Bailey v. Rolfe

16 N.H. 247 | Superior Court of New Hampshire | 1844

Gilchrist, J.

This is a writ of entry, and the tenant ‘ disclaims that part of the land which lies south and west of the lines described in the act of the legislature, having for its object to change the boundaries of certain towns, and pleads nul disseizin as to the land which lies north and east of those lines. This plea raises a question of jurisdiction, and requires a construction to be put upon that act of the legislature, and an inquiry as to the effect of the official proceedings of selectmen and assessors since the passage of the act. If the land described in the plea falls within the county of Rockingham to which it originally appertained, the defence set up by the plea is established. If on the other hand, either by force of the- act or of the official proceedings referred to, or both, it is brought within the county of Hillsborough and the jurisdiction of the Court of Common Pleas for that county, judgment must be rendered upon the verdict.

In Gorrill v. Whittier, 3 N. H. 265, it was held, that the selectmen of adjoining towns had no authority to alter the boundaries of such towns in any case whatever, although they might in cases of doubt, agree as to where the true line was.

It may not be necessary in this case to decide as to the application of the principle of that case, or as to the extent or degree to which the perambulations of selectmen are evidence of the common boundaries of their respective towns. It is plain that the power to agree in cases of doubt, may in some contingencies amount of necessity to a power to substitute a conventional for the true line. But we think that such can not be the effect of perambulations where no question appears to have arisen, and a line appears to have been adopted without any reference to another and widely different line, and without any intention on the part of the selectmen to decide judicially between the two lines.

The question here is not, where the line is which the selectmen intended to perambulate, but whether the line which they intended to perambulate was the one indicated by the act. This as we have intimated is a question which it does not appear that they ever undertook to settle; and it may be added, that it is one which is at least doubtful whether they had any power to settle, had they ever sought to do so.

The official acts, and indeed the private acts of persons having occasion to put a construction upon ancient statutes, may be judicially noticed as evidence of a contemporaneous construction, and of the intent of such statutes. But it is only where the words of the statute are doubtful, that usage may be called in to explain them, and not when the act can not admit of different interpretation. Buffer, J., in The King v. Hogg, 1 T. R. 726. And in this case, the usage of the selectmen in their perambulations has been one way, and that of the assessors has been another. Neither can have any force against the true meaning of the act, if it contain words sufficient to Batisfy the court as to what that meaning is.

On this subject we have not all the light which rendered the meaning of the act sufficiently plain to those for whose benefit it was intended, and to the legislature who passed it. In particular, the petition which gave occasion for its passage, and set forth the grievances or inconveniences requiring the remedy and the particular remedy which seemed applicable to the wants of the petitioners, would probably go far to render the phraseology of the act perspicuous, and its allusions intelligible. But this is lost.

Enough however is contained in the act to settle the question presented by the present case, upon the evidence reported. It provides that a certain part of the town of Londonderry included in certain bounds described in the case, but not necessary here to be repeated, shall be dis-annexed from, that town, and he annexed and belong to the town of Nottingham West. A part of the line forming the boundary of this territory is thus described: “ Thence north twenty degrees west, seven hundred forty rods to a large black-oak marked, standing about four rods east of Simeon Robinson’s house; thence north eighty degrees west, six hundred rods, to the east side line of Litchfield, to a poplar tree marked, standing in the edge of Fine Meadow, including the houses and lands belonging to William Graham, William Steele and William McAdams, Simeon Robinson, and Ebenezer Tarbox, lying to the eastward and northward of said tract, according to the plan thereof exhibited with said petition, and excluding any lands, lying contiguous to said north and east bounds, belonging to Samuel Anderson and Thomas Boyd lying within the same.”

The authors of this description did not erroneously suppose that a line running north twenty degrees west to the black-oak, and north eighty degrees west from that point (it being the double line upon the plan), would include the land of Simeon Robinson. The description on the contrary expressly denotes such land as lying north and east of such linos. But the boundary line of the tract set off) was to embrace the farms of Simeon Robinson and the others mentioned, and therefore could not possibly be the lines running to and from the oak tree by the courses indicated.

Why these last mentioned lines were laid down at all, it may not bo easy with certainty to determine. They might have been the result of such hasty survey as the parties were able to make, and have been deemed sufficient as indicating the general course of the line of the proposed boundary, upon which they might base the deflections necessary to comprise or to exclude the particular farms enumerated in the act. But it is by no means necessary that we should determine such an inquiry, it being sufficient that the straight lines referred to were not the lines denoted by the act as the limit of the territory transferred from Londonderry to Nottingham West, and which afterward became part of the town of Hudson; and that .’the farm of Simeon Robinson of which the demanded premises formed a part, was all embraced in the territory so transferred. Consequently the land embraced in the plea of mil disseizin was within the jurisdiction of the court, and there must be

Judgment on the verdict.