Yeaton v. Yeaton , 36 Me. 248 ( 1853 )

Rice, J. —

The plaintiff, John Yeaton, is the owner of a part of original lot number 98, and the defendant, Richard Yeaton, has title in part of original lot number 101. These lots abut upon each other. The land in dispute is a strip sixteen rods in width, and is claimed by both of the parties, as being part of their respective lots.

In 1791, one Williams surveyed the lands in that neighborhood, belonging to the proprietors, including numbers 98 and 101, and made a plan thereof. By that plan, the land in dispute constitutes a part of lot No. 98.

December 14, 1795, Jones & Prescott surveyed and made a plan of the same lands. By their plan, the disputed land is a part of number 101.

Keuel Williams, a witness called by defendants, testified, that the plan of Williams was found to be very defective, and that Jones & Prescott were directed by the proprietary to make a new survey and plan, which they did in 1795, and which was then adopted by the company. Since that time the grants had always been made according to Jones & Prescott’s plan; Williams’' plan was then repudiated, and has not been known as a plan since, nor any grants made by it.

The defendant, Richard Yeaton, (the other defendants justifying under him) pleaded soil and freehold, and as evidence of title to the locus in quo, introduced a grant from the original proprietors to the heirs of William Bowdoin, the ancester of his grantor, dated March 6, 1800, which recites, that the proprietors, “ at a legal meeting, held at Boston, this third day of June, A. D. 1795, called and regulated according to law, have voted, granted and assigned to the heirs of William Bowdoin, Esq., and their heirs and assigns forever, the following lots of land situate, lying and being in Washington, so called, now Mt. Yernon and Belgrade, in the county of Kennebec, and Commonwealth of Massachusetts, being marked and numbered one hundred thirty-nine, one hundred eighteen and one hundred and one, containing two hundred acres each, and delineated on a plan of said township, made by John Jones and Jedediah Prescott, dated Dec. 14, 1795, reference thereto being had, will more fully appear, and agreeably to a vote of the proprietary passed the 19th day of June, 1797.”

The plaintiff showed no original grant of lot No. 98. At the time of the vote of June 3, 1795, by which No. 101 was granted to the heirs of Wm. Bowdoin, the survey and plan of Jones & Prescott had not been made, and the plaintiffs, therefore, contended that the lot which passed by that vote and the grant issued in 1800, extended only to the line indicated on the plan of Williams, which excluded from No. 101 the locus in quo. But upon this point the Judge instructed the jury, “ that though the grant of June 3, 1795, vested the title in the grantees, it was competent for the proprietary, subsequently, to extend the lot granted to the line of Jones & Prescott, and that by the vote of 1797, they had done so.”

The objection is, that by this ruling, the Court determined a fact which should have been referred to the jury.

To determine whether instructions are correct or otherwise, reference must always be had to the facts as they are then presented. The case finds, that there was no other evidence of what this vote in 1797 was, than what appeared in the record copies of this grant, and in the testimony of Mr. Williams. The original record of the vote passed in 1797, or a copy thereof, would have presented evidence of a higher and more satisfactory character. But this evidence of the vote was introduced without objection; it was uncontradicted, unexplained and uncontrolled by any other facts then before the Court. The evidence of the terms of the vote passed in 1797, being thus before the Court, it became proper for the Judge to instruct the jury as to the effect of that vote. Had there been any question as to what were in fact the terms of the vote in 1797, that question should have been settled by the jury as a matter of fact. But no such question appears to have been raised at the trial. In view of the case as then presented, we do not perceive, that there was any error in the instructions. The exceptions are therefore overruled.

Shepley, C. J.,and Appleton and Cutting, J. J., concurred.