Lincoln v. Wilder , 29 Me. 169 ( 1848 )

Wells, J.

The demandant claims to recover a portion of lot 52, in Dennysville, lying between the shore and the centre of Dennys river. It appears by the statement of facts, that his title is derived from James G. Russell, and that lot 52, according to the plan of Dennysville, by Benjamin R. Jones, is one of the lots described in the deed. Whether he has a title from any other source does not appear. It is contended by him that the side lines on Jones’s plan do not extend to the water, and that the plan does not embrace the territory between the shore and the centre of the river. If so, unless he has some other title than that disclosed, then he is not the owner of the demanded premises. If he claims by the plan, and that does not embrace the premises, he cannot recover.

But according to the copy of the plan furnished by the tenant’s counsel, the side lines appear to be extended in the usual manner to the water. It does not exhibit any different appearance from other plans where lots are bounded by rivers. If it had been intended by Jones, not to embrace the space between the shore and the centre of the river, in lot 52, he would probably have made his plan, so as clearly to indicate that intention.

Whatever title the tenant, has, is derived from the demand-ant, through E. C. Wilder, who conveyed to him the same, which was derived from the demandant.

No copies of the deeds have been furnished. The description of the premises, granted by the demandant to Wilder, is obtained from the arguments of the counsel. It is as follows : “ a certain lot or parcel of land, in Dennysville aforesaid, containing two hundred and eighteen acres, more or less, bounded partly by lot numbered fifty-three, partly by Abner Gardner’s lot, and partly by the shore of Dennys river, said premises being the lot numbered fifty-two on the plan of said town of Dennysville, (late township No. 2,) by Benjamin R. Jones, which plan is recorded in the registry of deeds for Washington county, reference being had to said plan.”

Land, bounded by the shore, limits the grantee to it, and does not extend over it. Storer v. Freeman, 6 Mass. R. 435 ; Lapish v. Bangor Bank, 8 Greenl. 85; Handly’s lessee v. Anthony, 5 Wheat. 385; Nickerson v. Crawford, 16 Maine R. 245. The use of such a term manifestly excludes the bed of the river. Child v. Starr, 4 Hill, 369. And if it were the intention of the demandant, by the deed, to limit the western boundary by the shore, then he would be entitled to the land, between the exterior line of the shore, and the filum medium aquce.

Where land is conveyed according to a plan, to which reference is made in the conveyance, it becomes a part of it, as much so, as if it were incorporated in the conveyance. This is a well established rule of construction. The demandant says in his deed, “ said premises being the lot numbered fifty-two on the plan,” &c. He makes the plan a part of his deed. Davis v. Rainsford, 17 Mass. R. 211.

The plan bounds the lot, on the west, by the river, and is to be viewed in the same manner as a deed, bounding a grant by a river. In such case it is stated, in Storer v. Freeman, which is supported by a long and unbroken series of decisions, “ that the owner of land bounded on a fresh water river, owned the land to the centre of the channel of the river, as of common right.” If then the demandant intended by the deed, to convey the land according to the plan, the premises demanded belong to the tenant.

The intention of the grantor is to be carried into effect, if it can be ascertained. Did he intend to limit the grant to the shore, or in accordance with the plan, to extend it to the thread of the river?

General and comprehensive words may be restrained by particular words following them. Roe v. Vernon, 6 East, 51; Moore v. Griffin, 22 Maine R. 350. But in the present case, the particular words, creating the restriction, if there be any, precede the general ones.

In the case of Thorndike v. Richards, 13 Maine R. 430, the general description was limited by the particular one, following it; and the same mode of construction was adopted in Allen v. Allen, 14 Maine R. 387, and Barnard v. Martin, 5 N. H. R. 536.

In Keith v. Reynolds, 3 Greenl. 391, there was a general description, but the courses and distances, which followed, did not embrace all which was contained in the general description. But the general description was adopted. So also in the case of Moore v. Griffin, before cited, the particular words were not considered, as limiting the grant to the shore of the river.

