Lakeview Farm, Inc. v. Enman

Lakeview Farm, Inc. v. Enman  (95-324); 166 Vt. 158; 689 A.2d 158

[Filed 10-Jan-1997]


       NOTICE:  This opinion is subject to motions for reargument 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, 109 State Street, Montpelier, Vermont 05609-0801 of
  any errors in order that corrections may be made before this opinion goes
  to press.


                                 No. 95-324


Lakeview Farm, Inc. and                           Supreme Court
Maurice and Rita Martel
                                                  On Appeal from
     v.                                           Chittenden Superior Court

David and Sandra Enman                            September Term, 1996


Merideth Wright, J.

Andrew D. Mikell and William E. Mikell, Burlington, for plaintiffs-appellees

Robert F. O'Neill and Erik B. FitzPatrick of Gravel and Shea, Burlington, for
  defendants-appellants


PRESENT:  Allen, C.J.,(FN1)  Gibson, Dooley, Morse and Johnson, JJ.



       GIBSON, J.  Defendants David and Sandra Enman appeal a Chittenden
  Superior Court order that confirmed the boundary line of plaintiffs Maurice
  and Rita Martel's land, Lakeview Farm.  The Enmans contend that (1) the
  evidence was insufficient to show the boundary was established by
  acquiescence, (2) the court erred in finding that a description in earlier
  deeds must refer to holdings in an adjoining town, (3) the court erred in
  giving effect to a second "corrective" deed in the chain of title, and (4)
  the court abused its discretion when it imposed sanctions for introducing a
  new theory of ownership during the trial.  We affirm, but vacate the
  court's award of attorney's fees.

       The Martels purchased their farm in St. George in 1955, on which they
  currently run a herd of dairy cattle, grow crops, and harvest timber. 
  David and Sandra Enman purchased adjoining land to the west in 1985.  Soon
  after the Enmans' purchase, a dispute arose between

 

  the families when the Enmans attempted to enter property claimed by the
  Martels and use the logging roads.  After the second entry, Maurice Martel
  bulldozed an earthen berm across a trail to prevent future encroachment.

       In 1989, the Town of St. George conducted a town-wide property
  reappraisal.  The tax map prepared during the reappraisal showed a portion
  of land claimed by the Martels (hereinafter referred to as the disputed
  parcel) as belonging to the Enmans.  The Martels appealed the assessment to
  the town listers and the Board of Civil Authority, which assessed the
  property to the Martels in 1991.  The Enmans claimed title to the parcel,
  however, and the Martels filed suit to seek judicial confirmation of their
  boundary.  In December 1993, the trial court concluded that the boundary
  claimed by the Martels had been established by acquiescence and that the
  Enmans' theories of ownership were without merit.  In addition, the court
  ordered the Enmans to pay the Martels $17,548.66 in attorney's fees and
  costs.  This appeal followed.

       The dispute centers primarily on conflicting evidence in the Enmans'
  chain of title.  In 1967, Anson Peet, Jr., a predecessor in title, deeded
  his property to David Boardman and Raymond Pecor.  The deed stated that the
  property contained ninety-five acres and noted the land was bounded on the
  east by land belonging to the Martels and Homer Murray.  On September 6,
  1983, Boardman and Pecor deeded the property to Champlain College,
  repeating the area as ninety-five acres and the eastern adjoining
  landowners as the Martels and Murray.

       Soon after the 1983 conveyance, John Marsh surveyed the property for
  Champlain College.  He concluded that the boundary between the College's
  new purchase and the Martels' farm was a meandering fenced and blazed line
  following, in part, a series of rock ledges and located well west of the
  Murray line.  (See diagram.)  In December 1994, Boardman and Pecor executed
  a "corrective deed" to Champlain College.  This deed was "for the sole
  purpose of correcting a prior deed . . . dated September 6, 1983" and noted
  that the former deed "was not properly witnessed or acknowledged, and
  contained an inaccurate description of the property." This deed decreased
  the acreage to forty-eight acres.  In January 1985, the Enmans purchased

 

  the land from Champlain College with a deed referring to both
  Boardman-Pecor deeds, but noting that "[a]lthough prior deed descriptions
  may have referred to the parcel of land containing 95 acres, more or less,
  the parcel in fact contains approximately 48 acres, more or less."

       The Enmans first contend that the trial court erred when it concluded
  the boundary was established in the Martels' favor by acquiescence,
  asserting that the issue was not raised before the trial court.  We
  disagree.  Although not presented during trial, acquiescence was argued by
  both parties in post-trial memoranda.  The Enmans themselves raised the
  issue in a memorandum dated February 10, 1993; the Martels responded with a
  memorandum two weeks later.  Thus the issue was argued by both parties and
  presented to the court well before the court's decision of December 6,
  1993.  Neither party can claim lack of notice of the court's consideration
  of the acquiescence doctrine.  See Potwin v. Tucker, 126 Vt. 414, 418, 234 A.2d 430, 433 (1967) (basis of court's decision adequate as long as parties
  have received notice, by pleading or otherwise, of issues critical to, or
  decisive of, litigation).

