Haynes v. Young , 36 Me. 557 ( 1853 )

Tenney, J. —

It is not denied, that the existence of a public road over a part of the land described in the deed from the defendant to the plaintiff, dated November 21, 1840, constitutes an incumbrance, for which the former is liable. Such a road is an easement, and amounts to a breach of the general covenants of warranty, like those contained in this deed. Harlow v. Thomas, 16 Pick. 66.

But the principal question involved in the case is, whether the description of the land in the deed containing the covenants alleged to have been broken, embraces the parcel conveyed to Benjamin Warren, by deed of Simeon Haynes, on February 28, 1811. This deed, it is admitted, was recorded at its date. Prior thereto, Simeon Haynes was the owner of lot No. 170, according to the plan. This lot was then bounded on the west the whole distance by the land, then and now owned by said Warren. By that deed Warren took a rectangular piece of land and part of lot No. 170, from the southwest corner thereof, containing three acres, and bounded on the west by the east line of land, which was previously owned by him, for the distance of 22 rods and 21i links. If, by a legal construction of the deed from the defendant to the plaintiff, this parcel of three acres is included, that portion having been previously conveyed, did not pass by the deed, and there is a breach of the covenant; if, on the other hand, it is not embraced in the description, no breach of the covenant has taken place on that account.

The first clause in the description is lot No. 170, according to the survey and plan of Andrew Strong and Robert Houston. If this were the only description, the whole of lot No. 170, would fall within it. But the land is afterwards more specifically described by monuments, courses and distances. When this is done, the definite boundaries may limit the generality of a term previously used. Allen v. Littlefield, 7 Greenl. 220; Allen v. Allen, 14 Maine, 387. According to this rule, if the particular boundaries restrict the premises to-a quantity less than the entire lot, and do not include the parcel described in the deed from Simeon Haynes to Warren, this ground of action fails.

The north-west, north-east and south-east corners of the land described in the deed to the plaintiff, together with the north and east lines thereof, are in every respect free from controversy.

It.is a rule well settled, that monuments will control courses and distances. By the application of this ruie, the result is very clear. The south-west corner of the premises is the south-east angle of Benjamin Warren’s land. This angle of Warren’s land must be determined by the facts existing at the time the deed was given, and not by those, which had long before "passed away j and it is only at the south-east eorner of the land conveyed by Simeon Haynes to Warren, that this call in the deed can be answered. 'The course from this monument is represented to be “north,”' though upon the defendant’s construction a part of the line will be west. But this line is described in such a manner, that it is to be regarded as a monument. There is no dispute as to the location of the eastern boundary of Warren’s land, as it was at the date of the deed to the plaintiff. The western boundary of the land described in this deed, is north, “ by Warren’s land.” The course represented as “ north” must yield to the line, well defined, as a monument.

According to the agreement of the parties, a default is to * be entered, and damages to be assessed by the Judge who presided at the trial, for the injury for a. breach of the covenant on account of the road only.

Shepley, C. J., and Rice, Appleton and Hathaway, J. J., concurred.