| Mass. | Mar 15, 1868
This is a question of boundary. Both parties derive title from one Noble, who was owner upon both sides of the disputed line.
The earlier deed from Noble, under which the plaintiff has title, was to Atkins and Sturtevant, April 1, 1845. By that deed, Noble conveyed, first, the westerly part of Lot 36; and, second, the easterly part of Lot 39, “ on a plan of the property of the Boyden Malleable Cast Iron and Steel Company, made by B. H. Eddy, and recorded with Suffolk deeds, at Lib. 448.” The first is conveyed as lots numbered 1 and 2; and the second as lots 9 and 10, “ on a plan drawn by S. C. Bugbee, dated April 1, 1845.” The westerly line of the first parcel runs from Trenton Street southerly 100 feet to Lot 44; and the easterly line of the second parcel runs from Trenton Street southerly 100 feet to Lot 47; and they bound southerly on those lots respectively. Upon reference to the plans, it is apparent that these abuttals are derived only from the Eddy plan; but the measurements are taken from the Bugbee plan alone. The Bugbee plan indicates no reference whatever to the lots or division lines laid down on the Eddy plan. But by applying the Bugbee plan to the Eddy plan, so that the westerly line of lot No. 1 may conform to the westerly line of lot No. 36, every point of description will correspond, and every call of the deed will be satisfied, except the distances of the starting points from Meridian Street. (We disregard a palpable error in the direction of the southerly line of the second parcel.) The west line of lot No. 1 will then strike the corner of lot No. 44. The east line of lot No. 10 will conform exactly to the east line of lot No. 39. These two lines arc the extreme limits, east and west, of the Bugbee plan, which would seem to be a mere subdivision of lots 36, 37, 38 and 39 upon Eddy’s plan. Those four lots being each fifty feet in width, make up a front of two hundred feet. The nearest corner
The Bugbee plan makes no reference to Meridian Street in terms; but the deed adopts the figures, minuted at the front corners on Trenton Street, as distances from Meridian Street. Those distances are eight inches less than in Eddy’s plan. The plaintiff contends that, as the deed fixes the starting point at one hundred and seven feet from Meridian Street, whereas the corner of lots 35 and 36, as given on the Eddy plan, is one hun dred and seven feet and eight inches from Meridian Street, her deed must be held to embrace eight inches in width from lot No. 35. This is the locus of the controversy.
Against this construction are the considerations that, although Noble, being the owner of lot No. 35, as well as of lot No. 36, might be supposed to be willing to cut off eight inches from that lot for the benefit of his new plan, if there were occasion for it, yet no such occasion appears. On the contrary, such a variation of the westerly line would occasion a similar variation of the easterly line, cutting off eight inches from lot No. 39, where it would be useless, as he does not appear to have owned the adjoining land. The west line of lot No. 1 will not strike No. 44, but will strike No. 43 eight inches from the corner of No. 44. Lots Nos. 1 and 2, called in the deed the westerly part of lot b’S on Eddy’s plan, will in fact embrace part of lot 35, while lots Nos. 9 and 10, called the easterly part of lot 39, will not be in fact the easterly part of that lot, but will leave an intervening strip. These considerations are strengthened by the terms and form of the deed. The description of the first parcel is followed by the words “ hereby meaning and intending to convey the westerly portion of lot numbered 36,” &c.; and of the second parcel, likewise, by the words “hereby meaning to convey the easterly portion of lot numbered 39 on said plan,” namely, @ddy’s plan. The only reference to Bugbee’s plan is in the last
Undoubtedly the sale was made by the Bugbee plan, and that plan was prepared for that purpose; as the plaintiff contends. But the question is, whether that plan and the deed made from It varied the lines' given by the Eddy plan, or were intended to conform to them. The plaintiff contends that they vary from those lines, because the starting point is fixed at a distance from Meridian Street eight inches less than is indicated on Eddy’s plan for the corner of lot 35. But no monument or fixed point at Meridian Street is given, in the deed or in either plan, nor in the evidence, as the point from which the distance was or is supposed to have been measured. Meridian Street runs obliquely to Trenton Street, and therefore a difference in the measurement of the distance might result from a variation in the point of starting from the easterly line of Meridian Street, even if that were a fixed and certain line. The Eddy plan was made in 1839; and the Bugbee plan in 1845. There is no evidence that the lines of Meridian Street had been preserved unchanged, nor that they were established and made certain by fixed bounds. The case does not find what is the actual measurement from Meridian Street. For aught that appears, the 107 feet from that street as it now is, or as it was in 1845, may carry the boundary of lot 1 as far as to the corner of the original line of iot No. 36.
The two plans, being introduced, develop an ambiguity in the descriptions of the deed. The ambiguity consists in the uncertainty whether 107 feet from Meridian Street would fix the starting point at the corner of lot 36 or eight inches upon lot 35. The plaintiff does not show any fact to relieve the ambiguity, but relies upon the ambiguity itself to control the other descriptions in the deed, as to which no ambiguity exists. She fails therefore to gi~e to the circumstance of a starting point 107 feet from Meridian Street such a certain and fixed character as
The conclusion to which we thus come accords with the practical construction given to the deed by the acts of the parties. Such construction is often held to settle doubtful boundaries so as to be conclusive upon them. The case finds that in 1851, when Hayward conveyed to Stevenson, the plaintiff’s lot “ was occupied by a dwelling-house which was part of a block occupying said two lots, [Nos. 1 and 2,] and having a frontage on said Trenton Street of thirty-eight feet; but no part of said house then extended westerly beyond the division line between said lots numbered 35 and 36, as said line is indicated on said Eddy’s plan.” As the entire frontage of the two lots was but thirty-eight feet, the house would exactly cover the lots, if bounded westerly by the west line of No. 36. But, if bounded eight inches upon No. 35, the house must have extended eight inches over the east line, upon the owner of lot No. 3. If this house was built before January 23, 1846, it is a significant act by Hayward or his grantors, bearing upon the construction of the deeds in 1845, which ought to affect the plaintiff, who claims under Hayward. If the house was built after January 23,1846, then it may be regarded as an adoption by Hayward of the lines as established by the deed of correction between Noble and Sturtevant and Atkins. Having availed himself of the advantages of the line, as so established, upon the east side of his lot, he ought to be held to have acquiesced in the corresponding application of that deed of correction or definition to the west lino
The excevtions must therefore be overruled.