(82 Vt. 59)

DEMERITT v. PARKER. (Supreme Court of Vermont. Washington. Jan. 29, 1909.)

1. ADVERSE POSSESSION (§ 12*)-ACTS CONSTITUTING-CLAIM OF RIGHT.

Acts on land, such as cutting trees for rails, for firewood and the like, do not constitute adverse possession of such land where the acts are not done on the land as owner or under claim of right.

[Ed. Note. For other cases, see Adverse Possession, Cent. Dig. §§ 65, 387-389; Dec. Dig. § 12.*]

2. REFERENCE (8 99*)-REPORT-FINDINGSCONSTRUCTION.

fendant from committing trespasses upon a tract of woodland of about 32 acres in area situated in Waterbury. The orator claimed to own and have possession of the land in question as a part of the orator's home farm of which the orator was, and since 1850 had been, the owner and possessor. The case was heard on pleadings and report of a special master with supplemental reports; and the orator's exceptions thereto. On hearing the exceptions were overruled, and the bill was dismissed, with costs. The orator appealed.

The orator bought his home farm above referred to of William Lampher in 1850 when it was conveyed to him. The master finds that at the time of the conveyance the land in dispute was "measured and appraised by two persons selected by the orator and

A finding of a referee in a suit to enjoin trespass on land that complainant had no title to the disputed land, and did not acquire the same by adverse possession, though in terms applicable to the whole land in dispute, must be construed not to apply to a strip of land of which the other findings showed that complain-Lampher," and that the orator paid Lampher ant did have adverse possession.

[Ed. Note.-For other cases, see Reference, Dec. Dig. § 99.*]

Appeal in Chancery, Washington County; John W. Rowell, Chancellor.

Bill by James Demeritt against John A. Parker to enjoin trespass on land. From a decree dismissing the bill, orator appeals. Reversed, and cause remanded, with directions.

therefor, and that "the orator supposed that Lampher's deed conveyed to him" the land not cover the land in dispute, and the orator in dispute. However, Lampher's deed did tion. The finding that the orator bought and showed no title by deed to the land in quespaid for the land in dispute stands as a part of the report, although in closing his second supplementary report the master says: "The more the evidence is considered the more I

The following is the sketch referred to in am inclined to think that, if I have made a the opinion (the figures indicate rods):

mistake in any of my findings, it is in the finding that the orator ever bought, measured, and paid for the disputed land." The orator had at several times done acts upon the disputed land. He had cut trees for rails, for firewood, for building material, and for pump logs, and he or his grantor had done other acts upon the disputed land which in view of the findings need not be enumerated, for the master finds in his supplemental reports that the orator did not do these acts on the disputed land as owner or under a claim of right. The orator, then, had no title by adverse possession to any land to which the findings last referred to are applicable. The findings are in terms applicable to all the land in dispute, but a certain four-rod strip of land must, we think, be treated as excepted by the master from the operation of these findings in view of other findings in the

The land in question consists of the two "Barnes Pitches" indicated on the above sketch, and the strip eight rods wide, bound-report hereinafter referred to. A part of ed on the north by the "Smalley Pitch" and on the south by the "First Barnes Pitch." The defendant claimed title to this land under a quitclaim deed thereof dated February 21, 1900, from Martha A. Towne, who is the daughter of Joseph Barnes, and who then occupied the whole "Joseph Barnes farm."

Argued before TYLER, MUNSON, WATSON, HASELTON, and POWERS, JJ.

the land in dispute abuts upon the west line of the Demeritt farm, and the master finds that this original west line is indicated by marked trees; but he finds that on the south side of the Demeritt farm, and between that and the farm of one Barnes, a predecessor in title of the defendant, there was a fence which ran west about four rods beyond the line indicated by the marked trees to a point

E. F. Palmer and J. H. Senter, for ap designated as "R" on a sketch referred to pellant. Geo. W. Wing, for appellee.

HASELTON, J. This was a bill in chancery brought by the orator to enjoin the de

by the master (which sketch the reporter is requested to make a part of the statement of the case), and the master finds that for 50 years at least the owners of the Barnes

For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes

*

* that his own brother and sister-inlaw would not have understood, as they testified, that the orator's land ran no further west than the divisional fence on the line marked 'RO' on the plan of the original report; that one of his principal witnesses, Mr. Smith, would not have understood the same thing * if the orator had been claiming to own the land and to be doing the acts as owner."

