169 Mass. 582 | Mass. | 1897
The only question was with regard to the true boundary line between the plaintiff and the defendant. Both parties held under deeds from a common grantor, in which the boundary line was described as at right angles with Lothrop Street. If this was the line, the defendant was entitled to a verdict, and the judge was right in directing one in his favor. To control this the plaintiff put in evidence that the defendant’s predecessor in title, who held under the earlier deed, set up a fence which diverged somewhat from the right angle and made the line insisted on by the plaintiff; that the fence had stood for at least nineteen years before the trespass complained of; and that the plaintiff bought his land and made some slight improvements on the piece in controversy, supposing that the fence stood on the boundary line. He also proved that, if the line were drawn at right angles, the defendant’s southeasterly boundary would be fifty-three and a half feet instead of “ about fifty feet ” as in the deed. His argument is that the angle does not prevail over the measurement, that the acts of the parties interpreted the deed, and that the building of the fence was an estoppel, as against a later purchaser of adjoining land who had improved the land up to the fence.
The argument cannot prevail. There is no conflict such as is imagined between the angle and the measurement, since the measurement does not purport to be exact, but on its face is only a rough estimate, prefaced by the word “ about.” Hall v. Eaton, 139 Mass. 217, 222. There is no uncertainty to be construed by the acts of the parties. The building of the fence was not in pursuance of an agreement to settle a doubt, even in the parties’ minds. It was merely an act of one of them, proceeding under a mistake, and did not bind him. Hall v. Eaton, 139 Mass. 217, 223. The lapse of time short of the period of prescription does not help the plaintiff, and the fact that, acting under the same mistake as the defendant’s predecessor, he has