Proprietors of the Kennebec Purchase v. Tiffany

1 Me. 219 | Me. | 1821

Mellen C. J.

delivered the opinion of the Court as follows:

The motion for a new trial is grounded upon the rejection of certain proof offered by the tenant; and the particulars of this proof are stated in the report of the Judge who presided in the trial.—If this proof was improperly rejected, the verdict must be set aside and a new trial granted; otherwise judgment must be entered for the demandants.

The demanded premises are claimed by the tenant as a part of lot No. 72 and in no other manner; and the question is, how far that lot extends westwardly.—It is admitted that Wins-low, when he made his plan of the first, second, and third ranges, only measured the width of the lots on the first range and set up monuments by the river; and then made his plan of the three ranges; each to be one mile wide; or in other words the lots in each range were to be one mile in length: and that the extent of the lots in all the ranges was then to be asccr* tained by length of line only.

The counsel for the tenant admits that the true west line of the third range is only three miles from Kennebec River, unless it has been placed either expressly or by implication farther west, and so located by the Proprietors or their agents, as to give extension to the lots in that range as far westwardly as the Bacon-lot, and so far as to include the demanded premises as part of lot No. 72.-This lot was granted to Robinson, according to Winslow’s plan ; and the tenant holds what was granted to Robinson, and nothing more.

When land is granted or conveyed according to a certain plan, such plan, in legal construction, becomes a part of die deed, and is subject to no other explanations by extraneous evidence, than if all the particulars of the description had been actually inserted in the body of the grant or deed. Now it is clear that according to Winslow’s plan lot No. 72 extends only three miles from the river ; and if the grant to Robinson had been made before the Bacon-lot was located and Jones’ survey completed, the lot would not have been extended so as to embrace the land in dispute. We are then to inquire whether the location of the Bacon-lot by McKecknie, or the survey and plan of the rear lands made by Jones do in legal contemplation alter the case.

When McKecknie located the Bacon-lot, he measured for himself, to ascertain the west line of the third range, or in other words the end of the three miles from the river; and it appears by the plan taken in the present case, that he made seventy-two rods large measure : and therefore, though in the description of the bounds of that lot, it is said to adjoin the lots in the third range, it is in fact seventy two rods to the westward of that range.—This was evidently an error on the part of Mc~ Kecknie: and the lot was located by mistake seventy two rods farther west than was intended.—It seems that the proprietors were not aware of this error when they employed Janes to survey and make a plan of the lands south of the Bacon-lot and westward of the third range of Winslow's lots ; and it is equally clear that Jones himself was not conscious of it at the time he executed the duty assigned him. He proceeded on the mistake made by McKecknie and when he copied Winslow's plan and laid those lots down on his own plan, he continued the mistake by representing those lots as extending westward as far as the Bacon-lot.—It is not contended that Jones knew the rear line of the setttlers’ lots or in other words the -west line of the third range : he never run that line or attempted by any correct process to ascertain its true position.

We do not question the correctness of the decisions on which the counsel for the tenant relies.—In the cases cited from Johnson the lands had been surveyed and certain monuments erected before the deeds were executed; and the description was variant from the previous survey. The Court there decided that the generality of the language of the deed as to the lot, should be explained and corrected by the actual survey which had been made in contemplation of the conveyance.

In the case of Makepeace v. Bancroft the monument referred to in the deed did not exist at the time of the execution, but afterwards the brick wall, being the monument described, was erected, and was intended to conform exactly to the deed, though it did not. Yet the Court decided that this monument must govern the construction. It was intended to govern it.— The language of the Court in that case is this “ If a deed of “ land pass at a distance from the premises granted and reference “ should be made to a stake and stones for the termination of one “ of the lines, no such monument actually existing, and the par- “ ties should afterwards fairly erect such monument with intent to “ conform to the deed, we think the monument so placed would “ govern the extent, although not entirely coinciding with the “ line described in the deed.”—The case at bar differs from that case in two important particulars :

1. The deed referred to a curtain monument at the end of the line; but there is none referred to on Winslow's plan at the end of the third mile.

2. In the case of Makepeace v. Bancroft, the monument named in the deed, was erected with the express view of conforming to the deed.—In the case before us the acts done by the agents of the Proprietors, which are relied upon as proof of an extension westward of the lots in the third range, and a location of the west line of said range, were all performed for other purposes, and without any intention to settle the western boundary of the range.

It is admitted, or not denied, that the tenant holds the lot which he purchased, and has his complement of acres. The lot is a mile long, exclusive of the demanded premises; and as wide or wider than represented on Winslow's plan. No injustice then is done to the tenant.

We do not perceive any principle of law and certainly none of justice, which calls upon us to pronounce that such a mere mistake of a surveyor of the Proprietors, of which they had no knowledge until after the lapse of many years, and which has not violated the rights of any who claim under their grants, has had the effect completely to divest those Proprietors of their legal right and title to a valuable tract of land. The location of the Bacon-lot was not made with the intent to settle the western line of the third range, nor was Jones' survey made for that purpose. There is then no express location or extension of the lots in the third range as the tenant’s counsel contends; and if such effect is to be considered as produced hy implication, it is an implication resulting from ignorance instead of knowledge—from mistake instead of intention.

It is known to some of the Court that several years since a question similar to the present arose respecting a tract of land in Vassalborough.—The facts in the case alluded to were nearly the same as in this;—a similar error was committed by the surveyor who run out and made a plan of the lands in the rear of the third range, surveyed before by Winslow.—Upon accurate admeasurement, it was found that the fourth range did not ad? join the third, as was supposed when it was located. The cause was tried before the Supreme Judicial Court of Massachusetts, and they were clearly of opinion that the lands situated between the termination of the third tier of lots in Winslow’s plan, or the end of three miles from the river, and the fourth range as located by monuments, were the property of the Proprietors—and the decision was conformable to this opinion. It is understood that all concerned have acquiesced in it.

For the reasons we have assigned we are all satisfied that the evidence offered by the tenant was properly rejected and of course that there must be

Judgment on the verdict.

See Lunt v. Holland, 14 Mass. 149.