111 Me. 256 | Me. | 1913
These are real actions, and all depend upon substantially the same state of facts. They come before us on report. The plaintiffs are the owners of cottage lots fronting on Long Sands Beach in York. The defendant’s land abuts the lots on the rear. The single question in issue is, where is the line of' the rear ends of the plaintiffs’ lots? The lots are all a part of a tract of land conveyed by Jeremiah Donnell to Lebbeus Hill by deed dated November 10, 1874, and the titles of the plaintiffs come by mesne conveyances from Hill. In the deed from Donnell to Hill the front, or southeasterly line of the tract, towards the beach, was described as running “southwesterly by the northwesterly side of the road leading across ‘Long Sands Beach,’ forty rods, to the northeasterly corner of my pasture, as now walled in.” The rear, or northwesterly, line was described as parallel with the front line, and “seven rods and twenty-two links” distant therefrom.
There is before us no record of the laying out of the original road across Long Sands Beach, and no evidence of the location of its boundaries as laid out. But that there was such a road, recognized as a legal highway, may be assumed, we think, from the fact that in 1889 the county commissioners, upon th.e petition of the municipal officers of York to locate and define the limits and boundaries of the way in accordance with R. S. (1883) chap. 18, sect. 11, on the ground that the boundaries were “doubtful, uncertain or lost,” did define the boundaries of the way as a two rod road; and from the further fact that in 1894, upon a petition representing that the road was narrow and not safe nor, convenient for public travel and praying that it be widened and straightened, the county commissioners straightened the road and widened it to three rods. The
The Donnell tract was cut up by Hill or his grantees into lots fronting on the road and one hundred feet in depth, and each of these plaintiffs owns one or more of these lots. The deeds to the plaintiff, Rounds, were prior to 1894, the deeds to the other plaintiffs, subsequent. Back of these lots there still remained in the Donnell tract a strip of land 30.02 feet wide, and this strip was owned by Lillian'H. Davis. Since 1894 each plaintiff has bought of Davis land in the rear of his own lot. And in each deed the northwesterly line of the land conveyed, which is the line in dispute, is described as being “seven rods and twenty-two links” northwesterly from the “road” leading across “Long Sands Beach.” The disputed line is seven rods and twenty-two links from the “road,” as all agree. The problem, then, is to find where the road was, which was referred to in the deeds. As all these Davis deeds were subsequent to 1894, the defendant contends that the reference to the “road” in the deeds must be construed as meaning the road or way as it was limited and bounded by the county commissioners, in 1894. The plaintiffs, on the other hand, contend that the word “road” meant the road as wrought and traveled, and not the road as laid out, either originally or in 1894. They contend that it was the intention of the parties that the deeds should cover the land precisely as far back as the deed from Donnell to Hill went in 1874, that is, seven rods and twenty-two links from the northwesterly side line of the -road as used in 1874. That line the plaintiffs claim was about five feet northwesterly from the highway line as determined in 1894. And as the line of the road is the starting point in both deeds, there is the same distance of five feet in the rear, between the lines contended for by the two parties. Between those lines the parcel in dispute.
In the first place, where was the 1874 line? When the line of a road is referred to as a boundary in a deed it is a question of intention whether the reference be to the road as laid out, or to the road as traveled and used, in case the road actually traveled lies in whole or in part outside the limits of the way as laid out. Tibbetts
Next, where on the face of the éarth was the side line of the road as used in 1874 ? This is a matter of dispute. But there is evidence tending to show that there existed as long ago as 1880 the remains of a stone wall at several different places along the front side of the Donnell tract, by the road; that although the greater part of the wall had then disappeared, the sections that remained appeared to be substantially in a line following the course of the road, and as if
Now if there was jn 1874, or had been previously, a wall separating the traveled road from the adjacent land, and public travel passed along by the side of that wall, the inference is a strong one that the wall marked the line of what was supposed to be the road, and that when the line of the road was referred to in a deed, it meant the line as marked by the wall, which was the physical boundary of the road. This inference is strengthened by the consideration that the westerly end of the line described in the 1874 deed was tied to the easterly corner of the Donnell pasture “as now walled in.” The wall at the corner fixed the location of the line at that point. And the evidence shows, we think, that some part of the pasture wall still remains, and that it is substantially in the line of the old stone wall to the east, as claimed by the plaintiffs.
We accordingly sustain the contention of the plaintiffs that the deed of Donnell to Hill in 1874, beginning at the line of the old stone wall conveyed to a line seven rods and twenty-two links northwesterly from it.
That being so, the next question is, from what line is the distance northwesterly named in the Davis deeds since 1894 to be measured? Each of these deeds gives the distance as “seven rods and twenty-two links from the road.”
In the first place there is no evidence in the record before us that' the course of actual travel oh the northwesterly side of the road differs from that in 1874. If the road, as used, was not changed prior to the Davis deeds, it follows that the “road” referred to in them is the same road that was referred to in the Donnell deed in 1874. And in that case, the call in these deeds of “seven rods and t'wenty-two links” would start at the same point as the call for the same distance started in the 1874 deed, namely, at the site of the old stone wall.
Upon the whole we conclude that the plaintiffs’ titles extend back seven rods and twenty-two links from the line of the road as it was used in 1874, and marked then by a wall or the remains of one. This covers all the land claimed by them in these suits. The certificate in each case will be.
Judgment for the plaintiff.