Stetson v. Adams

91 Me. 178 | Me. | 1898

Haskell, J.

Writ of entry tried upon the general issue. The verdict was for defendants, and plaintiffs move for a new trial < because it is against law and evidence. Plaintiffs and defendants are owners of contiguous townships,- and the controversy is over the dividing line between them. Plaintiffs own township 4 in the ninth and defendants township 4 in the eighth range of townships, said ranges extending west from the Penobscot river to the “ Million Acres ” on the Kennebec. Range 6 having already been surveyed, Massachusetts commissioned Samuel Weston, hr 1794, to survey three ranges north thereof, divide them into townships of six miles square and run and spot the lines. Qn the 7th of the following November, Weston returned to the secretary’s office a plan of his'work, showing the line between ranges 8 and 9 to intersect the Penobscot, at “ Three Islands.” His field-notes have not been preserved. The plaintiffs contend for the range line as shown upon the plan, but the defendants assert that the survey placed it a mile or more further north.

Nothing is more firmly established in this state than that,, in such case, the survey must govern when its location can be shown; when it cannot be, then the plan may locate it. Bean v. Bachelder, 78 Maine, 184.

The controverted range line from the Million Acres to the Penobscot is some sixty miles in length and is or intended to be straight, and appears to have been run from west to east. The western end of the line is not in dispute. The eastern end is. On this line, between the second and third tiers of townships divided by it, east from the Million Acre tract, the evidence discloses two ancient beeches, bearing surveyors’ marks. One lay Upon the ground and bore a surveyor’s seal and 1794. Running south 84° east the growth is old, and not far on, a spot from a spruce was cut out and is produced in court, showing by its age to have been made in 1794. Continuing six miles, the line is well marked, sometimes by ancient spots. A poplar bears surveyors’ marks and there are indications of a north and south line. Continuing on for some four miles ancient spots as well as later ones mark the course where a section from a cedar was cut out and is produced. •It had four spots upon it of the age of 73, 65, 37 and 31 years, respectively. For nearly a mile farther the old growth remained, and both ancient and new spots mark the line. One was cut from a maple showing 102 years’ growth, or as made in 1794. That was within three-quarters of a mile of the Katahdin Iron Works Railroad. From there to the railroad the forest had disappeared and no spots were found. For quite a number of miles further not much remained to bear the ancient mark of a surveyor, although records of more recent surveys were seen. Crossing Schoodic Lake, the marks of surveyors of comparatively recent date, show a line, and a hemlock bore a spot that was cut out and is produced showing a spot made in 1794. Fifty rods further on, a spot was cut from a spruce and produced, made in 1794. Then, across Endless Lake, a spot made in 1794 was cut from a spruce and is produced. Farther on, across east branch of Seboeis, a spot made in 1794 was cut from a beech and is produced. The last four spots were cut east of the township in controversy. The surveyor who cut these spots testifies, that by reversing his course and running north 84° west he struck the two ancient beeches first named, and continuing a short distance found old trees well blazed. He •cut out a spot from a hemlock, and produced it, made in 1794. In a short distance further on he cut from another hemlock, and produced it, a spot made in 1794. Further on he cut, and produced, a spot made from a hemlock made in 1794, and still farther a yellow birch, well blazed but illegible, and a stone post. Then came old growth and ancient marks clear through in places to the end of the line.

There was more evidence concerning the cross lines of townships, and all the evidence was much more in detail than here given, but only enough has been recited to show its general trend and significance. This territory had never been surveyed before Weston in 1794, and the living records of time, written in nature, tell of work done that year that cannot be ascribed to any other hand than his. From the Million Acre tract on a course south 84° east across and far beyond the townships owned by these parties his line had been marked, and has been preserved by nature herself, so there can be no mistake as to where he run his line, although seemingly buried under the moss of a century. That none of Weston’s marks exist upon the line within the limits of the townships owned by these parties, for want of trees old enough to preserve them, or from the destruction of trees upon which they were made, cannot shake the certainty that the well known line, both east and west of them, continues across them, although that section of it may have been lost, and although a continuance of the marked line may not strike the Penobscot at Three Islands, or may not have actually been surveyed further east than the last spot found. The jury cannot be said to have erred in finding the Weston survey to have been placed upon a marked line across these townships. But the plaintiffs contend that other considerations overthrow any actual survey that may appear to have been made.

