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M.B.M. Inc. v. George

decided: August 4, 1981.

M.B.M., INC., APPELLEE
v.
RUPERT A. GEORGE, ELENORA GEORGE, RUPERT GEORGE CONSTRUCTION, INC., AND BANK OF NOVA SCOTIA, RUPERT A. GEORGE, ELENORA GEORGE, AND RUPERT GEORGE CONSTRUCTION, INC., APPELLANTS



APPEAL FROM THE DISTRICT COURT OF THE VIRGIN ISLANDS DIVISION OF ST. THOMAS AND ST. JOHN (D.C. Civil No. 80-87)

Before Adams, Weis and Garth, Circuit Judges.

Author: Weis

Opinion OF THE COURT

The ownership of a right of way upon which defendants' structures encroach is at issue here. As grantees of abutting properties, defendants argue they obtained ownership to the center line of the right of way when plaintiff conveyed the lots to them. Plaintiff asserts that the intention was that it retain ownership of the right of way so as to facilitate its transfer to the government. The district court adopted the plaintiff's view and granted an injunction against the defendants. We agree that in this case the presumption in favor of a grant to the center of an adjoining roadway does not apply and affirm.

MBM, Inc. sought injunctive relief, alleging that a stone wall and the foundation of a building being constructed by the defendants encroached on its land. After a hearing, the district court ordered the defendants to remove part of the stone wall and to refrain from trespassing further on the plaintiff's property.

The plaintiff, MBM, had purchased all of parcel 6-Estate Contant on St. Thomas in 1965 and subdivided the tract into a number of lots. The defendants, Rupert A. George and his wife, Elenora M. George, purchased lot 6-35 in August and adjacent 6-13 in November of 1969. The deeds to both lots described the boundaries by metes and bounds between certain iron boundposts, some of which were described as "on edge of estate road right of way." In several places, the boundary was defined as running "along edge of estate road right of way."

A short time after the Georges bought the lots, Rupert George Construction, Inc. was hired to pave an 18 foot wide strip within the 30 foot right of way.*fn1 The Georges later constructed a stone wall near the section of paved surface closest to the southwest corner of lot 6-35. Part of this wall did not follow the Georges' property line, but was built on the unpaved section of the right of way.

In 1979, the Georges began building a house on lot 6-35 and applied to defendant Bank of Nova Scotia for a construction mortgage. A survey made at the bank's request revealed that the Georges' stone wall and part of the new construction was encroaching on the right of way. The bank refused to provide the financing unless the cloud on the title was removed.

Rupert George brought the problem to the attention of William Clarenbach, the president of MBM, who lived across the road. On behalf of MBM, Clarenbach agreed to convey enough of the right of way to the Georges so that the foundation of the new building would no longer encroach. In addition, Clarenbach and his wife agreed to convey part of their lot to MBM so that the 30 foot right of way would remain uniform. In exchange, Rupert George agreed to take down the encroaching wall.

MBM carried out its promise by conveying the necessary land, designated as lot 6-39, to the Georges by deed dated December 6, 1979. On January 3, 1980 the Georges gave a first mortgage on lots 6-35 and 6-39 to the Bank of Nova Scotia. A few days thereafter, Clarenbach demanded that George remove the portion of the wall as he had promised. Apparently alienated by the tone of the demand, George refused.

MBM then filed this action for injunctive relief and damages. The district court entered a temporary restraining order enjoining all construction in lot 6-39 and the right of way. The court also ordered a consolidated hearing on the request for a preliminary injunction and a trial on the merits.

At the hearing the defendants moved to dismiss, arguing that MBM was not a proper plaintiff because it did not retain any interest in the right of way after it conveyed the abutting property. The district court disagreed, holding that the description of lot 6-35 was unambiguous and, as was intended, did not include the right of way. MBM therefore was found to be a proper plaintiff. The court also rejected defendants' contentions that they had trespassed innocently and that they were being singled out for disparate treatment when other encroaching landowners were not sued. The court held that the defendants had intentionally reneged on their agreement and would be held to their bargain. An injunction issued requiring the Georges to remove the encroaching wall and prohibiting them from performing any other construction which would impinge on plaintiff's right of way.*fn2 Pending appeal, the district court stayed the portion of the order requiring removal of the wall.

On appeal, the defendants renew their challenge to plaintiff's standing, insisting that it does not own the ground included within the right of way. They rely upon the rule adopted by a majority of states that a grant of land bordering on a public highway generally extends to the middle of the road. Consistent with this principle, they argue, is 28 V.I.C. ยง 47 (Equity 1975 & 1980 Supp.), which reads in pertinent part:

"The following are the rules for construing the descriptive part of a conveyance of real property when the construction is doubtful and there are no other ...


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