DeGraff v. Burnett

DeGraff v. Burnett (2006-266)

2007 VT 95

[Filed 31-Aug-2007]

  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.


                                 2007 VT 95

                                No. 2006-266


  Danny L. DeGraff, Nancy R. DeGraff             Supreme Court
  and MBS Hardware & Lumber, Inc. d/b/a 
  Milton Hardware Supply                        On Appeal from
                                                Chittenden Superior Court
      v.  

  Norman Burnett                                March Term, 2007


  Richard W. Norton, J.

  William B. Towle of Ward & Babb, South Burlington, for
    Plaintiffs-Appellants/ Counterclaim Defendants/Appellants.

  Eric G. Parker of Bauer, Gravel, Farnham, Nuovo, Parker & Lang, Burlington,
    for  Defendant-Appellee.


  PRESENT:  Reiber, C.J., Dooley, Johnson, Skoglund and Burgess, JJ.

       ¶  1.  DOOLEY, J.   Plaintiffs Danny L. DeGraff, Nancy R. Degraff,
  and MBS Hardware & Lumber, Inc., appeal from the trial court's order in
  this quiet-title action.  The court determined that, pursuant to the terms
  of their deed, plaintiffs possessed a twenty-seven-foot-wide triangular
  easement on land owned by defendant Norman Burnett, which they could use
  for garage space and storage of lumber.  Plaintiffs argue that the trial
  court erred in: (1) interpreting their deed; (2) denying their claim for
  damages; and (3) denying their request for a jury trial.  We affirm.
   
       ¶  2.  Plaintiffs and defendant own adjoining commercial lots in
  Milton, Vermont.  Plaintiffs purchased their lot, Lot 5, in 1990 from
  William and Lois Warren.  Lot 5 has westerly frontage on Route 7, and
  easterly frontage on Town Highway 47 (TH 47).  It is about twice as long as
  it is wide, and it is shaped "like a rectangle that has been bent against
  someone's knee."  Plaintiffs operate Milton Building Supply, a lumber and
  hardware business, on their lot, as did the Warrens before 1990.

       ¶  3.  Plaintiffs' deed contained two express easements.  The first,
  at issue in this appeal,  burdened an adjacent lot, Lot 3, then owned by
  the Warrens and now owned by defendant.  The deed specifically provided: 

     The property herein conveyed has the benefit of an easement across
    the northerly boundary of Lot 3 as depicted on said plan, for the
    purpose of storing lumber and garage space for the lumber business
    located on Lot 5.  This easement is 27 feet in width at its widest
    point, extending southerly from the southeasterly corner of Lot 5. 
    The easement area follows an existing fence line.

  Plaintiffs were also granted a right of "ingress and egress" across the
  northern boundary of Lot 7, another adjacent lot owned by the Warrens.

       ¶  4.  In 2002, Mr. Warren deeded Lot 3 to defendant.  The deed is
  expressly subject to plaintiffs' easement and  provides that "[n]o warranty
  is made that the size and exact location of said easement are as shown on
  any survey plans."  Lot 3 is shaped "like a square with a tail."  It fronts
  TH 47 on the east, Lot 5 on the north, and Lot 7 on the west.  Lot 3 does
  not extend to Route 7, and it is only half as long as Lot 5. 
   
       ¶  5.  At about the time that defendant took possession of Lot 3 in
  2002, plaintiffs made improvements to the easement property.  They built up
  the easement path with gravel to accommodate large delivery trucks,
  extended the existing fence line, and put a gate at the entrance to TH 47. 
  Shortly thereafter, defendant removed the gate, the gravel, and the fence. 
  Plaintiffs then filed a quiet-title action and a claim for damages, seeking
  to clarify the boundaries of their easement, receive compensation for the
  destruction of their improvements, and resume their asserted use of the
  easement as an access point for trucks delivering lumber and other
  merchandise. 

       ¶  6.  In October 2002, defendant moved for partial summary judgment,
  arguing that plaintiffs' deed was unambiguous in its description of two
  sides of the easement area and in its description of the allowed use.  He
  asked the court to exclude any extrinsic evidence offered by plaintiffs on
  these issues.  Plaintiffs opposed the motion, and filed a cross-motion for
  summary judgment on all issues.  They asserted that the "fence line"
  referenced in the deed was sixty-five feet from the southeast corner of Lot
  5, not twenty-seven feet as set forth in the deed.  According to
  plaintiffs, they were entitled to the wider easement despite the reference
  to the twenty-seven-foot  width because the fence line, as a monument,
  controlled over the metes-and-bounds description as a matter of law. 
  Plaintiffs also argued that their easement necessarily included a right of
  ingress and egress from TH 47.
   
