Smith v. Smith

| Mass. | Oct 15, 1872

Morton, J.

This is an action of tort in the nature of trespass quare clausum, fregit. The plaintiff in his declaration, among other acts of trespass, alleges that the defendant built a part of his barn upon the plaintiff’s close, and thereby put and kept the plaintiff out of the possession and occupation of a part of the close. We think it was competent for the plaintiff to prove that the eaves of the defendant’s barn projected over the plaintiff’s close. Projecting his eaves over the plaintiff’s land is a wrongful act on the part of the defendant which, if continued for twenty years, might give him a title to the land by adverse occupation. It is a wrongful occupation of the plaintiff’s land for which he may maintain an action of trespass. Codman v. Evans, 7 Allen, 431. Carbrey v. Willis, Ib. 364.

We think that the ruling as to the construction of the deed from the defendant to the plaintiff, as we understand it, was substantially correct. The lines in dispute run from the northwest corner of the barn “ southerly in a line with the west end of the barn four rods to a stake and stones, and thence easterly fifteen feet in a line at right angles with last mentioned line to a point equidistant from the west and east line of the lot owned by the grantor and grantee in common.” The familiar rule that, in the construction of deeds, monuments govern courses and distances, is to be applied. The “ stake and stones,” mentioned as the point to which the first line runs, constituted a monument which must govern the described course and distance of the line, if they conflict with it. It is a question of fact for the jury to determine where this monument was located at the date of the deed ; and when determined, it null govern, though not exactly fifteen feet distant from the central point described, or though the westerly line may not be exactly in a line with the west end of the barn. Upon this question, the description of the westerly line as being of the same course as the line of the west end of the barn, is evidence for the jury of the location of the stake and stones, as is also the description in the deed giving fifteen feet as the length of the southerly line, and its course as at right angles with the westerly line. The exceptions do not show that the trial did not proceed upon this view. Dawes v. Prentice, 16 Pick. 435.

We are of opinion that the instruction to the jury, that if the defendant’s barn “ came over on to the plaintiff’s land no more than a fence of ordinary width ” would, it would not be a trespass, was erroneous. It was not erected as a fence, and was not a fence. A man who erects a barn or other building partly upon the land of another, without any agreement that the wall shall be a division wall or fence, cannot defend an action of trespass by showing that it covered no more of the plaintiff’s land than a fence would. Such an occupation is, in its nature and legal effect, entirely different from the occupation by a fence. It is an adverse occupation which, if continued for twenty years, will give a title to the soil by prescription. Exceptions sustained.