I. Plaintiffs contend that Weston made a mistake in his survey of the line between ranges 8 and 9, and base their contention upon the following facts:—Township 4 in range 7 was granted to Bowdoin college, and some uncertainty having arisen about its north line, that is, the range line between 7 and 8, Massachusetts, in 3 801, ordered Weston to make a survey of township 4, range 7, and in his letter of explanation, so far as material to this case, says that he employed his brother to run the north line of range 9, and one John O’Niel to run the south line, that is, the line between ranges 8 and 9, “with particular instructions where to leave the Million Acre line”; that he surveyed from the northeast corner of township 1 in the sixth range up river, marking the corners of townships as he went, to the northeast corner of township one in the ninth range, and awaited the arrival of his brother on the north line of range nine, and that the brother struck the river with his line within six rods of the corner that he had made for him. He says that he came away before O’Niel reached the river as he met with “ so many obstacles from low swampy land and ponds on the line that when O’Niel came down river he gave “an account of his voyage,” and says that “I rather concluded he had struck the river above my station made for him to come out at.” He says O’Niel was a practical surveyor and a man of ability and. good understanding, and if anything “ rather too nice and curious to have the work performed just sothat absolute exactness cannot be expected in so broken a country as that is; that so many obstacles from ponds with all their arms, legs, inlets and outlets, swamps, bays, thickets, morasses, mountain cliffs and gullies in so close a succession render it much more difficult to close lines that might often be wished for.” The line between ranges 8 and 9 was not re-run, and O’Niel’s survey was left as he made it, striking the river further north than the point fixed for him to strike. Nevertheless, there was his survey, marked upon the ground, and there the law makes the line. The re-survey of township 4 in the 7 th range does not move the located lines between ranges 8 and 9.

II. Plaintiffs contend that Massachusetts, in 1820, re-surveyed by Greenwood the east half of township 3 range 8, the town next east of defendants, and conveyed the same accordingly; that the survey fixed the northeast corner to the south of the Weston line and where it should have been to strike Three Islands on the Penobscot. But that does not change the Weston survey, and does not purport to. It simply puts the Weston plan upon the earth, puts it where O’Niel did not put it, and therefore cannot change the location of his survey between other townships. Nor can the smwey by Gilmore of the other half of township 3 in 1831 ordered by the land agent of Maine, change the O’Niel line, any more than the Massachusetts survey in 1820 can do so. Plaintiffs contend that O’Niel abandoned his line before he' reached the Penobscot. Suppose he did. The survey, so far as he did make it, must stand. Weston adopted it. Weston says, in his letter to Massachusetts in 1801 that O’Niel reached the river and above the station, so far as he could judge from O’Niel’s account, and excuses the inaccuracy of the result from natural causes, but he nowhere repudiates the survey.

III. Plaintiffs contend that the survey of Silas Holman in 1822 by authority of the commissioner appointed under the act of separation, providing for a division of lands between Maine and Massachusetts, adopted the Weston plan and must control. The parties took their titles under the Holman plan, which is referred to in their respective deeds. The defendants from Massachusetts in 1834, the plaintiffs from Maine in 1863. The deed bounds the defendants northerly by the plaintiffs’ township, and the plaintiffs take township 4 range 9, according to survey and plan “in by Weston and Lewis and Holman, surveyors.” The plaintiffs must recover, if at all, upon the strength of their own title. That title is according to the survey and plan by Weston and Lewis and Holman. The Holman, or Holman & Rose plan, for there is but one, purports to have been made from former surveys made by Massachusetts and by order of the commission in 1822. The only surveys by Massachusetts were Weston’s in 1794, and Greenwood’s in 1820. The only survey by the commission was Holman’s in 1822. The plan was composite. It was compiled from two surveys, so that Weston’s survey must stand, unless superseded by Holman’s. Was it ? Holman surveyed from the northwest corner of one in the eighth to the Penobscot, coming out, not where O’Niel’s survey struck the river, but where it ought to have struck it, and if Holman’s survey be produced westerly, according to the Weston plan, across township two, it would become coincident with Greenwood’s survey between the east half of township three in eight and three in the ninth, and also coincident with the surveys made by Gilmore between the west half of these townships in 1831., At the easterly line of plaintiff’s land, all the surveys subsequent to Weston’s stopped. None of these surveyors found the O’Niel line, because they did not look north far enough to find it. They supplanted it from the Penobscot westerly across townships one and three only. From there on, Weston’s survey, the O’Niel line can be traced to the Million Acres, and that, being the only survey, must stand so long as its location can be found. Of course, this view does not give a straight line from the river to the Million Acres. It is straight to the west line of township three, and then is set over to the north where O’Niel ran through, and then goes straight westerly to its end. Unless the doctrine that a survey shall govern the plan be overturned, no other solution can be given to this case, so long as the verdict stands fixing the O’Niel line upon the face of the earth.

IY. Plaintiffs have six exceptions, but five and six only have been argued and need only be considered. The fifth is to a refusal of a requested instruction in substance that the Rose & Holman plan is conclusive. Of course it is not, against a former survey, as already stated.

The sixth contains a recital of facts that do not fit the case and was properly withheld. No exceptions as to the conduct of the jury have been allowed, but are waived.

Motion and exceptions overruled.