       ¶  7.  In an April 2003 order, Judge Dennis Pearson denied both
  motions.  He found defendant's motion inadequately supported and concluded,
  as to plaintiffs' request, that extrinsic evidence would be needed to
  resolve ambiguities in the deed as to both the allowed use and the location
  of the easement.  As to allowed use, the court rejected plaintiffs'
  assertion that they necessarily possessed a right of ingress and egress,
  explaining that no such right was conveyed by the deed.  Rather, the deed
  plainly stated that the easement was to be used for "storing lumber and
  garage space."  The court found it apparent that Mr. Warren knew how to use
  appropriate language when he intended to convey a right of access, and it
  also noted that plaintiffs had access from TH 47 to the storage area across
  their own property.

       ¶  8.  As to location, the court found that the only descriptions of
  the easement in the deed that had any precision were that: (1) its widest
  point was twenty-seven feet measured "southerly" from the "southeasterly
  corner of Lot 5," a corner that could be located, and that (2) it "follows
  an existing fence line."  While plaintiffs argued that the easement, as
  described, abutted and had as its actual southerly boundary the existing
  fence line, the court found that this boundary would make the easement area
  approximately sixty-five feet wide at the edge of TH 47 (where the
  southeasterly corner of Lot 5 was located), which was clearly contrary to
  and inconsistent with the express deed language.  Defendant, on the other
  hand, argued that the easement was twenty-seven feet at its widest point,
  as described in the deed, and its southerly boundary ran from that point
  parallel to the fence line.  

       ¶  9.  The court found both interpretations plausible given the
  imprecise phrase, "follows an existing fence line."  Moreover, the court
  explained, because defendant's preferred construction would harmonize both
  the express terms of the deed, and the existing "monument" on the ground,
  there was arguably no conflict to trigger the rule strongly urged by
  plaintiffs, that "in [any] conflict between courses and distances, and
  known boundaries and monuments, courses and distances must yield."  In any
  event, the court concluded, disputed issues of material fact precluded
  entry of judgment in plaintiffs' favor. 
   
       ¶  10.  After a three-day trial before Judge Richard Norton, the court
  issued its final order, which relied upon and partially incorporated Judge
  Pearson's order denying summary judgment.  The court explained that, in
  light of the earlier finding of ambiguity, it had taken extrinsic evidence
  to establish the easement with precision, including the circumstances
  surrounding contract formation as well as hearsay statements from the
  grantor regarding the easement's boundaries.(FN1)  It ultimately adopted
  defendant's proposed construction of the deed.  

       ¶  11.  In reaching its conclusion, the court was unpersuaded by the
  extrinsic evidence offered by plaintiffs.  Plaintiff Danny DeGraff
  testified, for example, that Mr. Warren promised to convey him an easement
  up to the fence line, and that plaintiffs had been using the area up to the
  fence line since 1990.  Nonetheless, the court explained, the deed plainly
  provided that the easement was twenty-seven feet at its widest point,
  extending southerly from the southeasterly corner of Lot 5, and neither Mr.
  DeGraff nor Mr. Warren's former wife, Lois Strong, could explain why or how
  the explicit twenty-seven-foot measurement was inserted into the deed. 

       ¶  12.  While a 1998 survey map depicted plaintiffs' easement as
  extending sixty-five-feet at its base, the map contained a disclaimer
  indicating that it depicted the easement as it appeared on the ground in
  1998 when plaintiffs were admittedly occupying the entire area in question. 
  Given this, as well as the surveyor's testimony that his map was not
  conclusive on the width of the easement, the court found that the survey
  map did not represent what the easement should be under the terms of the
  deed.   
   
       ¶  13.  In contrast, the court found that defendant produced evidence
  to credibly support his assertion that Mr. Warren told him that the
  sixty-five-foot easement boundary depicted on the 1998  survey map
  encroached onto Lot 3.  Defendant testified to this effect.  An individual
  named Steve Jangraw also testified that he looked at Lot 3 in 2001 with
  defendant and Mr. Warren.  He stated that Mr. Warren told them that the
  existing fence was not a boundary line but rather, plaintiffs' easement ran
  twenty-seven feet south from a pin near a mailbox on the road, and this
  measurement was reflected in plaintiffs' deed.  The court found Mr. Jagraw
  persuasive and credible, and it adopted his testimony as factual. 