What acts are referred to above? Very clearly acts on the land further west than the "occupation line" running north through the point marked "R." With regard to the acts of the orator done upon the disputed land, speaking generally, the master states that it is rather difficult to determine wheth

larm have had an open, undisputed, and ex- [cupation line." The master is satisfied that, clusive use and possession of the land west among other things, "the orator would never of a line drawn through the point "R," and have agreed to divide the whole fence besubstantially at a right angle to the division tween him and Barnes, and only divide fence and parallel with the marked tree line, to the point marked 'R' on the plan; and that during the same time Demeritt had that he would never have signed and executa like open, undisputed, and exclusive use and ed the divisional agreement, in which he depossession of the land east of the line so clares that his southwest corner was at 'R'; drawn through the point designated as "R." In 1852 Demeritt and Barnes executed a fence agreement as to the division of the fence referred to, and proceeded to divide the fence in accordance therewith. By this agreement, and by what was done under it, the point "R" was recognized as the southwest corner of Demeritt's land. The point "R" was generally spoken of by the witnesses as the southwest corner of the orator's farm. The line above referred to running. through "R" at right angles to the fence is called by the master the "occupation line." Indeed, in one part of the report the master designates the point "R" as the southwest corner of the orator's land, and the report shows facts which afford ample basis for the master's designation of "R" as such south-er the orator did the acts by permission or west corner. In 1827 or shortly thereafter Barnes built a fence running southwesterly from the point "R" to a ledge. This was not a divisional fence, and its course during its existence was not always the same, but it was maintained from the time it was built down to about 1870 with "R" as its starting point, and the observance of this starting point was a recognition of the significance of the point "R." So far west as that point, Demeritt and his grantor on the one hand, and Barnes on the other, appear from the report to have understood that their lands ran together. The "occupation line" running north from the point "R" was never marked by any fence, but no dispute as to the land arose until shortly after the defendant, in 1900, took a quitclaim deed of the lands in dispute. At one time two ash trees stood near the "occupation line," one a little west of the other. About 11 years before the filing of the master's report, Demeritt sold the easterly tree, and about the same time Mrs. Towne, a grantor of the defendant, sold the westerly tree. The master finds that in 1852 Demeritt did not claim to own west of the "occupation line," and that Barnes had the right to understand that he did not. From the circumstances of the sale of the ash tree by Demeritt the master finds that "the orator did not on this occasion claim" to own west of said "occupation line," and that he understood that Mrs. Towne, the successor of Joseph Barnes, claimed to own west of this line. Most of the reasons given by the master for the general finding that the orator did not do as owner the acts which he did upon the disputed land indicate that such finding applies only to the land west of the "oc

as a trespasser or by way of a mixed occupation with Barnes and his successor, and the master does not undertake to determine how this was. Clearly the above statement of the master was not meant to apply to the strip of land of which, as the master finds, the orator had had for half a century the exclusive possession and use. In view of the findings that the orator bought and paid for the disputed land, of other findings already referred to, and of all the findings of the master, it is considered that the report contains, in effect, a finding that the orator occupied as owner and under a claim of right that portion of the land paid for by him of which for 50 years he had the "open, undisputed, and exclusive use and possession." The southwest corner of the orator's land is, then, the west end of the division fence referred to, the point designated by the master as "R," and his west line is not the marked tree line, but a line parallel to it about four rods west thereof, running northerly from the west end of the division fence referred to.

As to the rest, the greater part of the disputed land, the report shows neither title nor color of title nor possession nor right of possession in the orator. It is therefore unnecessary in this proceeding to consider the title of the defendant thereto. The orator excepted to some findings of the master and to his failure to find in one respect, but with the report construed as it is in this opinion these exceptions are considered to be either groundless or immaterial.

Decree reversed and cause remanded. Let a decree be rendered consonant with the views herein expressed.

the memorandum therein set out falsifies the contract alleged, in that the time of delivery stated in the memorandum is materially different from the time of delivery stipulated in the contract alleged, the latter making the time of delivery dependent upon the plaintiff's readiness and request after the hay was pressed and baled ready to be drawn, while the former says nothing about the plaintiff's readiness and request, but makes the time of delivery dependent upon the readiness of the hay to be drawn, re

[Ed. Note. For other cases, see Frauds, Stat-gardless of the plaintiff's readiness and reute of, Cent. Dig. § 239; Dec. Dig. § 113.*] 2. PLEADING (§ 35*) – DECLARATION

PLUSAGE.

-SUR

Though, in special assumpsit, it is not necessary that the declaration set out the memorandum of the bargain, yet, it having been brought forward therein, it thereby becomes a material part thereof, and cannot be rejected as surplusage, where it shows that the declaration is bad in substance.

