61 N.Y. 348 | NY | 1874
It is doubtful whether there are sufficient facts disclosed by the case and exceptions, as presented to us, to raise the question whether the courts below erred in deciding that the land in dispute was not included in or covered by the description in the deed from Yielding and wife to the Buffalo, Corning and New York Railroad Company, above referred to, and under which the plaintiff claimed title. Although it was conceded, and admitted by the counsel of the respective parties at the trial, that the lands in dispute are south of a line drawn two rods southerly from the center line of the railroad of the said company, as it was located at the time the said deed was given, it does not appear that the northerly side of the land of the Buffalo and Rochester Railroad Company, which was referred to as the boundary on the southerly side of the premises conveyed by the said deed, was designated and marked by any fence, trees, stones, or fixed monuments of any kind; or whether it was so described in the deed under which the Buffalo and Rochester Railroad Company held title as to define with certainty its location; or, indeed, to show that it owned land between a line two rods south of the center line of the plaintiff's road and its own railroad. It can therefore not be claimed that the general rule, that fixed and permanent monuments control courses and distances where there is a discrepancy between them, sustains the position that the plaintiff's grant extends to the land of that company, wherever it may be located. The reason of the rule is said to be that conveyances are supposed to be made with reference to an actual view of the premises *351 by the parties. Hence, courses and distances must be varied to conform to actual or ascertained objects, or fixed boundaries designated or referred to by them; but when it appears, from the designation of quantity or other elements of description, that the courses and distances, from a fixed and determined line, were intended to control monuments, then the latter should be disregarded. The intention of the parties as evidenced by the deed is, in all cases, to determine the location of the premises granted by it. There is nothing in the conveyance in question to indicate, with certainty, that the northerly undefined boundary of the Buffalo and Rochester Railroad Company should fix and determine the southerly line of the premises conveyed by it. On the contrary it is fairly to be inferred from the description therein that it was understood and intended by all the parties to it, that the center line of the road of the Buffalo, Corning and New York Railroad Company, as located when the grant in question to it was made, should control the location of the property conveyed. The general act, authorizing the formation of railroad corporations requires that the line or route of railroads constructed under it shall be fixed on actual survey, and that a map of such location should be filed in the clerk's office of every county through which the road was to run, and a similar requirement of railroad corporations incorporated under special acts of the legislature is generally, if not in all cases, contained in such acts. It was doubtless the object of that company to obtain and the intention of its grantors to grant the land intended to be conveyed to it, for the purposes of its road, and the center line thereof, as actually located by it, was agreed upon as the line from which the land on each side should be measured, and the distances designated in the deed were to limit the extent of the grant. The parties therefore knowing the uncertainty of the description of boundaries by merely referring to other lands, and especially when the remaining lands of the grantors, without any marks defining them, were referred to as the northern boundary, adopted the center line of the grantees' road as fixed, determined and actually located *352 as the controlling line by which the general description was to be limited and controlled, and after such general description added the following expressive terms: "And being 140 feet in length as measured on the center line of said railroad of said grantees as now located, and embracing and hereby intended to convey three rods in width at north side of said center line, and two rods in width on the south side of the same, containing five-tenths of an acre, be the same more or less." This clearly shows that it was unquestionably the intention of the parties (for they so emphatically declare) to make that center line the controlling point along the whole distance thereof, as actually located and thus being in the nature of a monument, from which the boundaries on the north and south sides were to be ascertained, and to make certain by designating specified distances to be measured therefrom what, by the previous general description, was left uncertain. It would be necessary, for the purpose of justifying and sustaining the construction contended for by the plaintiff, to sacrifice and defeat the manifest intention of the parties so expressed and declared, by the adoption, as the only monument to limit the grant, of the indefinite and uncertain boundary of the land of a third party mentioned in the deed, unknown, so far as it appears, to either party, instead of the courses and distances specified therein which can be ascertained and fixed with mathematical precision and certainty by reference to a known line, specially designated for that specific purpose.
Without further discussion of the question, I will conclude by the expression of my general concurrence in the views of DANIELS, J., in his able and exhaustive opinion delivered by him on the affirmance of the judgment by the General Term of the ruling and decision of the learned judge who tried the case at the Circuit.
It follows from what has been said that the judgment appealed from should be affirmed, with costs.
All concur.
Judgment affirmed. *353