       ¶  14.  The court also credited the testimony of David Bowers, an
  individual who had extensive experience with maps and surveying.  Mr.
  Bowers testified that he laid out the easement's boundaries, starting from
  a pin that marked the southeast corner of Lot 5, proceeding twenty-seven 
  feet southerly, and then proceeding along the existing fence line
  approximately ninety feet.  The court found Mr. Bowers's testimony
  compelling and his findings conclusive on the measure and nature of the
  easement.  

       ¶  15.  In light of this and other evidence supporting the
  twenty-seven-foot measurement, the court concluded that the phrase "follows
  an existing fence line" in the deed must mean "to run besides" - follow
  along - to a point logically narrower than the fence line.  The court found
  that this  interpretation harmonized all of the deed's terms - a preferred
  construction - and it was uncontradicted by any evidence offered by Mr.
  DeGraff.  Rather than reading out the twenty-seven-foot language, as
  plaintiffs suggested, the court found that the evidence showed that Mr.
  Warren understood the easement to extend only that far.  In reaching its
  conclusion, the court found Mr. DeGraff's testimony entitled to less weight
  than that of other witnesses because it was essentially self-serving.  The
  court also found Mr. Warren's hearsay statement more credible in that it
  explained the existence of the twenty-seven-foot language in plaintiffs'
  deed.  
   
       ¶  16.  The court thus concluded that the easement area was that
  described by Mr. Bowers above - a triangular area, twenty-seven feet at its
  base, that followed a line parallel to the fence line, which was consistent
  with the deed language.  In this respect, the court explained, it accepted
  Mr. DeGraff's argument that the fence line was a monument in the deed. 
  But, the court concluded, the monument marked the direction of the easement
  rather than its boundary.  Therefore, it did not control over the clear
  metes-and-bounds description but rather informed the direction of that
  distance.

       ¶  17.  As to the allowable use of the easement, the court explained
  that the DeGraffs had presented evidence of their current and previous use
  of the easement as essentially a commercial driveway and storage area, but
  they offered no other evidence that would clarify the meaning of the
  language in their deed and the intent of the parties.  The court found
  plaintiffs' mixed use inconsistent with the language of the deed, which
  gave them only a right to store lumber and use the easement for garage
  services.  None of the evidence offered supported use of this easement as
  an ingress/egress or otherwise as an access point to the rear of Lot 5. 
  Thus, because such use was unsupported by either the language of the deed
  or the evidence of its meaning, the court concluded that it could not be
  continued.  The court also rejected plaintiffs' claim for damages arising
  from the loss of the gate or any structures on the encroached area.  This
  appeal followed. 
   
       ¶  18.  Plaintiffs argue that the court erred in interpreting the
  terms of their deed.  They first assert that the deed is unambiguous and
  that no extrinsic evidence was required to ascertain the parties' intent. 
  According to plaintiffs, the phrase "follows an existing fence line" can
  mean only that the fence line itself is the boundary, and any discrepancy
  between the twenty-seven-foot measurement and the fence line must be
  resolved in favor of the fence line as a matter of law.  Assuming that
  ambiguity does exist, plaintiffs argue that the court erred by looking
  beyond the parties' intent at the time of conveyance and engaging in a
  "general survey" of the situation.  They also assert that the court
  committed reversible error by excluding certain evidence relevant to the
  parties' intent. 

       ¶  19.  We find no error.  As discussed below, we conclude that the
  trial court properly considered extrinsic evidence to resolve ambiguities
  in the deed, and its findings regarding the parties' intent are supported
  by the record.   

       ¶  20.  Our master rule in construing a deed is that "the intent of
  the parties governs."  Main St. Landing, LLC v. Lake St. Ass'n, Inc., 2006
  VT 13, ¶ 7, 179 Vt. 583, 892 A.2d 931 (mem.) (citation omitted).  In
  ascertaining intent, we must "consider the deed as a whole and give effect
  to every part contained therein to arrive at a consistent, harmonious
  meaning, if possible."  Id.  A deed term is ambiguous if "reasonable people
  could differ as to its interpretation." Trs. of Net Realty Holding Trust v.
  AVCO Fin. Servs. of Barre, Inc., 144 Vt. 243, 248, 476 A.2d 530, 533
  (1984).  If a writing is unambiguous under this standard, we must enforce
  the terms as written "without resort to rules of construction or extrinsic
  evidence."  Main St. Landing, LLC, 2006 VT 13, ¶ 7.  If ambiguity exists,
  however, the "interpretation of the parties' intent becomes a question of
  fact to be determined based on all of the evidence - not only the language
  of the written instrument, but also evidence concerning its subject matter,
  its purpose at the time it was executed, and the situation of the parties." 
  Id. (citation omitted).  
   
