaning of deed unambiguous, extrinsic evidence of parties'
intentions unnecessary); Braun v. Humiston, 140 Vt. 302, 307, 437 A.2d 1388,
1390 (1981) (where deed not clear additional evidence admissible).

The trial court also found as follows:

Defendant Murphy was on notice that his property was
subject to an easement that was ambiguously defined in
the deed. He was on notice to inquire and look further
to determine the extent of the encumbrance. He did not
do so and cannot now obtain the relief and injunctions
he now seeks.

Defendant never asked Bailey the width of the right-of-way; consequently,
this finding is not clearly erroneous. See Page v. Lyle H. Hall, Inc., 125
Vt. 275, 276, 279, 214 A.2d 459, 461, 463 (1965) (ambiguous language in deed
a warning to third parties).

Affirmed.

BY THE COURT:

Dissenting:

Ernest W. Gibson III, John A. Dooley, Associate Justice
Associate Justice

James L. Morse, Associate Justice

[x] Publish
Louis P. Peck, Associate Justice (Ret.),
[ ] Do Not Publish Specially Assigned

Stephen B. Martin, Superior Judge
Specially Assigned

------------------------------------------------------------------------------
Dissenting

NOTICE: This opinion is subject to motions for reagrument under V.R.A.P.
40 as well as formal revision before publication in the Vermont Reports.
Readers are requested to notify the Reporter of Decisions, Vermont Supreme
Court, 111 State Street, Montpelier, Vermont 05602 of any errors in order
that corrections may be made before this opinion goes to press.

No. 89-456

Stephen F. Morse and Robert Supreme Court
R. Cote and Joyce E. Morse
On Appeal from
v. Caledonia Superior Court

Michael J. Murphy November Term, 1990

David A. Jenkins, J.

David C. Drew and H. Zachary Rhodes of Drew & Rhodes, Lyndon Center, for
plaintiffs-appellees

Liam L. Murphy of Langrock Sperry Parker & Wool, Burlington, for defendant-
appellant

PRESENT: Gibson, Dooley and Morse, JJ., and Peck, J. (Ret.) and Martin,
Sup. J., Specially Assigned

GIBSON, J., dissenting. The majority holds alternatively that (1) if
the October 8, 1974 deed from James Bailey to Stephen and Joyce Morse is
unambiguous, it conveyed a fifty-foot right-of-way, and (2) if the deed is
ambiguous, the trial court correctly relied on extrinsic evidence to
resolve the ambiguity. The first alternative ignores express language of
the deed, which limits the right-of-way to the "existing roadway," and the
second alternative ignores the fact that when defendant, a subsequent, bona
fide purchaser for value, did inquire about the right-of-way, he was given
misleading information. I, therefore, respectfully dissent.