       The Enmans contend, however, that even if the issue were properly
  before the court, the evidence was insufficient to conclude that the
  meandering line identified in the Marsh survey was established in 1949 by
  acquiescence.  A boundary is established by acquiescence when there is
  "mutual recognition of a given line by the adjoining owners, and such
  actual continuous possession by one or both to the line" for the statutory
  period required to establish ownership by adverse possession.  D'Orazio v.
  Pashby, 102 Vt. 480, 487, 150 A. 70, 73 (1930); see 12 V.S.A. § 501 (action
  for recovery of lands must be commenced within fifteen years after cause of
  action first accrues).  Both mutual recognition and knowledge of the
  boundary are required. Heath v. Dudley, 148 Vt. 145, 148, 530 A.2d 151, 153
  (1987).  Once a boundary is so established, the line is conclusive upon
  successors in title.  O'Neil v. Buchanan, 136 Vt. 331, 333, 388 A.2d 431, 433 (1978).

       There was sufficient evidence for the court to conclude that the
  boundary was established in the Martels' favor by acquiescence.  At least
  two generations of neighboring landowners

 

  accepted the fenced and blazed line as the boundary between the farms. 
  Edward Boutin, who grew up on the land and whose family sold the property
  to the Martels in 1955, testified that his family and Anson Peet, Sr., a
  former owner of the Enman parcel, accepted as the common boundary the line
  later identified in the Marsh survey.  Boutin confirmed that the disputed
  parcel was used by his family for pasture and timber and that they
  maintained the fence along the same line of rocky ledges.  He further
  testified there was never any dispute between his family and Anson Peet,
  Sr. (who acquired his title in 1949) over the location of the common
  boundary.

       After the Martels purchased the farm from the Boutins in 1955, the
  boundary was confirmed between the Martels and Anson Peet, Sr. when they
  walked the fence line separating the properties.  The Martels have
  continued to use the land in the disputed parcel, as the Boutins did, for
  pasturing their cattle, harvesting timber, and cutting firewood.  The
  Enmans do not dispute that the Martels farm the land at issue.

       The earliest act that could be considered a boundary dispute came in
  1965 when Anson Peet, Jr. granted Green Mountain Corporation an easement
  that allegedly gave it rights within the disputed area.  Green Mountain
  Corporation strung a television cable across the disputed land to the
  Murray parcel, but removed the cable in 1966 or 1967 upon the Martels'
  discovery and protest.  Thus, mutual recognition of the common boundary,
  extending back at least to 1949 and continuing for the requisite fifteen
  years, prevails over the Enmans' recent attempts to claim ownership by
  pointing to discrepancies in deed descriptions.

       The Enmans next contend the court erred in concluding that the
  description in the Boardman-Pecor and Anson Peet, Jr. deeds that the
  property was "bounded . . . on the east by land . . . owned by . . . Homer
  Murray" was an erroneous reference to a different farm.  From 1912 to 1934,
  the Enmans' property was owned by G. Fred Peet.  The trial court concluded
  that the description originally applied to a farm owned by Fred N. Peet in
  the Town of Hinesburg, south of St. George, and that this description was
  mistakenly inserted into the deeds for the property in St. George.  The
  Enmans point out that such a conclusion is impossible for two

 

  reasons.  First, they note that the tracts owned by Peet and Murray in
  Hinesburg were separated at the time by a tract known as "Lot 53," and that
  it would have been impossible for Murray to have been an eastern abutter to
  the Hinesburg Peet tract.  Second, they note that Fred Peet did not acquire
  the Hinesburg land until 1938, long after the first reference in 1916 in
  the Murray's chain of title to "Fred Peet" as a western abutter.

       We agree the trial court erred where the evidence shows the statements
  cannot be mistaken references to land in Hinesburg, but we find the error
  harmless.  Errors concerning unessential findings or conclusions do not
  provide a basis for reversal.  See Jarvis v. Gillespie, 155 Vt. 633, 638,
  587 A.2d 981, 985 (1991).  The court's conclusion that the boundary was
  established in the Martels' favor by acquiescence is adequate to uphold the
  judgment, and the court's error in no way undermines its decision under
  that doctrine.  See id. at 638, 587 A.2d  at 984 (court's error concerning
  dates was harmless where plaintiff's possession during different period was
  adequate to establish title by adverse possession).  The court was not
  required to reconcile all conflicting evidence presented by the parties.

