Morse v. Rogers

| Mass. | Oct 23, 1875

Endicott, J.

The lot of the defendant is bounded in his deed westerly on the easterly side of a passage way fifteen feet wide, extending from Pearl Street to Pleasant Street, and southerly on Pleasant Street ninety-five feet six inches to Main Street.

The location of this passage way is the important question in the case, as the issue between the-parties is whether it is ninety-five feet six inches, or ninety-eight feet three inches distant from Main Street.

The easterly line of the way is described in the defendant’s deed as identical -with the line of Calvin Foster’s lot, and a line drawn in extension thereof to Pleasant Street. The plaintiffs’ deed of the lot on the opposite side of the way also locates the way on the extension of the line of Foster’s lot, as its eastern boundary; and it appears that the way so described was intended for the use of all the estates abutting upon it. The deed also refers to a plan, which is upon record, and which must be taken to be a part of the description, to the same extent as if expressly recited in the deed. Davis v. Rainsford, 17 Mass. 207" court="Mass." date_filed="1821-03-15" href="https://app.midpage.ai/document/davis-v-rainsford-6404969?utm_source=webapp" opinion_id="6404969">17 Mass. 207. Murdock v. Chapman, 9 Gray, 156. This plan shows that the eastern line of the way is the extension of the western line of Foster’s lot in a straight line to Pleasant Street, and, also, that the length of the southern side of the defendant’s lot on Pleasant "Street is ninety-five feet six inches.

The plaintiffs contend that the deed and plan, taken together, conclusively establish the location of the way to be ninety-five feet six inches from Main 'Street; and that it is immaterial whether the direct extension of the line of the Foster lot strikes Pleasant Street at that point or not. The court so ruled, and excluded evidence offered by the defendant that the extension of that line would strike Pleasant Street at a point ninety-eight feet ten inches from Main Street.

But we are of opinion that this evidence was competent. Taking the description of the way as set forth in the language of the deed, its location could be easily and accurately determined by extending the western line of the Foster lot to Pleasant Street; and the location so established would determine the western boundary of the defendant’s land. This way constituted an existing boundary at the date of the defendant’s deed, having an absolute position capable of accurate demonstration. And there is no such connection between the description of it, and the measurement of the boundary line of the defendant’s land on Pleasant Street, as to indicate that the measurement had any direct reference to the passage way, or was intended to change its direction from a straight line to a point ninety-five feet six inches from Main Street. This measurement is not alluded to in describing the passage way; it is part of the description of the defendant’s land, and does not necessarily determine the spot where the passage way strikes Pleasant Street.

Where, by reason of an imperfect or impossible description of a way as a boundary, its location is uncertain and cannot be made certain, a measurement of this kind may be important and decisive in determining its location. But where the way is so described in the deed, that it is or may be clearly located, without reference to the land adjoining, or the measurements of such land as a guide to the direction, the measurement cannot control or decide the location. From the language of the deed, therefore, it is clear that this measurement does not necessarily show the point on Pleasant Street where the way terminates; and the extent of the grant is to be determined by the position of the way as a boundary, and not necessarily by the measurement in the deed.

Nor does the plan vary or enlarge the terms of the deed. It is dated before the deed, and was evidently put upon record for the benefit of all the parties who had purchased the nine lots sold at the auction. The way is delineated on the plan as if upon the line of the extension of Foster’s lot; and the measurements of all the side lines of all the nine lots sold are upon it, including the disputed measurement on Pleasant Street. The lines of the way, indicating its direction, appear to be drawn in conformity to the description in the language of the deed; and the measurement of ninety-five feet and six inches on Pleasant Street has no greater significance on the plan than in the deed. It is the measurement of a side line, and there is nothing on the plan to show that the measurement of this line, has any closer relation to the direction of the way than the measurements of other side lines which ter mínate upon it. If this measurement may control the direction of the way, as a monument, the measurement of the lines of other lots that extend from the way to Main Street may also control it, and thus a way, which, from the description in the deed and the plan, may be accurately located in a direct line, would have to yield to various measurements. We are of opinion therefore that the case falls within the well settled rule, that measurements must yield to a boundary or monument when certain, or capable of being made certain, independently of measurements. George v. Wood, 7 Allen, 14. The case does not come within the exceptions to this general rule, that where a boundary is inadvertently inserted, or cannot be found, or would contravene all the other terms of the description, or an adherence to it would defeat the evident intent of the parties, such boundary may be rejected, and the extent of the grant determined by measurements or by other portions of the description; as in Davis v. Rainsford, 17 Mass. 207; Parks v. Loomis, 6 Gray, 467; Murdock v. Chapman, 9 Gray, 156. We are of opinion that the evidence was improperly excluded, and the defendant should have been permitted to show where the extension of the western line of Foster’s lot would have touched Pleasant Street. New trial ordered.