I.
The majority first presupposes the deed to be unambiguous. On October
8, 1974, defendant's predecessor in title, James T. Bailey, granted
plaintiffs Stephen Morse, Sr. and Joyce Morse "the right to cross and
recross a certain parcel of land over an existing roadway." (Emphasis
added.) Although a deed executed three months earlier by the same parties
granted Mr. Bailey a fifty-foot-wide strip of land through the Morse
property, the deed that is in dispute made no corresponding attempt to spell
out the width of the right-of-way contained therein. At the time of the
conveyance, the Morses were using the "existing roadway" as a means for
their farm vehicles to obtain access to their hayfields.
As the Supreme Court of Virginia has explained:
Where no width is expressed in the instrument creating a
new right of way, the determination of width is made by
reference to the intention of the parties to the grant,
as determined by the circumstances existing at the time
and affecting the property. If the object of the right
of way is expressed, then the dimensions of the way are
such as to be "reasonably sufficient for the
accomplishment of that object." When, however, an
instrument refers to and grants a right of way over an
already existing road, the right of way is limited to
the width of the road as it existed at the time of the
grant.
Waskey v. Lewis, 224 Va. 206, 211, 294 S.E.2d 879, 881 (1982) (emphasis
added) (citations omitted) (quoting Hamlin v. Pandapas, 197 Va. 659, 664, 90 S.E.2d 829, 834 (1956)); see also Annot., Width of Way Created by Express
Grant, Reservation, or Exception Not Specifying Width, 28 A.L.R. 2d 253,
267-68 (1953) ("Usually if the instrument granting or reserving a right of
way makes reference to a way existing at the place contemplated, and
especially if the right expressly given is to use that way and it is well
defined, there is little ground for the contention that the intended width
was other than that of the existing way.") (collecting cases).
In the instant case, the trial court found that, at the time of
conveyance, the travelled portion of the roadway was ten to twelve feet wide
but that necessary ditching and lateral supports required a total width of
thirty-five to forty feet for the road as it then existed. The majority
transforms the "existing roadway" into a fifty-foot right-of-way -- the
width required by statute for a public highway -- by focusing on that
portion of the deed providing for the possible future grant to the town of
the "strip of land over which said right of way passes." Whether such a
conveyance would ever be made, however, is entirely speculative. Under the
terms of the deed, that decision vested solely in the discretion of Mr.
Bailey as owner of the property in question.
The majority reasons that "a conclusion that Morse and Bailey intended
to create a road that was to be over a fifty-foot right-of-way in part and
then funnel down to a narrower right-of-way is an irrational and strained
view of the deeds." It is not irrational, however, for a property owner to
retain control over the width of a right-of-way passing over his or her
property, reserving decision as to when and if to convey to the town a
strip of land of sufficient width to accommodate a public highway. Further,
the parties knew how to include a specified width in the description, had
they wanted to do so, since they had done that very thing just three months
earlier.
This transaction was the conveyance of an easement that was not a
public highway, by a private party to a private party. Plaintiffs do not
argue that the right-of-way was in the process of becoming a town highway or
that the deed required that it become a town highway. Under the deed, the
grantor was in a position to add whatever width might have been needed in
order to establish a town road -- if he wanted a town road traversing his
property -- inasmuch as he retained ownership of the servient estate. This
provision in the deed, merely allowing the grantor to dedicate the road to
the town without having to obtain the grantees' consent or cooperation, was
not irrational. I am unable to perceive an unambiguous conveyance of a
fifty-foot-wide right-of-way in the deed.
II.
The majority holds, alternatively, that if the deed is ambiguous, the
trial court properly relied upon extrinsic evidence of the contracting
parties' intentions inasmuch as the ambiguity provided constructive notice
requiring inquiry to determine the extent of the encumbrance, an inquiry
defendant failed to make. This holding, however, is grounded upon an
erroneous finding and does not adequately address defendant's argument that
he is an innocent purchaser for value.
First, the trial court's finding that defendant did not inquire about
the extent of the encumbrance is incorrect. When defendant purchased the
property from Bailey, he asked about the road, and Bailey told him that it
was a "farm road"; however, Bailey never indicated that the right-of-way was
