221 Mass. 317 | Mass. | 1915
We are of opinion that the tenant’s exceptions should be overruled.
The parties who derive title from a common grantor own contiguous estates, and having fallen, into a controversy over the dividing line, this action is brought to determine the ownership of the strip in dispute.
The exclusive jurisdiction of writs of entry brought under R. L. c. 179, was conferred upon the Land Court by the St. of 1904, c. 448, which provided in § 8, that any decision whereby any party is aggrieved shall be subject to an appeal to the Superior Court for the county in which the land lies for a jury trial upon the facts. But the issues are to be framed in the Land Court, after the appeal is claimed. Foss v. Atkins, 193 Mass. 486.
The demandant seasonably perfected his appeal, and with the exception that the report of the judge of the Land Court who found for the tenant was admissible in evidence, the issue trans
If the northwesterly boundary of the premises demanded is determined, the northeasterly boundary of the tenant’s land will be ascertained, and, no question of title by prescription having been raised, resort must be had to the documentary evidence with the burden of proof resting on the demandant. Bishop v. Burke, 207 Mass. 133.
The parcels with the respective buildings or hotels formerly comprised one estate, which the owner divided by deeds of even date, wherein each tract is described as bounded by the other tract. The buildings covering very nearly the whole area had a common partition or party wall, the centre of which before the merger in owner-ship of the grantor was the division line, but the deeds to the demandant and the tenant divided the land so that the description in the demandant’s deed covers a portion of the tenant’s building, shutting off substantially the entrance from the public street on the northwesterly side, as well as depriving the tenant of the support of the common wall, and of four feet of the front bedrooms on the upper floor. It is his contention that these conditions make the descriptions ambiguous, and he furnished evidence from which the jury would be warranted in finding that the grantor intended that the true boundary line should be coincident with the centre of the common wall.
But, if evidence of this character is admissible where the language used in the deed is of doubtful meaning or where a boundary is named of a natural object, the location of which must depend on the observation and recollection of witnesses, it is inadmissible where the wording of the instrument is unambiguous and all the calls can be satisfied. Stone v. Clark, 1 Met. 378, 381. Temple v. Benson, 213 Mass. 128. Morrison v. Holder, 214 Mass. 366, 369.
The descriptions are by metes and bounds, and the record shows
The situation appears to be one of much hardship, but whether the tenant could have relief in equity by an original bill or an answer by way of equitable defence, which has not been pleaded, is not before us. Holbrook v. Schofield, 211 Mass. 234. It. L. c. 173, § 28.
The denial of the tenant’s motion, to dismiss the appeal after the rulings had been announced because no question of fact remained for the jury, was right. It is true that, the report being in the tenant’s favor, unless there was evidence to the contrary he was entitled to a verdict. Bishop v. Burke, 207 Mass. 133, 139. The statute, however, requiring the report deals only with a rule of evidence, and rulings of law found in the report may be rectified or reversed. Woodvine v. Dean, 194 Mass. 40, 42, 43. Fisher v. Doe, 204 Mass. 34, 39, 40. The true construction of the deeds was a question of law and not of fact. Eddy v. Chace, 140 Mass. 471. Lipsky v. Heller, 199 Mass. 310. And if under the rulings the facts no longer were uncertain or indefinite, the trial nevertheless was with a jury upon the issue as framed. Fay v. Alliance Ins. Co. 16 Gray, 455, 461. Carter v. Goff, 141 Mass. 123. Hillyer v. Dickinson, 154 Mass. 502, 504.
The findings shown by the report were made upon extrinsic
Exceptions overruled.