Inhabitants of Wesley v. Sargent , 38 Me. 315 ( 1854 )

Shepley, C. J.

— The town of Wesley was incorporated by an Act approved on January 24, 1833, with a northerly bound “beginning on the east line of township No. 31, in the middle division, at a point two miles north from the north line of township No. 25, in the east division, thence running eastwardly parallel to said north line to the town of Crawford;” and these connected with other bounds include township No. 25, in the east division.

Rufus Putnam by virtue of an Act of the Legislature of Massachusetts, passed in the year 1786, made and returned surveys and plans of those divisions and of the townships included in them. The lines forming the exterior bounds of those divisions, appear to have been run and marked; while the range and check lines of the several townships included in the eastern division, do not appear to have been. The line between the two. divisions, being an exterior line, appears to have been run, and the corner bounds of the several townships adjoining it appear to have been ascertained and stated by Putnam from actual admeasurement. The length of the westerly line of township No. 25, is by him stated to be six miles and thirty-four rods. By extending that line northerly to the line run by Jones for the north line of that towd ship, its length would be Increased more than a mile, if the south line of the township be correctly 'exhibited on the plan taken in this case; and there is no satisfactory proof that it is not.

The west line of township No. 25, is by Putnam’s survey and plan stated to be four miles and one hundred and forty rods on township No. 25, and one mile and two hundred and fourteen rods on township No 31, middle division. If the lines run by Jones were esteemed to be correct, township No. 25, east division, would be bounded on township No. 31, middle division, more than three miles, instead of •one mile and two hundred and fourteen rods, as stated by Putnam, So, if Jones’ line were regarded as correct, the west line of township No. 26, north of township No. 25, would be but seven miles and eighty-four rods instead of •eight miles and one hundred and six rods, as it should be by Putnam’s survey, assuming the north line of township No. 26, to be correctly exhibited by the plan taken in this ease; and there is no testimony to prove that it is not.

As the westerly lines of the townships included in the eastern division, and adjoining the line dividing that from the middle division, were run by Dodge in the autumn of the year 1833, from an ancient monument at the north-west •corner of township No. 23, to an ancient monument at the north-west corner of township No. 27, each township upon that line was found to have its measure nearly according to Putnam’s survey.

The line run by Jones for the north line of township No. 25, according to Putnam’s plan, would correspond with the south line of Crawford, but there is nothing to determine the distance between those two lines, except the space between them on the plan, while on the line between the two divisions the bounds of the townships adjoining that line, appear to have been determined by actual admeasurements, and by references to their corners as thus ascertained. These are of more certainty and of much greater importance than the space between the south line of Crawford and the north line of township No. 25. The less certain and important must yield to that which is more, when all cannot be correct.

There can therefore, be no sufficient authority for adopting the line run by Jones as the true northerly line of township No. 25, according to the survey and plan of Putnam.

It is however contended, that it must be regarded as the true north line, because it was the first line run upon the earth, and marked by monuments by authority derived from the agent of the owners of the land. The letter from their agent, Black, of July 8, 1828, states it “will be well by running some town lines to ascertain the precise situation of the settlement.” “Having determined the township lines and ascertained the position of the great meadow ridge settlement, you will please to lay out some lots for the accommodation of settlers on the ridge, and likewise on the road laid out towards Machias.”

The power conferred upon Jones was that of ascertaining the lines of the townships, not that of making them anew or altering them. When the letter speaks of “ having determined” them, no more was meant than having ascertained or determined where they had before been established. If the north line of township No. 25, had not before been established upon the earth by marked monuments, it had been by Putnam’s plan and admeasurements and by references and measured distances from the corners of other townships in the middle division. Jones does not appear to have been employed for the purpose of running and establishing the line of any township or marking its position on the earth, but only to ascertain their true position as already established, to aid him in the accomplishment of another purpose. If he was misled by the position of the south line of Crawford, and therefore regarded the north line of township No. 25, as being further north than' it really was, the owners cannot be bound by that erroneous survey. When Dodge run upon it subsequently in 1834 or 5, and set monuments, he appears to have done so upon the assumption, that it had been correctly run. But when on coming to the line between the two divisions he became satisfied that it had not been, he abandoned it and proceeded to run the line from the monuments placed by him in 1833, for the north-west corner. The line therefore can have no effectual aid from the survey of Dodge.

It is further insisted, that the line run by Jones being the only one designated upon the earth as the north line, when the town of Wesley was incorporated, the Act of incorporation must have had reference to that line; and that it would thereby become established.

That Act refers to the townships in the middle and eastern divisions, and to them by their numbers. Those divisions and numbers existed only by the survey and plan of Putnam. Without a reference to them they could not be found. And when in the Act of incorporation, reference is made to the “ north line of township 25, in the east division,” it is obviously to the true north line; not to any particular line which had been run, and regarded by certain persons as the true line. The reference is not to the north line as run by Jones, or as established in a particular manner, but to the true north line.

The fact that Jones transmitted to Black a copy of his survey, and that no objection to it was made for five or six years, can have no material effect; for he appears to have supposed, that it might be correct, until the error became known by the survey of Dodge.

The conclusion is, that the line run by Jones, partly across from east to west, for the north line of township No. 25, was not the true north line; that it was not run by him by authority of the owners, for the purpose of having that line established; that it has not been recognized by the owners as the true north line, with a knowledge of all the facts; that the Act incorporating the town of Wesley had reference to the true north line,, and that it did not establish the line run by Jones as the north line.

Plaintiffs nonsuit¡

Tenney, Howard, Appleton and Hathaway, J. J., concurred.

After the promulgation of this opinion, the plaintiffs objected to the allowance of the entire costs of the survey, in the taxation of the bill of costs before the presiding Judge-at Nisi Prius. There was a docket entry, when the surveyor was appointed, that the expense should be finally determined by the Court. It was objected that the survey was made upon the motion of defendants, and at their pleasure, and against the wishes of plaintiffs, and that it did not necessarily follow, that because a party recovered costs,, that he recovered all; and that this item should be apportioned ; but Cutting, J., presiding, ordered that the whole-expense of the survey, $123,75, should be borne by plaintiffs. To which order exceptions were taken and allowed.

At the next law term, after argument of the question-raised, the exceptions were overruled.