       The Enmans also argue that the court erred by failing to give effect
  to the first Boardman-Pecor deed and accepting the second corrective deed. 
  They claim the first deed, which transferred ninety-five acres to Champlain
  College, was valid and unambiguous, and therefore should be given effect,
  while the second deed, which corrected the acreage to forty-eight acres,
  was inadequate to "correct an over grant" and thereby had no legal effect.

       In fact, just the opposite is true.  A deed that is improperly
  witnessed and acknowledged is invalid.  See Day v. Adams, 42 Vt. 510, 515
  (1869) (deed witnessed by one person where two were required was
  inoperative).  At the time the first Boardman-Pecor deed was executed, a
  valid conveyance required two witnesses and an acknowledgment.  See 27
  V.S.A. § 341(a) (amended in 1994 to require one witness).  The first
  Boardman-Pecor deed was witnessed by only one person, and the notary public
  failed to indicate who appeared before her; thus the first deed is invalid. 
  The 1984 Boardman-Pecor "corrective" deed had two witnesses and was

 

  properly acknowledged.  Therefore it was this second deed that effectively
  conveyed the property to Champlain College.

       In describing the land, the second Boardman-Pecor deed refers to the
  description in the first deed, thereby seemingly passing along the errors
  of the first deed, including the reference to Murray as an eastern abutter. 
  But the second Boardman-Pecor deed is not invalid merely because it does
  not describe the land unambiguously.  A deed with an erroneous description
  may still be valid when the description given, read in the light of
  surrounding circumstances, makes clear the land to be conveyed.  Loeb v.
  Al-Mor Corp., 615 A.2d 182, 187 (Conn. Super. Ct. 1991), aff'd, 615 A.2d 149 (Conn. 1992).  Although the Marsh survey was not mentioned in the
  second deed, the deed expressly notes that the first deed "contained an
  inaccurate description of the property" and corrects the acreage to
  forty-eight acres, consistent with the results of the Marsh survey, which
  moved the boundary well west of the Murray tract.  Thus, the evidence
  supports the conclusion that the intent of the second Boardman-Pecor deed
  was to convey the forty-eight acres located west of the Marsh survey line. 
  See Paradis v. Kirby, 138 Vt. 524, 527-28, 418 A.2d 863, 865 (1980)
  ("[Q]uantity [of land] may be essential and controlling where other parts
  of the description are not sufficiently certain.").

       Finally, the Enmans contend that the trial court abused its discretion
  when it ordered them to pay part of the Martels' attorney's fees and costs
  attributed to the Enmans' introduction of a new theory of ownership during
  trial.  Based on the Enmans' failure to notify the Martels of their "canted
  line" theory (a method by which the lot map was adjusted or "canted" to
  align with town lines on the tax map), the court held that "when conduct
  occurs just prior to or during trial, which . . . would violate . . .
  discovery rules[] V.R.C.P. 26 and 37[] if it had occurred during the normal
  discovery period, that conduct may constitute [sanctionable behavior]."
  Generally, attorney's fees may be awarded only in exceptional cases. 
  Gilbert v. Gilbert, 163 Vt. 549, 561, 664 A.2d 239, 245 (1995).  Such
  situations include a violation of V.R.C.P. 11 or when a party's actions are
  in bad faith, vexatious, or unreasonably obstinate.  Id.  Here, the

 

  trial court found no violation of V.R.C.P. 11.  Instead, it justified the
  sanction, in part, by analogy to disclosure requirements of discovery
  rules.  We decline to expand our discovery rules to allow sanctions for
  failure to disclose legal theories in post-discovery trial proceedings.

       We also do not find evidence that the Enmans' introduction of the
  canted-line theory during trial rose to the level of bad faith, vexation,
  or unreasonably obdurate or obstinate behavior.  The trial court, citing
  Cameron v. Burke, 153 Vt. 565, 572 A.2d 1361 (1990), concluded that
  sanctions are appropriate where a party's successive abandonment of legal
  theories and replacement with new theories rises to the level of bad faith. 
  But the court did not find that the Enmans acted in bad faith when they
  introduced the canted-line theory after the beginning of the trial. 
  Additionally, there is no evidence that the Martels were prejudiced by
  introduction of the new theory; the court continued the trial to allow the
  Martels to develop a response.  Although the Martels may have been put to
  additional expense to meet the new theory, presumably the same expenses
  would have been required regardless of when the new theory was introduced. 
  Thus, we agree that the trial court abused its discretion in imposing
  sanctions.

       The superior court's order confirming the boundary in the Martels'
  favor is affirmed. The award of attorney's fees to be paid to the Martels
  by the Enmans in the amount of $17,548.66 is vacated.


                              FOR THE COURT:



                              _______________________________________
                              Associate Justice





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                                  Footnotes


FN1.    Chief Justice Allen sat at oral argument but did not participate in 
  this decision.