| Conn. | Apr 15, 1876
Both parties» claim title to the locus-in quo by virtue of the same instrument, namely, the return of the distribution of the estate of Joseph Ball deceased.
The plaintiffs claim, in behalf of Mrs. Boberti, as an heir at law of the deceased, that the land in dispute was set to her, while the defendant claims that it was set to his grantor, Josiah I. M. Beach, another heir at law of the deceased. The controversy arises from the fact that the distribution gives conflicting descriptions-of the land distributed. It is minutely described as abutting on the land of the adjoining proprietors, and at the same time the length of the exterior lines is given, which on the east and west sides is found to exceed the actual length of the abutting lines by about twenty feet.
The defendant also claims that, as his eastern boundary on the railroad gives one hundred and forty-seven feet, he is entitled to that precise number of feet, although the entire length of the eastern line of the land to be distributed was only one hundred and eighty-six feet, and Mrs. Roberti’s portion is also bounded east on the same railroad fifty-nine feet, when, (if the defendant’s claim is true,) it should have been only thirty-nine feet, and should also have bounded east, in part, on land set to Beach, the defendant’s grantor. This is not a case where either party has any priority of right by virtue of priority in the distribution. The instrument to be construed is one, and all its provisions must be considered together. As there is no way of reconciling the two descriptions, so that both may stand together, the question is which must prevail; and this must be determined as matter of legal construction. For the purpose Of determining this question we may summon to our aid certain rules of law which are applicable.
The cardinal and fundamental rule is that the intention of the parties is in all cases to govern the construction; not the intention to be found as an independent fact from extrinsic evidence, but to be derived from the instrument itself. The distributors have finished their work and cannot be again called to state what they intended. See this case as reported in 42 Conn., 266" court="Conn." date_filed="1875-04-15" href="https://app.midpage.ai/document/roberti-v-atwater-6580058?utm_source=webapp" opinion_id="6580058">42 Conn., 266.
Another principle is that descriptions about which there is the least certainty must yield to those of the greater certainty. And it is well settled, as a general rule,- that measurements must yield to boundaries or monuments, when certain, or capable of being made certain. George v. Wood, 7 Allen, 14;
The rule which gives to monuments and boundaries a controlling effect is not inflexible; boundaries may be inadvertently inserted or omitted, they may contravene all the other terms of description, so that to adhere to them might defeat the evident intention of the parties, in which case tire extent of the grant would have to be determined by other portions of the description. Morse v. Rogers, 118 Mass., 572" court="Mass." date_filed="1875-10-23" href="https://app.midpage.ai/document/morse-v-rogers-6418264?utm_source=webapp" opinion_id="6418264">118 Mass., 572.
But with these qualifications the rule may be safely applied. It holds good in all cases where the reason of it exists. Whenever a person is about to purchase land ho naturally looks at the fences and visible monuments which inclose it and estimates its quantity and value by that means, and the parties are less liable to be mistaken as to such visible indications of the line than they would be as to measurements.
This is not a case where the limits of another’s land are referred to generally, and there are no visible indications of the location of such limits; but the abutting land is found by the jury to have consisted of definite inclosures fenced in on all sides, the existence and location of which were well known. We think therefore in this case that such boundaries are more certain and less liable to mistake than the measurements. And as applicable to the facts of the case we think the judge correctly charged the jury that, “ if they should find that at "the time of the distribution the three lots fronting on State street, owned respectively by the heirs of John Douglass, Frederick Dayton and J. I. M. Beach, were fenced in on all sides, so as to be definite inclosures; and that the existence and location of these fences were at that time well known to the distributors, and to all parties interested in the Ball estate, as marking the bounds of said lots; then the southwestern corner of the lot distributed to Beach, and now owned by the ■defendant, is not extended beyond the southeastern corner of the Douglass lot, merely by the mention of one hundred and forty-seven feet as his western boundary.”
The counsel for the defendant complains of this part of the charge, that it supplements the description by boundaries by
But this case may be considered in another aspect leading to the same conclusion.
In case, of conflicting descriptions we may sometimes reject one as the false description and adopt the other as true. Of course the assumption that one description is false is not to be arbitrarily made, but it is to be derived from the instrument itself, with proof of such facts as are competent to be shown in aid of the construction of a written instrument; and that description is to be adopted as true which is most in harmony with the apparent intention as gathered from the same source.
There is in this case other evidence besides the presumption arising from the rule that boundaries are more certain than measurements, to show that the mistake was in the measurements and not in the boundaries. The conflict here is not simply between descriptions by abuttals and by measurements, but as applicable to the east line there is a conflict of measurements. If the defendant is entitled' to his hundred and forty-seven feet east on the railroad, because the distribution says so, then Mrs. Roberti is entitled to her fifty-nine feet east on the railroad for the same reason; but a hundred and forty-seven feet and fifty-nine feet cannot both be contained in a hundred and eighty-six feet, which is the entire length of the east line of the land to be distributed. There must have been a mistake somewhere in measuring. The argument for the defendant here assumes that Mrs. Roberti’s measurement must yield to the defendant’s measurement. We know of no ^ presumption that would give the benefit of the mistake to the defendant rather than to her. Indeed, if it was within our province to presume at all, we should say a mistake of twenty feet would be more likely to be made on the long east line of the defendant than on the short line of Mrs. Roberti.
A new trial is not advised.
In this opinion the other judges concurred; except Carpenter, J., who did not sit.