       ¶  21.  We begin with the easement's location.  The deed provides that
  the easement "is 27 feet in width at its widest point, extending southerly
  from the southeasterly corner of Lot 5.  The easement area follows an
  existing fence line."  As the trial court found, this description is
  ambiguous.  See id. (Supreme Court reviews finding of ambiguity de novo). 
  It could be read to mean that the easement area extended to the fence line
  itself, although this would contradict an express term in the deed.  It
  could also mean that the easement extended twenty-seven feet from the
  southwest corner and then ran in a line parallel to the fence line. 
  Plaintiffs rely heavily on dictionary definitions of the term "follows,"
  yet in the context of the writing above, the phrase "follows an existing
  fence line" is imprecise and capable of more than one reasonable meaning. 

       ¶  22.  Given that the deed's reference to an alleged monument was
  itself ambiguous, the rule of construction urged by plaintiffs does not
  control the interpretation of the deed's terms.  Cf. Marshall v. Bruce, 149
  Vt. 351, 352, 543 A.2d 263, 264 (1988) (rule of construction that monuments
  referred to in the grant description control over courses and distances
  because it is more likely that there would be a mistake or misunderstanding
  about the course or distance than about the boundary or monument).  Indeed,
  as the trial court noted in its initial ruling, the two references do not
  necessarily conflict, and they can in fact be harmonized. 

       ¶  23.  Because the deed was ambiguous, the court properly considered
  extrinsic evidence to discern the parties' intent.  See Kipp v. Estate of
  Chips, 169 Vt. 102, 107, 732 A.2d 127, 131 (1999); see also 14 R. Powell,
  Powell on Real Property, § 81A.05[3][e], at 81A-102 (M. Wolf ed. 2000)
  (explaining that extrinsic evidence may be introduced to explain or clarify
  an ambiguous written description but may not be used to contradict the
  written description).  As reflected above, the court found that although
  plaintiffs asserted that the grantor actually intended to convey them an
  easement up to fence line, they could not explain why or how the
  twenty-seven-foot measurement was included in the deed.  Defendant, on the
  other hand, presented evidence, which the court found credible, that Mr.
  Warren intended to convey an easement twenty-seven-feet wide at its base,
  which was consistent with the language of the deed.  The court was not
  obligated to accept the evidence offered by plaintiffs regarding the
  parties' intent. 
   
       ¶  24.  Plaintiffs assert that the court should not have considered
  evidence that did not directly relate to the intent of the grantors at the
  time of the conveyance to plaintiffs.  In fact, defendant's evidence did go
  to the intent of Mr. Warren with respect to the property interest conveyed
  to plaintiffs.  Moreover, our rule is that when the court finds a deed
  provision ambiguous, "the proper interpretation becomes a question of fact,
  to be determined on all relevant evidence."  Kipp, 169 Vt. at 107, 732 A.2d 
  at 131.  The evidence was relevant to show Mr. Warren's intent.  It was
  admissible under a specific exception to the hearsay rule.  See V.R.E.
  804(b)(4)(C) (out-of-court statements from unavailable witness as to
  boundaries of land admissible as exception to hearsay rule).  The weight to
  be accorded the evidence must be determined by the trial court, not this
  Court. 

