214 Mass. 366 | Mass. | 1913
The action is tort for breaking and entering the plaintiffs’ close, with the further allegation that the defendants cut down, damaged and destroyed the trees and undergrowth. If under the R. L. c. 173, § 8, the place of the alleged trespass is designated in the declaration by name, boundaries, courses and distances, the plaintiffs need not prove the boundaries with the precision requisite in a writ of entry, where the whole title to the land described and demanded is put in issue. The judgment, if the plaintiffs prevail, determines only that a trespass has been
The plaintiffs and Harriet E. Holder, hereinafter referred to as the defendant, claim title to the land in dispute through mesne conveyances from Nathaniel Holder. The deed, however, of their common grantor to Flint, under which the plaintiffs derive title, antedates by many years the deeds to the defendant, and, if it can be located, they are entitled through the subsequent conveyances which were properly admitted, to the southerly half of all the land therein described. Temple v. Benson, 213 Mass. 128. But as the description is by courses and distances except the westerly boundary, designated as a private way known as Linwood Street, and the southerly corner of the lot is stated as the point of beginning, the southerly line, which is in controversy, cannot be located when the deed is applied to the land.
It is the plaintiffs’ contention, that the point of departure should be fixed in the westerly line of the lot sixty-six and three one-hundredths feet southerly of an oak tree standing at the easterly side of the private way, which subsequently became a public street. The defendant, however, places the starting point as being opposite to the tree. If thus located the measurement on the way called for by the plaintiffs’ deeds would be about equally . divided, and the area of the original grant correspondingly diminished.
A question of fact which the jury were to determine having been raised, the defendant, who put in without objection documentary and paroi evidence which she maintained established title in herself, excepted to nearly all the testimony introduced by the plaintiffs. Temple v. Benson, 213 Mass. 128, and cases cited. But, if it is necessary to consider the exceptions at some length, they are devoid of merit. The land conveyed to the parties formed only a part of a large tract owned by Nathaniel Holder, who after the deed to Flint made conveyances from time to time of adjoining parcels, although no plan of the entire premises with the subdivisions seems to have been prepared. The deeds and the plans showing these parcels, and the lots into which some of the parcels have been divided by the purchaser, were admissible as they all related to the original territory out of which the lands of the parties had been carved, and evidence that a natural monument, or a drill
It is sufficient ground for its admission, that all of the foregoing evidence tended to aid the jury in the proper application of perplexing and ambiguous documentary evidence. Hathaway v. Evans, 108 Mass. 267. Barrett v. Murphy, 140 Mass. 133. It is true that some of the statements of the plaintiffs’ witnesses when describing the location of the ancient oak, the boulder with a drill hole, each of which according to their recollection had disappeared long before the trial, and of other monuments or boundaries referred to in the later deeds, were founded upon hearsay. But this objectionable feature was not disclosed in their direct examination, nor referred to by counsel when, the defendant excepted. The source of their information was elicited in cross-examination. If the defendant had asked to have this portion excluded, upon refusal, exceptions then taken would have been available. A party, however, who without stating any reasons merely excepts to the admission of evidence appearing on its face to be relevant and admissible, but which afterwards in cross-examination is shown to be incompetent, can have the benefit of his exceptions only as they are pertinent to the question actually presented and passed upon by the judge when the ruling was given. Howard v. Hayward, 10 Met. 408. Holbrook v. Jackson, 7 Cush. 136, 154.
It was settled more than seventy years since in Stone v. Clark, 1 Met. 378, 381, that where the description in a deed is of doubtful import the construction given by the parties may be shown by their acts. The father of the plaintiffs, the third successor in title under the original grant, occupied and improved the premises during his lifetime,- and the character and extent of his actual
The defendant’s exceptions to the refusal to give her requests and to instruct the jury as requested remain. The requests could not have been given in terms, and the questions presented were appropriately covered by the instructions. Very properly the judge declined to instruct upon or to emphasize a part of the testimony, or to assume as matter of law what were controverted issues of fact.
The plaintiffs claimed a fee simple, and the title deed of their ancestor had the same effect as if the grantor had entered upon the land and given actual possession. Ward v. Fuller, 15 Pick. 185. And, being in possession under a claim of right, this of itself, as the judge correctly told the jury when dealing with the fifth request,
The exceptions to the instructions “so far as they are inconsis
Exceptions overruled.
The fifth instruction requested by the defendant, here referred to, was as follows: “5. The burden is upon the plaintiffs to prove title to the land where the alleged trespass was committed by a fair preponderance of the evidence, and if the plaintiffs fail to thus prove title to the land where the trees were cut down, even though they prove title to the land down to the nearest tree cut down, then your finding must be for the defendants.”