| Mass. | Mar 15, 1869
We know of no rule of construction which would extend the line on Eliot Street beyond the distance given in the deed of Smith to Innis in 1781, under which the demandant claims title.
The whole tract of land owned by Mary Smith, of which this deed conveyed a part, is bounded on its southerly side by Eliot Street, and is located between Pleasant Street on the west, and the line of land of the Eliot heirs on the east. By subsequent deeds, the remainder of the land was conveyed in two lots. The distances as given on Eliot Street, in these three deeds, amount, in the whole, to ninety-six feet. It is now found that the actual distance, namely, between the, line of the Eliot heirs and the line of Pleasant Street, exceeds by some eighteen inches the distance called "for in these deeds. The line of Pleasant Street is now indicated by certain structures abutting thereon, which it is claimed show the line as it existed in 1781.
It must be assumed, in accordance with the proof offered by the tenant, that the line of the Eliot, heirs is capable of accurate location, and constitutes a well defined and fixed boundary. Starting from this line, the deed to Innis requires the south and north sides to be run a distance of thirty feet, and bounds the land conveyed, on the west side, by other land of the grantor. There is no reference to any plans, or to other deeds, and no monuments are given as indicating the western termination of the north and south lines. There is therefore nothing to control the measurements given in the deed. Blaney v. Rice, 20 Pick 62. Flagg v. Thurston, 13 Pick. 145.
Under these circumstances, the ascertained excess in the south side of the whole original lot cannot be apportioned to the several purchasers. . It appears that the lot last sold was next Pleasant Street; and, though its south line is described in the
When an excess or deficiency is found to exist in the estimated distance between fixed monuments, divided into a given number of lots, a rule of apportionment is sometimes applied, which divides the difference between the several lots, in proportion to the lengths of their respective lines. But this rule is only to be availed of when the land is conveyed by reference to a plan, or there is some declaration in the deed indicating a purpose to divide the land according to some definite proportion, and when also there is no other guide to determine the locations of the respective lots. Lincoln v. Edgecomb, 28 Maine, 275. Brown v. Gay, 3 Greenl. 126. The case here presented does not come within this description.
For these reasons the demandant fails to show a title by deed to the demanded premises. And the ruling that the house of the demandant, erected in 1801, to the exterior limit of the eaves is upon land granted to him, was erroneous.
Whether he has acquired title to the land demanded, out to the exterior limit of his eaves, by adverse occupation, is a question proper to be passed upon by the jury, as a question of fact If the tenant, as the owner of the land up to the wall of the bouse, has continued in the occupation and visible use of it, it would seem that no adverse title to the land itself could have been acquired; nor to an easement therein, if the use were merely permissive. Carbrey v. Willis, 7 Allen, 364.
Verdict set aside