       ¶  25.  Based on the evidence presented, the court's conclusion that
  the phrase "follows the existing fence line" must mean "running in a line
  parallel to" was sound.  The interpretation was  based on evidence in the
  record regarding intent, consistent with the language of the deed, and it
  harmonized all of the deed's terms.  See Main St. Landing, LLC, 2006 VT 13,
  ¶ 7 (In determining intent, we "must consider the deed as a whole and give
  effect to every part contained therein to arrive at a consistent,
  harmonious meaning, if possible."); see also Somon v. Murphy Fabrication &
  Erection Co., 232 S.E.2d 524, 527 (W. Va. 1977) ("Calls, if they can be
  applied and harmonized in any reasonable manner in determining boundaries
  of a tract of land cannot be disregarded and as few calls or descriptions
  should be disregarded as is possible." (citations omitted)).  While
  plaintiffs argue that the "clear intent" of the deed was to convey an
  easement to the fence line, the court found otherwise and its decision is
  supported by the record.  See Mullin v. Phelps, 162 Vt. 250, 260, 647 A.2d 714, 720  (1994) (Supreme Court will not disturb the trial court's factual
  findings unless they are clearly erroneous, meaning there is no credible
  evidence in the record to support them).  We will not reweigh the evidence
  on appeal.  The court did not err in determining the easement's
  location.(FN2)
    
       ¶  26.  Turning to the allowed use, we reject plaintiffs' contention
  that a right of ingress and egress was "implicit and consistent with" the
  intended use of their easement.  The permissible extent of the use of the
  easement must be determined from the language in the deed.  See Edwards v.
  Fugere, 130 Vt. 157, 163, 287 A.2d 582, 587 (1972); see also 14 R. Powell,
  Powell on Real Property, § 34.12, at 34-134 to 34-135.  The language used
  in this particular portion of the deed is unambiguous, and it plainly does
  not include the right of ingress and egress.  Looking at the deed as a
  whole, it is clear that the grantor knew how to use these specific terms
  when he intended to convey such a right.  The trial court properly enforced
  the plain language of the parties' agreement.  See Kipp, 169 Vt. at 107,
  732 A.2d  at 131 ("[W]hen looking at particular language in a deed, the
  court must accept the plain meaning of the language and not look to
  construction aids if the language is not ambiguous.").  
   
       ¶  27.  Next, we consider and reject plaintiffs' contention that we
  should reverse the court's judgment because it improperly excluded part of
  plaintiffs' evidence on the intent of their grantors in conveying the
  easement.  According to plaintiffs, the court erroneously excluded relevant
  testimony regarding intent from Mr. DeGraff, Ms. Strong, attorney Roger
  Kohn, and Mr. Bowers, based on its mistaken belief that the testimony was
  inadmissible because of the doctrine of merger.  Regardless of whether the
  court's theory of merger was correct, plaintiffs fail to demonstrate that
  they suffered any harm from the exclusion of this evidence.  See V.R.C.P.
  61 (Court will disregard errors that do not affect parties' substantial
  rights).  

       ¶  28.  As we have noted, Rule 61 "requires examination of just how
  the court's ruling affected the rights of the plaintiffs, not merely
  procedurally, but in matters truly of substance."  Ordinetz v. Springfield
  Family Ctr., 142 Vt. 466, 470, 457 A.2d 282, 284 (1983).  The record shows
  that, despite the rulings that plaintiffs identify, all of the witnesses
  plaintiffs mention testified to the intent underlying plaintiffs' deed. 
  The court was unpersuaded by this evidence, finding that plaintiffs failed
  to explain why the grantors had included a specific twenty-seven-foot
  measurement in the deed.  It is difficult to see how any additional
  evidence on this issue would have led to a different outcome.  Nonetheless,
  we briefly address plaintiffs' specific claims of evidentiary error.  

       ¶  29.  The record shows that when Mr. DeGraff started to explain why
  Mr. Warren might have intended to grant a wider easement - one that would
  allow plaintiffs access to the storage area from TH 47 through defendant's
  property - defendant objected, and the objection was sustained.  Mr.
  DeGraff later explained, without using the word "intention," how Mr. Warren
  had used this access point in the past and why allowing such highway access
  made sense for the lumber operation on Lot 5.  In light of this testimony,
  as well as Mr. DeGraff's additional statements regarding intent, any error
  in the court's ruling was harmless. 
   
       ¶  30.  Ms. Strong testified that she and Mr. Warren intended to
  convey plaintiffs an easement "[r]ight up to the fence line."  As with Mr.
  DeGraff, when Ms. Strong was asked about the purpose of the easement, the
  court sustained defendant's objection, finding that the purpose of the
  easement was unambiguously and specifically stated in the deed.  The court
  did not commit reversible error in so ruling.  See Kipp, 169 Vt. at 107,
  732 A.2d  at 131 (extrinsic evidence may not be used to vary the terms of an
  unambiguous writing).    