[Ed. Note.-For other cases, see Pleading, Cent. Dig. § 76; Dec. Dig. § 35.*]

PLEADER.

3. PLEADING (8 34*)-CONSTRUCTION AGAINST Plaintiff, in special assumpsit, having set out the memorandum of the contract of sale of hay in his declaration and relied upon it alone to validate the contract, it will not be taken that any other requirement of the statute of frauds was complied with, nor that the contract itself was in writing; the presumption being that plaintiff has stated his case as favorably to himself as possible.

[Ed. Note. For other cases, see Pleading, Cent. Dig. § 66; Dec. Dig. § 34.*]

Exceptions from Franklin County Court. Special assumpsit by A. G. Crosby against Arthur Bouchard. Judgment for plaintiff, and defendant excepts. Reversed and remanded.

Argued before ROWELL, C. J., MUNSON, WATSON, and HASELTON, JJ.

quest. This is a material difference; and, although it was not necessary to stipulate the time of delivery in the contract as without it the law would imply a reasonable time, yet, having been stipulated therein, it became a material part thereof, and therefore should have been stated with substantial accuracy in the memorandum, and, as it was not, the memorandum has no effect as a memorandum of the contract alleged. Browne, Frauds (4th Ed.) § 371a. And, although it was not necessary to say anything about the memorandum in the declaration, yet, it having been brought forward therein as it was, it thereby became a material part thereof, and cannot be rejected as surplusage, for it shows that the declaration is bad in substance, inasmuch as no contract for the sale of goods, wares, or merchandise for the price of $40 or more is valid, though unless the requirements of the statute are proved by oral testimony without objection, complied with. Strong v. Dodds, 47 Vt. 348. And the plaintiff having seen fit to bring forward the memorandum in his declaration, and therein to rely upon it alone to validate the contract declared upon, it will not be taken that any other requirement of the

D. W. Steele, for plaintiff. E. A. Ayers, statute was complied with, nor that the for defendant.

contract itself was in writing, for nothing will be assumed in favor of the plaintiff; the presumption being that he has stated his case as favorably to himself as possible.

Judgment reversed, demurrer sustained, declaration adjudged insufficient in substance, and cause remanded.

ROWELL, C. J. This is special assumpsit for not delivering hay bargained and sold for more than $40. It does not appear whether the bargain itself, as distinguished from the memorandum of it, was in writing or not. The declaration alleges that the defendant agreed to press and bale the hay, and deliver it on the cars at Highgate "at any time the plaintiff was ready to take the same and should request after the same (Supreme Court of Vermont. 18, 1909.) was pressed and bailed ready to be drawn to the cars, for which the defendant was to MONEY RECEIVED (8 18*)-EVIDENCE. Where defendant received the proceeds of the receive $10.50 per ton, with payment to be sale of his land and of his and plaintiff's permade at the place of delivery." The declara-sonalty, and it appeared that, while the value tion then sets out the tenor of a memoran

dum of the bargain, made in writing and signed by the defendant, by which it appears that the hay was "to be taken when ready to draw to cars by Adams and Bouchard." The sufficiency of the declaration is challenged by demurrer both as to substance and form. As to substance, it is objected that

(82 Vt. 40)

Windsor. Jan.

HOWE v. HOWARD.

of each item of property was agreed on, the price paid was less than the aggregate of the items, and defendant showed that the price at which the property was sold was not the price with which plaintiff was to be credited, defendant, in an action by plaintiff for the share of the proceeds, was entitled to show the value of his personal property included in the sale.

[Ed. Note. For other cases, see Money Received, Dec. Dig. § 18.*]

Exceptions from Windsor County Court; | mined by any agreement; and that a valua George M. Powers, Judge.

petent, and, if so, whether the company knew or should have known it, held for the jury.

[Ed. Note.-For other cases, see Master and Servant, Dec. Dig. § 287.*]

7. MASTER AND SERVANT (§ 270*) INJURIES

TO SERVANT-ADMISSIBILITY OF EVIDENCE. In a servant's action for injuries caused by an engine running in on the wrong switch, and striking cars between which plaintiff was working, where defendant claimed that the engine ran in on that track because the switch had been changed, plaintiff could prove that the switch was not locked at the time, and that the yard switches were usually locked and that one had been until within a year, as tending to show negligence in not locking the switch.

