Fletcher v. Phelps, 28 Vt. 257

Fletcher v. Phelps

28 Vt. 257 | Vt. | 1856

The opinion of the court was delivered, at the circuit session in September, by

Isham, J.

The question in this case is one of boundary. The matter in dispute is determined by ascertaining the eastern line of the lot which was conveyed by the plaintiff to George and Samuel Phelps, by his deed of May 4, 1850. The question becomes important in order to determine the number of acres embraced in the *261deed, for which the defendants are to pay the plaintiff, per acre, the price stipulated in their contract. The lot is described in the deed as being bounded on the “lake and the creek.” The plaintiff insists that the creek is limited to the crooked line, or the Fletcher survey, as marked on the plan, and that all the land west of that line should be measured to ascertain the number of acres contained in the deed. The defendants, on the other hand, insist that no land was conveyed by the deed any further east than the dotted line or Phelps survey, as indicated on the plan, which runs on the border of what is termed the hard land, thus excluding the low land lying east of that line. The land thus excluded appears to be low land lying but little above the surface of the lake, and consequently is so much inundated in times of high water that it is rendered of no use for cultivation, and of no great value for pasturage or meadow. The quantity of land in dispute is five acres and one hundred and fifty-two rods; for which the plaintiff seeks to recover, in this action, the price stipulated to be paid per acre for the whole farm. The court excluded the evidence offered by the defendants, and directed the jury to include the land in dispute in estimating the aggregate price of the land under the contract; thus establishing the’ eastern boundary of the lot as being on the Fletcher survey, but not so as to embrace any part of the channel of the creek. We are satisfied that the defendants have no reason to complain of that direction of the court to the jury.

As a general rule, if the description of the land in a deed is ambiguous or doubtful, or if the lines and monuments referred to are lost or destroyed, parol evidence of the practical construction given by the parties, by acts of occupancy, recognition of monuments or boundaries; is admissible for the purpose of identifying the land, and in aid of the interpretation of the deed. Stone v. Clark, 1 Met. 378; Waterman v. Johnson, 13 Pick. 261; 1 Greenl. 301, note. But when no ambiguity exists, and the parties, in describing the land, have used terms and language in the deed, referring to known, existing, and permanent monuments, it is the duty of the court to give'to the description and the language of the parties a legal construction; and parol evidence is no more admissible to control its legal effect than it is of any other stipulation of the parties contained in the deed. It is for the court, in such cases, *262to decide what is embraced in the deed, and to definitely determine its lines and boundaries. Where land is sold and bounded on a river or stream of water above tide-water, the grant extends to the middle of the channel or thread of the stream. That is the legal effect of the conveyance, and it cannot be varied or controlled by parol testimony. Tyler v. Wilkenson, 4 Mason 397; Claremont v. Carelton, 2 N. H. 369; Hooper v. Cumings, 20 John. 91; Angel on Water Courses, § 11-12, and notes. The same principle applies where land is bounded upon an artificial pond, as a mill-pond and the like. State v. Gilmanton, 9 N. H. 461; Hathorn v. Stinson, 1 Fairf. 238. But a different rule prevails where land is conveyed bounded on large natural ponds or lakes; in such case, the grant extends to the water’s edge, or if, as observed by Ch. J. Shaw, in Waterman v. Johnson, 13 Pick. 261, the lake or pond have a definite low water line, the grant will extend to low water mark. Canal Commissioners v. People, 5 Wend. 423; State v. Gilmanton, 9 N. H. 461. Such is the legal effect which is given to conveyances of that character.

In relation to the premises in question, so far as they are bounded on the lake, no difficulties have arisen between these parties. The line extends to tlje edge of the water at low water mark. The same rule, we think, should be applied to land bounded on this creek. In times of high water on the lake, this creek appears to be but little more than an arm or inlet of the lake itself, as the rise and fall of the water in the creek depends upon the rise and fall of the water in the lake. There is a small rivulet or stream which passes through the centre of this low land to the lake, when it is not overflowed, the bed of which is distinguished by being some lower than the rest of the low land. At low water on the lake, the stream is limited to this channel, and is, to some extent, supplied with water from inland springs. Whether the measurement of the farm should have been extended to the centre of that stream or not, is not the question before us, as the court limited the line to the bank of the stream at low water, to which the plaintiff has taken no exception. That the line of this lot, as given in the deed, extends to the bank of that stream, and that all west of that line should be included in the measurement in ascertaining the number of acres in the farm, we have no doubt, as it was land *263conveyed by the deed, the title to which passed to the grantees, and for which, if the plaintiff had withheld the possession, the defendants could have sustained the action of ejectment. That part of the evidence which was offered by the defendants in relation to the character and quality of the land in dispute, was, therefore, properly rejected.

The same principle will exclude the evidence offered in relation to the original allotment of the land, the sale of contiguous land and its occupancy by others, the records of division, and the conversation of the parties at the time of the conveyance, &c. The lake and the creek mentioned in the deed are existing and natural monuments, and when called for by the deed, control quantity, lines, courses and distances; — as monuments of that character afford the highest and best evidence of the intention of the parties. Howe v. Bass, 2 Mass. 380; Wendall v. Jackson, 8 Wend. 190; Butler v. Widger, 7 Cowen 723; Rich v. Rich, 16 Wend. 663; 3 Phil. Evid. by Cowen & Hill 1379; 1 Greenl. Ev. § 301, note. Those monuments, therefore, must control the legal effect of this grant; and parol evidence is inadmissible to establish other boundaries, as there is no ambiguity in the deed, nor any uncertainty as to the monuments referred to. We see no error in the ruling of the county court on this subject.

The judgment of the county court is affirmed.