122 Mass. 579 | Mass. | 1877
The question, upon which the liability of the defendant depends, is whether the easterly line of her lot is the line upon which the fence has stood for eighteen years or a line eighteen inches further east. This is to be determined by the construction of the deeds under which she claims, aided, so far as is competent, by extrinsic evidence.
On December 8, 1854, the defendant’s lot was conveyed to .John F. Boyd by two deeds, one from Samuel Jennison, Jr., guardian of John and Frank T. Richardson, and the other from Edward H. Eldredge, guardian of Ralph Eldredge. The descriptions and terms of the two deeds are the same. They conveyed to Boyd all the right, title and interest of the minor wards “ in and to a certain lot or parcel of land situated in said Newton Corner on the northerly side of Elm Street, and bounded .and described as follows, viz : beginning at a point on said Elm Street two hundred and twenty-five feet westerly from land now occupied by William Whall, and running northerly at a right angle with said street one hundred and thirty-six feet, more or less, to land of the Worcester Railroad Corporation; thence on said corporation’s land westerly eighty-five feet to other land of said minors and of the minor child of their sister lately deceased ; thence southerly in a line parallel with the first mentioned boundary ninety-five feet, more or less, to said street; thence on said street easterly seventy-five feet to the point of beginning; said parcel containing by estimation eight thousand eight hundred and thirty-seven square feet,” and being “ the same on which the said Boyd has recently erected a two story dwelling-house.” After the habendum, the deeds contain the provision that “ the said Boyd agrees to put up and maintain, without cost to said minors or either of them, suitable fences wherever the premises adjoin land owned by said minors or either of them.” At this time the said minors owned the land upon the easterly and westerly sides of the lot conveyed to Boyd. The lot on the easterly side has since been conveyed to and is now owned by the plaintiff.
The question is whether this evidence was competent and would justify the finding of the Superior Court that her true line was the line of the fence.
The general principles upon which the defendant relies are not in dispute. A conveyance of land can only be by deed, and paroi evidence is not admissible to control or vary a deed. If the description in it is certain and unambiguous, it is not competent to prove that the parties had any intention different from that expressed. But if, upon applying a deed to the land, it is found to be ambiguous, paroi evidence of the surrounding circumstances and of the acts of the parties is competent to aid in the interpretation of the deed, and to enable the court to ascertain what was the intention of the parties in the words which they have used. This rule has been applied in a variety of cases, none of which, from the nature of things, are exactly like the present case, but which illustrate the principle. Makepeace v. Bancroft, 12 Mass. 469. Waterman v. Johnson, 13 Pick. 261. Frost v. Spaulding, 19 Pick. 445. Stone v. Clark, 1 Met. 378. Kellogg v. Smith, 7 Cush. 375. Chester Emery Co. v. Lucas, 112 Mass. 424. The defendant contends that it does not apply in this case, because the deeds to Boyd are free from ambiguity,
The defendant relies upon Cleaveland v. Flagg, 4 Cush. 76, but the two cases are clearly distinguishable. Without referring to other differences, a vital distinction exists in the fact that in that case, as stated by Chief Justice Shaw in the opinion, “ no fence was alluded to in the deed, as a monument. The fence
We are therefore of opinion that there was no error of law in the finding of the Superior Court that the plaintiff was entitled to recover.
The question of damages was peculiarly within the province of the judge who tried the case. All the evidence is not reported, and we have neither the means nor the right to revise his finding as to the amount of damages sustained by the plaintiff. Exceptions overruled.