Brackett v. Persons unknown

53 Me. 238 | Me. | 1861

This instruction was given, except that the limitation of the twenty years possession was before the time of the trial instead of the entry of the petition.

The limitation was properly imposed. In a petition for partition, a sole seizin in the respondent may be established by a possession commenced twenty years before the trial, though less than twenty years before the commencement of the suit. Saco Water Power Co. v. Goldthwait, 35 Maine, 456.

If, in some respects, the Court erred in favor of the petitioners, it is not for them to complain. The instruction given is sufficiently favorable.

It required the admitted fact of occupation for twenty years of upland and flats under a recorded title.

2. The second request was refused and properly. But ” the jury were instructed that such an occupation for twenty years, if under recorded deeds purporting to convey both flats and upland, would warrant the jury to find the title of both flats and upland in the occupants, provided no other person had or claimed possession of a title in the flats.”

The instruction as given, it has been seen, in Brackett, pet., v. Persons unknown, (ante p. 228,) is in entire conformiiy with the well settled principles of law.

3. The third request was properly refused. It required the Court to determine the eifect of the evidence, instead of submitting the facts under proper instructions to the jury.

4 & 5. The fourth and fifth requests were properly refused, because they take away from the jury the right to determine the facts in question, and because the bill of exceptions is silent as to the facts to which they relate.

6. The sixth request was granted.

7. The seventh request was refused, and the jury were " instructed that the deed of Thomas Brackett to Mary Smith, dated Oct. 9. 1787, did, by its terms and the references contained in it, convey the flats appurtenant to the upland therein described.”

This was correct. The description in the deed is as follows:' — "Beginning at the most southerly corner of that lot or parcel of land which has been set off to Kerranhap-puek Brackett as part of her dower, thence N. 45° west, one hundred and twelve rods to a stake; thence S. 33° E. one hundred and twenty-seven rods ; thence north-easterly, as Fore river runs, twenty eight rods to the first bounds.”

The grantee bounded on a river goes ad medium filum aqu<e, unless there be decided language showing a manifest intent to stop short at the water’s edge. Where premises adjoining a river are described as bounded by a monument standing on the bank and a course is given as running from it down the river, as it winds and turns, to another monument, the grantee takes usque filum aqua unless the river be expressly excluded from the grant by the terms of the deed. Luce v. Carley, 24 Wend., 451. "It is never thought,” says Cowan, J., "that monuments mentioned in such a deed as occupying the bank of the river are intended by the parties to stand on the precise water line at its high or low water mark. They are used rather to fix the terminus of the line which is described as following the sinuosities of the river.” So " down the creek with the several meanders thereof,” was held to describe the water in the bed of the creek and not the top of the bank. McCulloch v. Aten, 2 Ham., 307. The Fore river, it is manifest, must have been regarded as one of the boundaries. Pike v. Munroe, 36 Maine, 309.

9. The ninth requested instruction was not given, but instead thereof the same was given as in Brackett, pet., v. Persons unknown, the correctness of which was fully affirmed in that case. Ante p. 228.

10. The tenth was, that fiats covered by tide waters unimproved down to the time of the husband’s decease, by any actual and exclusive occupation, are not the subject of dower within the meaning of the statutes of Massachusetts, or the law of that State, at the time of the decease of Anthony Brackett, &c., &c.