80 F. 242 | U.S. Circuit Court for the District of New Hampshire | 1897
Lead Opinion
The Libbys and Dudley F. Leavitt were owners in common of the township of Odell, in the county of Coos, and on the 4th day of October, 1882, in the words following, conveyed to Sumner W. Thompson “ten thousand acres of land in
Odell, in said county of Coos, to be surveyed off and bounded north by Irving’s location, south by Stark, and east Dummer and Millsfield, and to extend far enough west to a line to be surveyed parallel with the line on Dummer and Millsfield to include said ten thousand acres.” The term, “off the easterly side of said township,” used in the conveyance from the Libbys to the Weston Lumber Company, and which counsel for the Weston Lumber Company strenuously urge, was not employed in the earlier deed from the Libbys and Leav
The deed now under consideration conveys a parcel of land to be surveyed off from a larger tract, and by its express terms provides for
We will first give our attention to the line contended for by the Glen Manufacturing Company, and in respect to this we find that in October after the conveyance Thompson called for a survey, and, after conference between Leavitt and George W. Libby (who was authorized to act for the other Libbys), agreed that Williams, who was to be paid, and was subsequently paid, by the Libbys, should establish the divisional line contemplated by the deed, and that the 10,000 acres should be ascertained by a calculation based upon the lines of the outlying territory already marked, and the courses and distances as shown by plans thereof and upon one Bucknam’s survey, and measurements of the west line of Dummer and Millsfield, which was the east line of Odell. It was understood that Williams, after making his calculations as to how far it would be necessary to go west on the Stark line to include the 10,000 acres, should run north to the south line of Irving’s location. Soon after the conference between Leavitt and Libby, this means of ascertaining the bound was submitted to Thompson, who approved of it, and furnished men to assist in measuring and marking the line. Williams, in making his calculations on paper, taking the town lines and measurements as a basis, found that Irving’s location did not extend far enough west to form a complete northern boundary of the 10,000 acres, and with Leavitt’s assent (though not known to the Libbys at the time), and for the pur
We have given the theory of the Glen Manufacturing Company as to an agreed line our most careful consideration, having in view, of course, the well-settled New Hampshire doctrine that in cases of disputed and uncertain boundaries an executed parol agreement establishing a dividing line between adjoining owners of real estate is conclusive upon the parties and all persons claiming under them. Applying this rule as to the binding force of executed parol agreements
Now, as to the Gile line. This line was ex parte, but should not fail for that reason, provided it answers the calls of the deed. In the first place, we find that the Gile line was not laid upon the ground in accordance with the intention of the parties, as we gather such intention from the deed, aided by the situation and conduct of the parties. We have already found, in connection with the deed in question, that the parties did not contemplate going further north than the south line of Irving’s location. The Gile line, therefore, is such a departure from the manifest intention of the parties that it must be found not to be in accordance with the calls of the deed.
Now, as to the merit of the measurements and calculation involved in Gile’s survey. The deed contemplates a survey, and the character of the survey is necessarily involved in the construction of the deed which must be made with reference to the situation as disclosed by the evidence, including the character of the territory and the knowledge of the parties. Having in view these considerations, and determining this question as a question of law and fact, we think the survey intended calls for allowances for losses, which experience and observation show, inevitably and necessarily result in measuring wild lands under the conditions disclosed by the evidence in this case. Such allowances are, from the nature of the undertaking, somewhat discretionary, but are nevertheless necessary, in order to get the number of acres called for by the deed. At least a large part of the Gile measurements were made, not on a compass line, but on the lines of marked trees, which were not infrequently a little distance from the true line, thus involving short tangents and angles, and with an effort to level the chain over the uneven and precipitous surfaces without making the usual and necessary allowances; and, as a consequence, we think some loss of land must have resulted. One element of loss would come, as it would seem, from taking up too much of the required distance by measuring on the succession of short tangents
In conclusion we find that neither party has established a divisional line, and that neither party is entitled to a verdict upon the evidence as it now stands.
