42 Me. 209 | Me. | 1856
Lead Opinion
This is an action of trespass quare clausum. The plaintiff claims a parcel of land in the town of Morrill, the boundaries of which are described in his deed as follows : “Beginning at the southwest corner of Jacob Dolliff’s lot, at a beech tree; thence south eighty-four degrees east one hundred and fifty-six rods to the pond to a stake and stones; thence southerly on said pond about eighty rods to a stake and stones, &c., &c., containing seventy-five acres more or less, as surveyed by said Prescott.”
As no motion for a new trial as against evidence, appears to have been made, the only questions arise on exceptions to the rulings, or the refusals to rule, of the presiding Judge.
The controversy between the parties is, as to certain bog land lying between where the “stakes and stones” are alleged to have been placed, and the water line of the pond. The stakes and stones are not shown as now standing, but evidence was introduced tending to show their original location to have been at some distance from the pond as it now is.
1. The first requested instruction was, that “if they found that there was an old stake standing at the end of the one hundred and fifty-six rods, the distance named in the deed, bearing upon it surveyor’s marks, and other indications of the character of the monument named in the deed, in the absence of all proof to the contrary, the presumption would be that it was the stake referred to in the deed.” This was refused. What the “ other indications of the character of the monument” were, do not appear to have been stated in the request. But there was no presumption of law in the case. The various facts bearing upon the stake, tending to show the same to be the monument, were proper for the consideration of the jury; but the Court could not, as requested, have given the instruction that there was any presumption of law binding on them. The evidence was entirely for the consideration of the jury.
2. The instruction given, so far as applicable to the second request, is unobjectionable.
But to this instruction, the further qualifications were added, “that the pond and stake were the monuments named in the deed, that they were identical, and that if they could find them to coincide on the face of the earth, then they would be the true monuments; but if the stake could not be found, then the pond was to be taken as the most certain. But if they should find that a stake was erected by the parties when the deed was made, or immediately thereafter, at the margin of the pond as it then was, and that, at the time it was so erected, the pond was enlarged from any cause beyond its natural margin, then such stake, or the place where it stood, would be the true monument or boundary.”
It has been held, when land adjoining a river, is described as bounded by a monument standing on the bank of the same, and a course is given as running from it down the river, as it turns to another monument, the grantee takes to the middle of the river. Luce v. Carley, 24 Wend. 451. So when land is bounded by a line commencing at a stake “by the side of the river or mill-pond,” and running by the side of said pond to another stake by the said pond, the grant extends to the thread of the river. Lowell v. Robinson, 4 Shep. 357. “It is conceded,” remarks Cowen, J., in Starr v. Child, 20 Wend. 149, “that the words to and along the river would include the stream. What difference between them and to and along the shore ? A difference in words signifying the same. In either case, taken literally or according to common understanding, they carry you to a line immediate the water
Where land is bounded upon a lake or pond, if it is in its natural state, it would seem that the grant extended only to the water’s edge. State v. Gilmanton, 9 N. H., 461. Where the pond is an artificial one, “it would be natural to presume,” remarks Shaw, C. J., in Waterman v. Johnson, 13 Pick. 261, “that a grant of land bounding upon such a pond, would extend to the thread of the stream upon which it is raised, unless the pond had been so long kept up as to become permanent, and to have acquired another well defined boundary.”
Now the qualifications of the third requested instruction, cannot be regarded as unfavorable, in any degree, to the defendant. They restrict the plaintiff to the stake and stones, if they can be found, or if their original location can be ascertained, but if neither can be, then “to the pond.” To these, defendant cannot justly except.
4. The fourth requested instruction was properly refused, for nothing is better established than that natural monuments must control both course and distance. The instruction given, in lieu of the one requested, is not one of which the defendant can complain. It required the line to be run to the pond, “unless they should find the pond was enlarged, and a stake erected as aforesaid.” In all the instructions, the precedence was given to the artificial over the natural boundary.
It is not necessary to determine whether, if the verdict had been for the defendant, the exceptions might not have been
Dissenting Opinion
gave the following dissenting opinion : —
This is an action of trespass quare clausum. The verdict was for the plaintiff. The case comes before us upon exceptions. It is admitted, that if the plaintiff has no title, the defendant has a title to the locus in quo.
The plaintiff claims under a warranty deed from Benj. Joy to Stephen Robinson, dated June 27, 1823.
The description of the premises conveyed, is as follows : “A certain parcel of land in Belmont, being lot No. 80, according to survey and plan of Noah Prescott, made for Benjamin Joy in 1822 and 1823, and bounded as follows, viz : Beginning at the southwest comer of Jacob Dolliff’s lot, at a birch tree; thence south eighty-four degrees east one hundred and fifty-six rods to the pond to a stake and stones; thence southerly on said pond about eighty rods to a stake and stones at the southeast corner of said lot; thence south eighty degrees west eighty-two rods to the road; thence north twenty degrees west on said road thirty-two rods to a stake and stones; thence south eighty degrees west eighty rods to a beech tree; thence north ten degrees east on the west line of lot eighty-eight rods to the place of beginning; containing seventy-five acres, more or less, as surveyed by said Prescott.”
The probability is, that all that part of the premises which occasions the present controversy, was formerly a part of the pond, as so denominated in common parlance. It might have been considered worthless.
The stake and stones named as the second monument in Joy’s deed, cannot be found. The course and distance from the birch tree, at the beginning, indicate the point where that second monument stood; and it was, unquestionably, on the margin of the bog or low land, or pond, as it was probably called when the water was high. It cannot be reasonably supposed that Prescott made a mistake of ninety-six rods in
The instructions of the presiding Justice were therefore erroneous, and led the jury to a wrong conclusion, or did not permit them to reach a right conclusion, or to give due effect to all the evidence.