TYLER, J. The record shows that 15 exceptions were taken by the defendant to the admission of evidence of which Nos. 3, 9, 10,

[Ed. Note. For other cases, see Master and Servant, Cent. Dig. § 925; Dec. Dig. § 270.*] 8. TRIAL (§ 178*)—DIRECTION OF VERDICT14, and 15 are waived. Nos. 1 and 2 are not HEARING.

On motion for the direction of a verdict in a servant's action on the ground of contributory negligence, the evidence should be considered in the light most favorable to plaintiff, and, if there was evidence tending to show that he was exercising the care of a prudent man under the circumstances, the motion could not be granted.

[Ed. Note. For other cases, see Trial, Cent. Dig. §§ 401-403; Dec. Dig. § 178.*]

insisted upon in the brief. Nos. 4, 5, 6, 7, 11, and 12 relate to the switch, and are considered under one head in the brief. Exceptions were also taken to the charge as given by the court and to his omission to charge. The location of the tracks in the defendant's railroad yard at Island Pond is fully stated in the opinion in Place v. Grand Trunk Ry. Co., 80 Vt. 196, 67 Atl. 545. The northerly

9. NEGLIGENCE (§ 136*)-CONTRIBUTORY NEG-track, No. 1, was the boiler house track, and LIGENCE QUESTION FOR JURY.

If the evidence to show contributory negligence justifies opposing inferences, the question is for the jury.

[Ed. Note. For other cases, see Negligence, Cent. Dig. § 277; Dec. Dig. § 136.*]

10. MASTER AND SERVANT (§ 289*)-INJURIES TO SERVANT - CONTRIBUTORY NEGLIGENCEQUESTION FOR JURY.

In a servant's action for injuries sustained by a switch engine striking cars while plaintiff was climbing through them, whether plaintiff ought to have known of the danger and was negligent in climbing between the cars under the circumstances held a jury question.

[Ed. Note. For other cases, see Master and Servant, Dec. Dig. § 289.*]

it and No. 2, called in the trial the "ash pit track," were connected by a split switch. No. 3 also led to the ash pit which was situated between the coal chute and the boiler house. No. 5 led past the coal chute, and No. 6 went upon it. There was a split switch in No. 3, about 10 feet south of the other switch. These were the only split switches in that part of the yard. An engine was being backed to the west on track No. 1, and Boulet, the hostler in charge, intended to go upon the ash pit track No. 2, supposing that the switch was set for that track, but the engine continued upon track 11. MASTER AND SERVANT (§ 296*)-INJURIES No. 1 and struck the first of a string of TO SERVANT-INSTRUCTIONS CONTRIBUTORY four or five coal cars that stood there, knockNEGLIGENCE-KNOWLEDGE OF DANGER. In a servant's action for injuries sustained them along the track, and caused the coled by an engine striking cars while plaintiff was climbing between them, an instruction that, to find for plaintiff, the jury must find the existence of one of the acts of negligence charged, and that plaintiff was not himself negligent, and did not know the danger, was defective for not calling the jury's attention to plaintiff's situation and instructing that he was chargeable with knowledge of the danger that, in the exercise of the care of a prudent man, he might have obtained, as well as with his actual knowledge thereof.

[Ed. Note. For other cases, see Master and Servant, Dec. Dig. § 296.*]

12. TRIAL (§ 194*)-INSTRUCTIONS-INVASION OF PROVINCE OF JURY.

In a servant's action for injuries sustained by an engine striking cars while plaintiff was climbing between them, where the evidence made it a jury question whether he was negligent in going between them, an instruction that it is the duty of an ordinarily prudent man to look for moving engines before going between cars in a railroad yard, and the failure to do so is negligence, was properly refused, as being in

effect a motion for a verdict.

[Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 439-456; Dec. Dig. & 194.*]

lision by which the plaintiff was injured;
both feet being badly crushed. The hostler
was hard of hearing. The switch was equip-
ped with a switch target, which, the defend-
ant's evidence tended to show, was set in a
manner that indicated that the switch was
placed to let the engine upon track No. 1.
The hostler did not look to see how the
switch target was placed as he approached
it with his engine.
serve the position of the target, and, if he
It was his duty to ob-
had looked, he could have seen it, and, if it
was set wrong, have avoided the collision.
The switch stand was not then equipped
with a lock, though it had been till within
six months or a year of the accident, and it
was the defendant's custom to have locks
upon similar switches in the yard.

The defendant's evidence tended to show

that the engine took track No. 1 because

the switch had been turned and was open for that track. It admitted that the accident was caused by the negligence of Bou