In the case of Cate v. Thayer, 3 Greenl. 71, by the act incorporating the town of Dresden, the courses and distances would exclude the farm of Dr. Gardiner, but the act declares it is to be included. And it was decided to be included. In the case of Melvin v. Proprietors of L. & C. on Merrimack river, 5 Metc. 15, the conveyance was of the “ estate on which the said Moses Cheever now lives, and which was conveyed by Benjamin Melvin and Joanna Melvin to Dr. Jacob Kittridge, by deed dated the 25th day of April, 1782.” The description in the deed did not contain so much land, as was embraced in the farm occupied by Cheever. The reference to the deed from the Melvins was not considered as limiting the land previously described. The mode of construction, adopted in the cases of Barnard v. Martin, before cited, and Woodman v. Lane, 7 N. H. R. 241, is not in harmony with that laid down in the 5th Mete.

The rule is quite plain, that a general description may be affirmed or restricted by a special one, but the difficulty consists in the application of it, and in determining whether the language employed is intended to be used, in a restrictive sense; and it is difficult to find any precise rule, furnishing a sure and unerring guide in such inquiry.

It is also apparent, that the mere arrangement of the words, the same sense being preserved, can make no difference in the result.

The leading idea, to be obtained from the cases is, that what is more certain shall prevail over that, which is less so, and the part of a description, which the parties must be supposed fully to understand, will triumph over that, which is more obscure, and whose delineation would require a more accurate and careful examination. As monuments are generally decisive, that which approximates more nearly to them, has a controlling influence.

In the description under consideration it is stated, “ said premises being the lot numbered fifty-two on the plan,” &c. According to the demandant’s construction, it was a part only of the lot conveyed. If the whole lot had not been intended to be conveyed, one would suppose, that a part of it would have been expressed, or some exception made. The deed and the plan correspond in the number of acres; but the deed says more or less. All the boundaries could not be found without reference to the plan. There is no other way of finding the eastern side, but by reference to it. It is a map of the premises, and would clearly indicate what was granted.

In Cate v. Thayer, before cited, in the description of the boundaries of Dresden, C. J. Mellen says, the Gardiner farm is a monument. In the same sense, lot fifty-two is a monument, it being truly described by the plan. The courses laid down did not include the Gardiner farm, and the course, “ partly by the shore of Dennys river,” would not include lot fifty-two. But the Gardiner farm was considered within the town. So also, for the same reason, the lot would pass by the conveyance.

Yet it may be correctly said, that the shore is a monument also, and not a course indicated by the compass. Then there would be two monuments, incompatible with each other. By the same rule, we are to ascertain, which of them is the more certain and the more prominent.

Where a person purchases a lot, according to a plan, he must understand, that he would obtain the whole lot, in the same manner as other lots were granted, in the township. But if the deed described a portion of it, as bounded by the shore of a river, it might not attract his attention so forcibly as the plan, or he might misapprehend the meaning of it.

Although it may be difficult, to arrive at a satisfactory conclusion, we are inclined to the determination, that the plan is the more certain and prominent part of the description.

But if the expressions of a deed are contradictory, creating so much doubt, that it cannot be known, which of two descriptions is the true one, the deed is to be construed most favorably to the grantee.

In the case cited from the 5th of Mete, it is said, “ that where there is a doubt as to the construction of a deed poll, it shall be taken most favorably for the grantee. If, therefore, there be two descriptions of the land conveyed, which do not coincide, the grantee is entitled to hold by that, which will be most beneficial to him. It must, however, be a case of real doubt; for if one of the descriptions be more certain than the other, the more certain description must govern, although the construction may be less favorable to the grantee.”

In a deed poll, where there is a doubt, the construction must be against the grantor. Worthington v. Hyler, 4 Mass. R. 205. Where a deed may enure in different ways, the person to whom it is made, shall have his election which way to take it. Jackson v. Blodget, 16 Johns. 178. The descriptions of the western boundary, in this deed, are clearly repugnant. The plan bounds the premises by the thread of the river, the other description by the shore, and there is no language in the latter, limiting the former.

If one description is not more certain than the other, then it is a case of doubt, as to which shall be adopted, and fails within the rule of construction most favorable to the grantee, and the whole of the lot is conveyed. It results from either view, that the tenant is entitled to judgment.