Marsh v. Marshall

19 N.H. 301 | Superior Court of New Hampshire | 1848

Gilchrist, C. J.

The question in this case is, where is the true line between the land of the plaintiff and the land of the defendant.

The beginning is at an undisputed corner, the stake and stones by the bridge ; thence the line runs on the southerly side of the cart path, to a stake and stones at the corner of Davis’s meadow.

The jury having found the corner of Davis’s meadow to be the point marked “ Lost corner,” the question is, how the line should run from the bridge to this lost corner.

*306The line between these points should be a straight line, unless there be something to control it and cause it to deviate from a straight line. Whether there be any thing to control it, must depend on the construction of the words “ running the southerly side of the cart path.”

The argument is, that these words mean nothing more than a line running on the southern side of the cart path, in contradistinction to a line running on the northern side of it, and that if the line so runs, the description in the deed is answered by proceeding in a straight line to Davis’s corner.

And this we think is the true construction. We are not embarrassed by the use of the words by, upon, on or along the cart path; words which have been construed to cany a line on the same course, and following the variations of the land, stream or highway upon or along which it is bounded. But here the only condition is that the line shall go southerly of the cart path. There it must go, according to the plain letter of the description, and there is nothing to cause it to swerve from a direct course, except the necessity of complying with this condition. The line is a straight one, unless where it is necessary to diverge in order to go southerly of the cart path. From the point of divergence to the “ lost corner,” the line must be straight. The ruling of the court did not allude to or make any allowance for this divergence at all, but required the line to be straight from one terminus to the other. Of this, however, the defendant cannot complain, as he thereby, if the ruling were correct, would get more land than upon the construction we give the deed, he is entitled to. The small triangular piece made by running the line straight from point to point, near the bridge, is the property of the plaintiff, as it is northerly of the cart path, according to our construction.

The evidence offered by the defendant was properly rejected. The plaintiff’s deed, which, it is to be inferred from the case, was offered to show his title to the land, authorized him to go southeasterly by Blodgett’s land, to Mar*307shalVs land, to an oak tree with stones about it. Ia order to get to Marshall’s land, he was to go by Blodgett’s land. How far, then, does the plaintiff’s land extend ? And where does it terminate? Is it at the extremity of Blodgett’s land, or is it the oak tree ? It does not follow that the plaintiff’s land was bounded all the way by Blodgett’s land. We have held that the line of a tract of land is a monument. Brett v. Young, 11 N. H. Rep. 485; Enfield v. Day, 11 N. H. Rep. 520. But it is a more general description of a monument than that which follows, that is, the oak tree with stones about it, which is an undisputed bound, and up to which the plaintiff was authorized to go. It follows? then, that the evidence as to the extent of Blodgett’s land was immaterial, because Blodgett’s land was not the test by which to determine the extent of the plaintiff’s rights, the true criterion being the oak tree.

Judgment on the verdict.

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