110 Mass. 302 | Mass. | 1872
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
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