       ¶  31.  Roger Kohn, the attorney who drafted plaintiffs' 1990 deed for
  Mr. Warren, also testified.  Although the trial court indicated that it was
  going to exclude testimony from Mr. Kohn regarding the parties' intentions,
  it did allow him to testify to any statements Mr. Warren may have made
  about the easement's boundaries.  See V.R.E. 804(b)(4)(C) (out-of-court
  statements from unavailable witness as to boundaries of land admissible as
  exception to hearsay rule).  Mr. Kohn subsequently stated that Mr. Warren
  told him "that it was his understanding that the intention [of]  the
  easement was that it go to the fence line and that . . . where [the
  surveyor Harold] had put it was the correct location, but that the language
  in the deed differed from what was shown on the survey." Given this
  testimony, we fail to see how plaintiffs were harmed by the court's initial
  ruling.  The exclusion of Mr. Bowers' testimony, cited by plaintiffs, was
  equally harmless.
   
       ¶  32.  We similarly reject plaintiffs' general challenge to Mr.
  Bowers' testimony.  Plaintiffs assert that Mr. Bowers was never properly
  qualified as an expert witness, they had a continuing objection to his
  testimony, and his statements concerning certain legal principles
  demonstrate that he was unreliable as a witness.  These arguments are
  without merit.  While Mr. Bowers may have been disclosed initially only as
  a fact witness, the trial court specifically recessed the hearing when Mr.
  Bowers appeared to be venturing into expert witness testimony.  The court
  directed defendant to disclose his background and other materials to
  plaintiffs pursuant to V.R.C.P. 26(b)(4), and it allowed plaintiffs time to
  depose Mr. Bowers if they so chose.  Trial resumed approximately a month
  later, at which point, the trial court found sufficient evidence to
  establish Mr. Bowers' qualifications as an expert.  Plaintiffs raised no
  objection to Mr. Bowers' testimony, and there is no support for their
  assertion that they had a "continuing objection" to this witness.  Finally,
  it was for the trial court, not this Court, to assess Mr. Bowers'
  credibility.  See Mullin v. Phelps, 162 Vt. at 261, 647 A.2d  at 720 (role
  of Supreme Court in reviewing findings of fact is "not to reweigh evidence
  or to make findings of credibility de novo").  The record discloses no
  reversible evidentiary errors.

       ¶  33.  Plaintiffs next argue that they were entitled to damages
  because it was undisputed that defendant destroyed their fence, gate, and
  gravel driveway.  The trial court rejected this claim, finding that
  plaintiffs were not entitled to damages for the loss of any structures not
  within the easement as the court construed it.  We also note that
  defendant's evidence supported the conclusion that he engaged in the
  minimum self-help necessary to remove the trespassing structures and
  constructed a replacement fence on his land at the easement boundary found
  by the trial court.

       ¶  34.  Plaintiffs committed a trespass by making improvements on
  defendant's land in support of an access right they did not enjoy.  See
  Restatement (Second) of Torts § 158 (1965).  It appears that plaintiffs
  made at least some of these improvements after it had become clear that the
  boundaries of the easement were disputed.  Under these circumstances, they
  are not entitled to a remedy. 

       ¶  35.  Finally, plaintiffs argue that the trial court erred in
  denying their renewed request for a jury trial.  They maintain that they
  did not waive their right to a jury trial "in open court" as required for
  an oral waiver by V.R.C.P. 39(a)(1).  This assertion is belied by the video
  recording from the trial court, which unquestionably shows that the waiver
  took place in open court on the record. 
        
       Affirmed.
       

                                       FOR THE COURT:


                                       _______________________________________
                                       Associate Justice



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                                  Footnotes


FN1.  Mr. Warren died after the case arose but before he could be deposed or
  give evidence as to his intent in the deeds.

FN2.  In their reply brief, plaintiffs assert for the first time on appeal
  that their deed for Lot 5 must be read together with a purchase-and-sale
  agreement from the Warrens for the lumber business.  Like other evidence in
  this case, the purchase-and-sales agreement provision cuts both ways.  It
  states that "[s]eller to convey easements in the Warranty Deed to Purchaser
  for . . . [y]ard fence which presently encroaches upon Lot 3."  Yet, as the
  trial court found, the Warrens did not convey an easement for the yard
  fence to plaintiffs in the warranty deed.  Again, we emphasize that the 
  weight to be assigned to the conflicting evidence is for the trial court to
  determine.