Whitten v. Hanson , 35 Me. 435 ( 1853 )

Wells, J.

— 'The demandant, Thomas H. Cole and Stephen W. Dearborn were owners, as tenants in common, of the Cutis lot. For the purpose of making a division of the lot, they employed Thomas Q,uimby to make a plan of it. He made a plan without viewing the land, and without any actual survey or admeasurement. A division was made between the owners corresponding to the plan, to which reference is made in the deeds of partition. Lots numbered four and five upon the plan were convoyed to the demandant, who conveyed number five, “ meaning to describe number five on a plan of the Cutts lot,” to William H. Hanson, and. the tenant has the title of William H. Hanson. The question between the parties relates to the dividing line of lots four and five. Those lots are laid down upon the plan as of the same width, and contiguous to each other.

By an accurate admeasurement, as appears by the plan of Eliphalet Nott, of the tier of lots lying on the southerly side of Cutts street, there is an error in Guimby’s plan. The northerly line of the tier is eight feet and -r60%, and the southerly line is seven feet, longer than these lines are stated to be on Guimby’s plan. There are no monuments to mark the boundaries between the lots, while the exterior boundaries were certain and fixed. As it was not the intention to leave any surplus, but to divide the whole land, the case falls within the principle of Brown v. Gay, 8 Greenl. 126, and Mosher v. Berry, 30 Maine, 83. There is nothing to prevent the application of this rule to the several lots, and each one will be entitled to its share of the surplus in proportion to its length of line from Maine street to the land of the Water Power Company.

If the line of the lots is run from Main street so as to include number four, and that of number five is run from the land of the Water Power Company, upon which it is bounded by the deed of the demandant, then the two lots four and five would not meet,, as they should do by the plan, and as was clearly intended by the parties.

Guimby did not run or mark any lines upon the earth, but the plan represents the five lots as embracing all the land on the south of Cutts street, and as adjoining each other. And the division, which was intended to be made, cannot be carried into effect without giving to each lot its due proportion of the surplus. Tenant defaulted.

Shepley, C. J., and Tenney, Howard and Appleton, J. J., concurred.