Higley v. Bidwell , 9 Conn. 455 ( 1833 )

Peters, J.

The motion presents three questions.

1. Were the doings of freeholders admissible ? This was a proceeding under the statute,of 1719. Stat. 112. rev. 1750. The freeholders were appointed by a magistrate, and sworn to act impartially. They were empowered to set up and fix bounds, which the statute declares shall be recorded, and re-maw the bounds ol such lands. The same statute further provides, that whenever any action is brought to recover possession according to the bounds set up, if the defendant shall not prove, that the bounds he claims to hold to, are the just and true hounds, judgment shall be given for the plaintiff to recov~ er possession accordmg to the bounds set up, i. e. shall ba prima facie evidence of tithe. The only objection to the proceedings of this domestic tribunal, is the case of Humphrey v. Pison, 1 Root 259. which contains neither fact, argument nor Jaw.

2. Were the declarations of Ezekiel humphrey and Drzn~. iel Dyer admissible ? The principal objection seems to have been, that a controversy had previously existed between Ezekiel humphrey and Benjamin Dyer (under whom Daniel Dyer occupied) respecting their boundaries. But it appears to have been an amicable controversy ; ending in a friendly compromise, by a recognition of the ancient boundaries estub lished by the committee, who surveyed and laid out the original sequestration in 1706 ; and by the freeho)dcrs, who set up and fixed (lie same in 1757 ; and by a release from the original lessee to the other party, of the land in question. And we are informed, by the late Cli. J. Swift, that in this state, the declarations of old pe~ple respecting the ancient bounds or monuments between the lands of indi~idual proprietors, who w'ere acquainted with them, have constantly been admitted in evidence, 1 ~Sw~Ths Dig. 766. Sw~J~'s Eu. 123. 1 Phill. Eu. 197, 8. and eases there cited.

3. Was the charge of the court correct? The question arising on this charge has been SO often and so uniformly decided, that it would probably never have reached this court again, without the aid of the legislaturc.^(b) l3ut as it is here, we must decide it, although it comes not " ut nouns hospes.'~ The first case on this point within my memory, came before the superior court, in February, 1793, in Snow v. Chapman, 1 Root, 528, wherein it was decided, that in a grant of land, within certain bounds, calling it more than it is, the covenants extend only to the land within the bounds, Similar decisions ^ave keen made in many of our sister states. I will notice a few of them. In Howe & al. v. Bass, 2 Mass. Rep. 380. 382. Parker, J. said : “ There is no rule of construction more established than this, that where a deed describes land by its admeasurement, and at the same time by known and visible monuments, these latter shall govern.” In Pernam v. Weed, 6 Mass. Rep. 131. 133. Parsons, Ch. J. said: “When the boundaries of land are fixed, known and unquestionable monuments, although neither courses, nor distances, nor the computed contents, correspond, the monuments must govern.” In Preston’s heirs v. Bowmar, 6 Wheat. 580. 582. Story, J. said : “ It may be laid down as a universal rule, that course, and distance yield to natural and ascertained objects.” In McIver’s lessee v. Walker & al. 9 Cranch 173. S. C. 4 Wheat. 444. 447. Marshall, Ch. J. said : “ It is a general principle, that the course and distance must yield to natural objects called for in the patent.” And the late Chancellor Kent, in his excellent Commentaries, says : “ In the description of the land conveyed, the rule is, that known and fixed monuments con-troul courses and distances.” Vol. 4. p. 445. The Chief Justice of this Court, in delivering his opinion in Belden v. Seymour & al. 9 Conn, Rep. 19. says: The rule is, that known and fixed monuments controul courses and distances.”

I would not advise a new trial.

The other Judges were all of opinion, that the case was properly disposed of, and would not disturb the verdict. Daggett, Ch. J. and Willia.'is, J., however, expressed some doubt whether the declarations of Humphrey and Dyer, made post litem motam, were admissible.

New trial not to be granted.

(b) ~(b) Vid. S~t. 183G. p. 988. c. ~3.•. 1.