1. Licenses — Use of Land
Where mother conveyed property to her son by warranty deed, reserving life estate in herself and also reserving right, while she lived, to convey by instrument a fee simple or lesser estate in the land, and she orally permitted neighbor to run a waterline across the property, son could, after mother's death, compel removal of the line, for the agreement was not by written instrument as required by the deed.
2. New Trial — Grounds — Reversal of Judgment
Where trial court's grant of motion by defendants for judgment, made at close of plaintiff's case, was reversed on appeal, and defendants had not waived their right to present evidence, new trial must be granted. V.R.C.P. 41(b)(2).
Per Curiam.
In 1963 Anna M. Stasieczko conveyed by warranty deed her property in Mt. Tabor to her son, the plaintiff herein, reserving unto herself a life estate and also
Excepting and reserving, nevertheless, unto me . . . the power and authority by instrument executed by me, . . . , during my natural life to convey or mortgage an estate in fee simple absolute or a lesser estate, in and to said land and premises, or any part thereof.
After the conveyance, she orally permitted her neighbors, the defendants, to run a waterline across the property. After his mother's death, the plaintiff brought this action demanding the removal of the waterpipe. The defendants claimed a license from Mrs. Stasieczko. The court, at the close of the plaintiff's case, granted defendants' motion for judgment. In its judgment order it declared that "the defendants have an oral license coupled with an interest to maintain and use the waterpipe that runs over the property of the plaintiff." It is from this judgment that plaintiff appeals. We reverse.
The defendants contend that Mrs. Stasieczko, while she was alive and in possession of the property, had the right to convey an interest in the fee. We agree. The right, however, was conditioned by the terms of the deed itself to be by written instrument only. The defendants admitted that no instrument executed by Mrs. Stasieczko was delivered to them. Because this condition in the deed is unequivocal, we reverse the decision of the trial court. See Davidson v. Vaughn, 114 Vt. 243, 44 A.2d 144 (1945).
Since the defendants have not waived their right to present evidence, see V.R.C.P. 41(b)(2), a new trial must be granted.
Reversed and remanded.