Upon the foregoing findings of fact, we hold that the deed does not convey any land north of a line extended on the course of the southerly line of Irving’s location. We also hold, upon the findings, that the deed operates as a conveyance of land between a line to be extended on the course of the south line of Irving’s location and the lines of Dummer and Millsfield and Stark, and that the land conveyed extends far enough westerly to include 10,000 acres; and that the necessary line from the southwest corner of Irving’s location to intersect a necessary line drawn from Stark parallel with the east line of Dummer and Millsfield, may and should be supplied in order to allow the deed to operate as the parties intended. Land Co. v. Saunders, 103 U. S. 316, 322; Winnipisiogee Paper Co. v. New Hampshire Land Co., 59 Fed. 542, 547.
The Glen Manufacturing Company, in this trial, stands upon a supposed agreed line, rather than upon proof of a true line marking off the exact 10,000 acres in accordance with the deed; and, without determining the question whether it includes more or less than 10,000 acres, we hold that it is not an agreed line, or a completed survey under the deed, and therefore does not establish the extent of the grant or deed. Bartlett v. Young, 63 H. H. 265, which is the latest expression of the supreme court of Hew Hampshire on the subject of agreed real-estate lines, fully recognizes the idea that the agreement must be executed. This, as we understand it, means more than that the parol agreement must be executed so far as words are concerned. It means that there shall be performance under the agreement, if performance is contemplated. If the agreement is to run an agreed line, the line must be run. If there are no monuments, and the agreement is to establish corner-stone monuments, that must be done. In other words, the act or acts contemplated—the thing agreed to—must be executed. That is what is meant by executed parol agreements binding upon parties and their descendants in title to real estate. A rule of departure from this requirement would be fraught with more uncertainty, greater insecurity, and greater danger than could be foretold. The element that removes the agreement from the operative effect of the statute of frauds is not that the word-agreement is executed, but that the act affixing the agreed boundary to the land itself is executed. In one case it would be a naked parol agreement, and in the other a parol agreement, strengthened and executed by connecting it with the land by the erection of monuments which become a part of the land as physical and visible
The Weston Lumber Company stands upon an ex parte line which they say is a true line, and in respect to this we hold, upon the foregoing findings of fact—First, that the line is not the bound contemplat•ed by the conveyance. This ruling is based upon the idea that the .line is not laid upon the ground in conformity with the deed in this: that in going north of a line extended on the course of the south line ■of Irving’s location, and to 'Columbia, it includes territory not intend■ed to be conveyed.
And secondly, if the line extendingnortherly to Columbia line should, in any event, be held to answer the calls of the deed, then the question would come as to the area of land, and whether the line incloses the number of acres conveyed. Surveys and measurements, as applied to this question, are not absolute, but are competent evidence bearing upon the controverted question of quantity. The problem of ascertaining an unknown and unlocated exterior bound of a definite ■quantity of land when three of the exterior bounds, but no distances, are given, must be reasonably solved. In such a case, where the '.method adopted for the solution of the problem involves measure-•ments of the given lines, and a survey and measure of the line to be ascertained and located, the question whether the method adopted was reasonable, and the question whether the particular surveys and measurements involved were reasonable, are questions of fact, which •are to be found in the ordinary way upon the evidence in the case. 'The line called for by the deed is a straight, horizontal line, and the •number of acres called for is 10,000, and the means employed for as•certaining this line and its length and the area of land, whether based upon allowances or the method of leveling the chain without allow.ances, must be reasonable, and the question of reasonableness is to be determined as a question of fact. The means of ascertaining the -true horizontal line and its length necessarily involve an element of
