100 Me. 454 | Me. | 1905
This was an action of trespass quare clausum. The case comes before the law court on report. The act complained of was the cutting of certain wood and timber from a portion of the plaintiff’s farm.
The defendant claims that under the deed of the plaintiff dated November 11, A. D. 1903, he had license to cut all the wood and timber upon the farm except a small lot of birches on another part of the premises not effected by the acts complained of.
The dispute is upon the construction of this deed and especially of the following words in the description of the boundary of the disputed territory: “Commencing at a point on the County Road running from Portland to Buxton, at the corner of Allen T. Reed’s land and land of said Chapman; thence following the division line between said Allen T. Reed’s and said Chapman’s and the prolongation of said Chapman line until it intersects with the wire fence between said Chapman’s land and the land now or formerly of Champaign and Larochelle.”
The survey and plan made by Augustus E. Skilliú subsequent to the date of the deed show that the language describing the lines in dispute is ambiguous. The uncertainty which exists is introduced by the word prolongation in connection with the first course of the Reed boundary line. In common language this word may mean a line produced as claimed by the plaintiff, but it is not infrequently used of a continued or extended line as claimed by the defendant.
The plaintiff’s contention is that by the language “ prolongation of said Chapman’s line”, is meant a line produced in the first course of the Chapman-Reed boundary, and that of the defendant is that the word “prolongation” is used in the sense of extension or continuation and is a term merely descriptive of the boundary line beyond the land of Reed and to the Champaign-Larochelle wire fence.
The description of the land is to be interpreted by reference to all the calls in the deed, and every call is to be answered if it can be done. Herrick v. Hopkins, 23 Maine, 217. The interpretation is to be further sought from the attendant circumstances and the intent of the parties, and the deed must receive a construction most favorable to the grantee. Erskine v. Moulton, 66 Maine, 276; Field v. Huston, 21 Maine, 69; Pike v. Monroe, 36 Maine, 309; Ames v. Hilton, 70 Maine, 36; Knowles v. Bean, 87 Maine, 331 ; Stoops v. Smith, 100 Mass. 63; Hastings v. Hastings, 110 Mass. 280.
The Chapman-Need boundary consists of a broken line of four courses and the Chapman line is continued on still another course. As this boundary line is a monument it would by the general rule of construction govern the course unless the intention of the parties would be defeated by its adoption. Haynes v. Young, 36 Maine, 557; Sanborn v. Rice, 129 Mass. 387; Woodward v. Nims, 130 Mass. 70; Davis v. Rainsford, 17 Mass. 210; Percival v. Chase, 182 Mass. 371. By following this boundary line until the end of the Need land is reached without reference to the several angles in the line, and then following the Chapman line understanding it to be still used as a monument until the Champaign wire fence is reached, there is no confusion in the language of the deed. It will be seen by reference to the Skillin plan that the line which the plaintiff insists answers the second call in the deed introduces into the description two material inaccuracies; it does not intersect “with the wire fence between Chapman’s land and land now or formerly of Champaign and Laroehelle”; and the next course is inconsistent with the direction and monuments by which it is described.
■ The force of the argument that the word prolongation in the description implies a direct line is lessened by the use of the word a second time in the deed, namely, “tlieuee in an easterly direction by said wire fence between said Champaign land and the land of said Chapman and by the prolongation of said Chapman’s said line to land now or formerly of McKenney,” where it could not in the
The defendant’s testimony shows that he had in view the purchase of the wood and timber upon the whole of the plaintiff’s farm except a small lot of birches which the plaintiff desired to reserve for fencing, that the price which he offered was for this and that no reduction was ever made in the price. This is in conflict with the plaintiff’s statement that the intended reservation was the wood and timber on the lot in dispute made definite by a line which he pointed out to the defendant extending south across his land being that designated in the second call in the deed. It appears that the plaintiff during the negotiation requested Lewis P. Knight, who was familiar with the value of wood and timber, to estimate the amount of growth on the premises, and that he in making his estimate examined the whole tract understanding that the plaintiff was to sell all the wood and timber except some small growth of birches. The greater weight of evidence proves that the plaintiff did not as he testifies point out this line to the defendant, but an assumed division line between his land and that of John O. Knight which he marked upon the face of the earth by spotting trees between a spruce tree near the Reed line and a fir tree near the corner of the adjoining lands of Champaign and Lowe.
, Under these- circumstances and rules governing the construction of deeds it must be held that the deed between the parties included the disputed premises.
Judgment for defendant.
