Wilson v. Hildreth

| Mass. | Oct 23, 1875

Endicott, J.

The first boundary line described in the plaintiff’s deed extends from the Northfield road “ north 61° east by land of Gilson ninety-nine rods to a stake and stones.” No stake and stones are to be found on this line, or any other bound which can be said to determine the extent of the line, unless a rail fence twenty rods further north can be so regarded.

A stake and stones form a boundary or monument, frequently referred to in deeds, of a definite and distinct character; and such a boundary is not satisfied by a rail fence, unless from other portions of the deed it is clear that it was the intention to carry the line to such fence, as the point indicated by the description “ stake and stones.” In the absence of any such intent, the stake and stones called for must be presumed to be located by the measurement ninety-nine rods from the Northfield road. Lincoln v. Edgecomb, 28 Maine, 275.

The second boundary line in the plaintiff’s deed is from the stake and stones, “ south 28^° east ninety-eight and rods to a post in a rail fence, at land of Dike; the last line running near said rail fence, all of which is conveyed to said Wilson, should there be any part of it east of said line.” It is contended by the plaintiff that the line here called for must be through its entire length near the rail fence, south 16° east one hundred and one rods, to the post at land of Dike as indicated on the plan; and therefore that the first line must terminate at the rail fence, and not ninety-nine rods from the Northfield road.

But this position is not tenable. The line of 98^ rods, as appears upon the plan, does at its southern end run near the rail fence, and actually crosses it before it reaches the post at Dike’s land, so that some of it would pass by the words, “ all of which is conveyed to Wilson, should there be any part of it east of said line.” By limiting the first line to ninety-nine rods from the Northfield road, the length of that line, the course and length of the second line, and the number of acres, correspond precisely with the requirements of the deed. By extending it to the rail fence, a very different lot is obtained from that described in the deed by measurements and courses. The fact, therefore, that the second line, for which the plaintiff contends, is nearer the rail fence through its entire length than the other, is not in itself of sufficient significance to extend the first line to the rail fence, and establish the stake and stones as a boundary at that point. The line of 98f$r rods runs sufficiently near the rail fence at one end to satisfy the language of the deed, and the measurement of ninety-nine rods must govern the first line and determine the extent of the grant. The locus in dispute did not pass to the plaintiff by his deed.

When the monument cannot be found, and its location cannot be made certain, the measurements and other provisions of the deed must be resorted to. See Morse v. Rogers, ante, 572, and cases cited. Judgment for the defendant.