Under the Hew Hampshire rule, that a deed is certain which can be made certain, and that such a deed operates as a conveyance, the Glen Manufacturing Company holds a valid title to 10,000 acres of land limited on the west and north by the lines to which we have referred, and such lines exist in contemplation of law, although, upon the evidence and the findings, the whereabouts are not ascertained. The parties holding this deed are, upon the findings, in actual possession of at least some portion of the territory, and in constructive possession of all that the deed conveys; while the Weston Lumber Company, being in actual possession of some portion of the to.wnship of Odell, is in constructive possession of all that the Thompson deed does not cover. In each of the cases under consideration the burden is upon the plaintiff .to show that the defendant has entered his close, and, failing to establish that his domain includes the territory on which the acts in question were committed, he fails in his proofs, and therefore cannot recover. The parties acted upon the idea (and probably correctly) that the obligation was upon the grantor to make the survey, and locate the 10,000 acres, thereby rendering the deed certain and operative upon a particular part of the township. The grantors of the Weston Lumber Company, having conveyed to Thompson, under whom the Glen Manufacturing Company claim, 10,-000 acres of the township of Odell, have so commingled the interests by creating a joint or interdependent constructive possession that neither party can establish exclusive title to the locus in quo, and therefore neither party is entitled to recover in trespass until the deed is made certain by ascertaining the true location of the contemplated divisional line, and this is for the reason, not that neither has title, or that neither has trespassed, but for the reason that neither shows title, nor exclusive right of possession, to the disputed territory as against the other. In other words, neither supplies the burden of proof by showing the extent of his own territory or the limit of his adversary’s territory. While the deed is upheld as a muniment of title to the 10,000 acres, the title or right of possession to the particular locus in question is left uncertain upon the proofs. Ordinarily, upon such findings and rulings as are here presented, judgment would pass for the defendant in each case, but, in view of the great length and expense of the trial, and of the holding that the divisional line exists as a matter of law, although incapable of ascertainment upon the proofs and findings, we are inclined to defer judgment to the end that the parties may agree upon a surveyor or surveyors to mark the boundary in accordance with the foregoing findings and the construction which we have given to the deed; and, in the event of the inability of the parties to so agree, we will consider a motion from either side directed to the appointment of a surveyor or surveyors for
Concurrence Opinion
(concurring). I concur in the .above findings and rulings, and state certain reasons which have led to the conclusion that the methods of the measurement of the Gile line are such as would deprive the Glen Manufacturing Company of a substantial amount of the land to which under its deed it is entitled. The problem of the surveyor is to measure a line upwards of nine miles in length, through rough and mountainous country, by successive applications of a measuring instrument. A part of the process necessarily involves personal skill and judgment, since the complete operation of measurement includes an observer as well as measuring instruments. Observation must determine at each application of the .instrument whether the application is correctly made, whether it is upon the true course, whether there is a departure in any direction from the true theoretical line. Whatever the instruments employed, however scientific the processes, they merely reduce, but do not eliminate, the elements of personal judgment and personal error. The importance of error is to be determined by the practical purpose in hand. At times it may be disregarded, at times compensation should be made for it. It seems to me that upon the evidence in this case there appears the necessity for some ¿llowance or compensation for error in order to reach a result even practically correct. The evidence for the Glen Manufacturing Company is to the effect that in measuring wild lands by a chain or tape error always results, and that the error is invariably one way. Given two points at a considerable distance from each other, a line measured between them will always be longer than the true theoretical line. Errors of measurement consume distance, and the surveyor of an uneven surface covers with his measure a greater distance than the true line: If the sum of his successive measurements is relied upon to give the required length, his terminal will be located at a point on the ground at a less actual distance from the starting point than the correct terminal point. This is obviously so. As a straight line is sought, and as this is the shortest possible distance between two points, no irregularity in the contour of the surface over which the line is extended can shorten it. On the contrary, every elevation, every depression must count one way and only one way; i. e. to elongate the measured line over the true line. In a line of over nine miles in length through mountainous and heavily wooded country every obstacle in the true path, every rock, every mountain, every valley contributes error. Every angle of deviation made to avoid an obstacle adds error. To accept the measurement of the Gile line, in which no allowances for error were made, but which is-simply the sum of successive measurements, we are forced to hold that the surveyor who made it had the unerring observation, judgment, and eyesight to keep the tape always upon the true course and true horizontal line. In my opinion it is not satisfactorily proved