fifty feet wide. Further, when defendant attempted at trial to cross-
examine Bailey about their conversation, plaintiff's attorney objected --
asserting it was irrelevant -- and then stipulated that defendant "didn't
know what the intentions were of the [contracting] parties when they created
these deeds in 1974."
Second, as a general rule, "subsequent innocent purchasers for value
are insulated from hidden mistakes in a deed". Jones v. Carrier, 473 A.2d 867, 868 n.1 (Me. 1984). Although ambiguous language is a warning to third
parties, Page v. Lyle H. Hall, Inc., 125 Vt. 275, 276, 214 A.2d 459, 461
(1965), constructive notice is limited to those facts that a reasonably
diligent inquiry would have revealed. See, e.g., Lakeside Assocs. v. Toski
Sands, 131 Mich. App. 292, 298, 346 N.W.2d 92, 95 (1984); Allen v. Green,
229 Va. 588, 594, 331 S.E.2d 472, 476 (1985). In the instant case,
defendant's inquiry is undisputed and, I believe, sufficient. There was no
reason for defendant to suppose that the "farm road" occupied a uniform
width of fifty feet across the property.
The majority, in rejecting defendant's argument that he is a subsequent
purchaser for value, approves the trial court's use of extrinsic evidence.
The trial court, however, used the extrinsic evidence to reform the deed to
correspond to an unmemorialized "mutual intent" that "by mistake . . . was
not expressed in the deed." (FN1)
As stated in 6A R. Powell, Powell on Real Property:
[R]eformation is not available against a bona fide
purchaser. A party who purchases property for value and
without notice will have a defense in an action to
reform a deed involving that property. The purpose of
this limitation is clear. When a bona fide purchaser
acquires an interest in land and makes an investment in
the land, that party is entitled to have his or her
expectations protected. This is in accord with the
principles behind the recording acts. A person should
not be deprived of his or her investment when he or she
had no means of discovering the defect.
{ 901[3], at 81A-166 (rev. ed. 1991) (footnotes omitted).
Nor do the majority citations to Fassler v. Okemo Mountain, Inc., 148
Vt. 538, 541, 536 A.2d 930, 931 (1987) and Braun v. Humiston, 140 Vt. 302,
307, 437 A.2d 1388, 1390 (1981), overruled on other grounds, Soucy v. Soucy
Motors, Inc., 143 Vt. 615, 619, 471 A.2d 224, 226 (1983), address when and
whether extrinsic evidence of the contracting parties' intentions can be
considered where a third party is involved. They state the well-
established proposition that extrinsic evidence can be considered where the
instrument itself is not clear. Fassler, 148 Vt. at 541, 536 A.2d at 931;
Braun, 140 Vt. at 307, 437 A.2d at 1390; accord Isbrandtsen v. North Branch
Corp., 150 Vt. 575, 579, 556 A.2d 81, 84 (1988) (in determining whether a
deed is ambiguous, a court may consider extrinsic evidence of the
circumstances surrounding the making of the deed). But they do not deal
with defendant's argument that where the extrinsic evidence concerns the
contracting parties' unexpressed intentions, it cannot be imposed upon a
subsequent innocent purchaser for value. See, e.g., Jones v. Carrier, 473 A.2d at 869 (assuming contracting parties by mutual mistake incorrectly
described the boundary, subsequent purchasers were "entitled to protection
as bona fide purchasers for value without notice" where the deed's mistaken
description was not apparent on its face); Lakeside Assocs. v. Toski Sands,
131 Mich. App. at 298, 346 N.W.2d at 95 ("if the intentions of the
original contracting parties are not reflected in the public record, a
subsequent bona fide purchaser who has relied upon the public record cannot
be bound by those unrecorded intentions").
In sum, the majority interprets the deed on the basis of Bailey's and
the Morses' unmemorialized and uncommunicated intentions to mean something
its plain language does not express. Further, this unwritten understanding
is being imposed upon a subsequent purchaser for value who did make a
reasonably diligent inquiry into the right-of-way's width and had no actual
knowledge of the intended width. I therefore dissent.

______________________________
Associate Justice

FN1. The trial court's analysis is reflected by the following findings:
5. This is ambiguous and resort must be to matters outside
the deed to understand what was conveyed. At least, resort must
be to then existing use and physical features of the existing
roadway.
6. Once you go outside the deed, all facts and circumstances
surrounding the conveyance can be and should be considered to
determine what it was that was intended to be conveyed.
7. When all the surrounding facts and circumstances are
examined, the intention of the parties is clear.
8. James Bailey testified and this court finds that he
intended to convey a 50-foot right-of-way. This was the mutual
intent of both the grantees and grantors but by mistake the
intent was not expressed in the deed.
(Emphasis added.)

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