Clark v. Burt , 58 Mass. 396 ( 1849 )

Dewey, J.

We have no doubt, that on a question of the precise location of a boundary line between two adjacent owners, the legal rights of the parties may be fixed by an award of arbitrators, mutually agreed upon, to ascertain and fix the true boundary. The difficulty, in the present case, is of a different nature; and the available ground, for denying any effect to this award, is its own uncertainty as to the line, declared by the arbitrators to be the true boundary line, as a part of the boundary ; the description is, “ to a stake and stones (described,) thence westerly by land of said Clark to a spruce tree in the swamp.” The locality of the stake and of the spruce tree are not in dispute ; but the question raised relates to the course of the line between these points. The defendant contends, that this line was a straight one between these two points. The rule is quite clear, that in the absence of all monuments, or other extraneous objects, referred to for explanation of the course of the line, a boundary line purporting to run from a defined monument, such as a black oak tree, to another defined monument, as a white oak tree, would be a straight line between those two objects. But when there is any monument, or extraneous matter, introduced into the description, as a part of the boundary, and the line between the two termini is required to correspond with or is controlled by such intermediate monuments, then the rule of a straight line necessarily yields to such other monuments, or descriptive words.

It is also quite clear, that a boundary to this effect, " thence bounded by land of A. B.,” is a boundary by a monument, or what is equivalent, and controls the course of the line. The case of Allen v. Kingsbury, 16 Pick. 235, only decides, that where a boundary line is given in a deed to be run from one given monument to another, it must be deemed to be a straight line, unless a different one is described in the deed. It is true, that in the ease cited, the description was, “ by the line of the heirs of A. B.,” but it is quite apparent, that in fact, in that case, there was no such existing line as that stated in the deed. It was only an imaginary line, passing over the land of the heirs of A. B.; and of course could not be adopted as a controlling boundary, or justify a departure from a straight line between the two points given.

The oral declaration of the chairman of the arbitrators, that the line was to be a straight line, was inadmissible to control the written award. Withington v. Warren, 10 Met. 431.

It was not competent to give in evidence the declarations of the plaintiff, made subsequent to the publishing of the award, that the line was a straight line; nor could the fact, that the plaintiff offered to pay the defendant for wood which he had cut upon the disputed premises, be competent evidence to control the award; the language of that being intelligible and certain. The party making such admissions might have mistaken his legal right, and is not to be es-topped thereby from maintaining what may be his legal title. The case of Allen v. Kingsbury, above cited, is a strong case to sustain the ruling of the court excluding parol evidence as incompetent to vary or control the written award.

Exceptions overruled.