Proprietors of Kennebec Purchase v. Lowell , 2 Me. 149 ( 1822 )

Mellen C. J.

delivered the opinion of the Court as follows.

, The counsel for the tenant relies cfn two objections to the verdict.

1. That the description of the premises was too loose and un? certain; depending on, and referring to a plan of a private nature, and which was improperly admitted in evidence in aid and explanation of the description. . • .

2. That the opinion and instruction of the Judge, to the jury as to the conclusiveness of Ballard's line was incorrect.

. As to tire first point. — It may be a qüestion whether the plan was a necessary piece of evidence'; and if not necessary, its admission, whether proper or not, would be no ground for a new trial. — The more correct and usual mode of taking advantage of the alleged uncertainty would seem to be either by demurrer or motion in arrest of judgment. Ward v. Harris, 2 Bos. & Pul. 265. 1 East. 441. 8 East. 357. But the tenant has pleaded the general issue and thereby admitted himself in-possession of the premises demanded, whatever and wherever they are situate, and put the title only in issue. Higly v. Price, 5 Mass 344. Brown v. Killeran, 4 Mass. 443. Pray v. Pierce, 7 Mass. 381. Several of the cases cited by the demandant’s counsel establish the principle that the demandant must cause his writ of possession to be executed at bis peril. If he should take possession of lands not recovered by the judgment, he would be a trespasser. If he can find no land answering the description in the writ, judgment, and habere facias, he cannot cause the precept to be executed with any safety; and of course the tenant in the action can never be distux-bed or injured by the judgment.

The cases touching the question of certainty, in declarations in the description of premises demanded, and property taken- away or injured, arc somewhat confused an¿ contradictory. In Rex v. Horne, Cowp. 682. Ld. C. J. De Grey says ;— “ we have no precise idea of the signification, of the word-“ cer- “ lainty,” which is as indefinite in itself as- any word that can “ be used.” In Ward v. Harris, 2 Bos. & Pul. 265, the plaintiff declared upon the sale of a certain house for a certain quantity of certain oil to be delivered to the defendant within a certain time. — Even this loose declaration was holden good after verdict, on motion in arrest of judgment. In Doe v. Plowman, 1 East. 441, the plaintiff in ejectment demanded two dwelling-houses and two tenements. — After verdict for the plaintiff judgment was arrested. In Doe v. Denton, 1 D. & E. 11, ejectment for a messuage and tenement was held good after verdict.. Coltingham v. King, 1 Burr. 621. Lord Mansfield says, “ The objection is the uncertainty of the claim or description of “ the premises. — It is after vei’dict; — the title has been tided by “ jury; — evidence has been- given to them on which they have “ found for the plaintiff.” The description was much more general than in the present case. The judgment was unanimously affxi’med the Court observing that after verdict, the description must be intended to be sufficient. See the sevei’ai cases cited in. the note to Doe v. Plowman, 1 East. 441, agi-ecing with, and opposing.the case in 1 Burr. 621. The description in the pi’esent case is at least as certain as that cited from lmpcfs Practice. That was “ a certain messuage demised by J. S. to J. DP who must have been either the demandant himself, or a stranger; and in either case, there was no reference to any public record or document for the tenant’s information ; though it might be a guide to the sheriff in executing the writ of possession. But if a reference to Wiggin's plan, for the number, size and situation of the lot, be necessary to render the description sufficient, of what importance can it be whether the plan has been accepted by the proprietors, or placed on their records, or on any other record ? Nothing is more common than in real' actions to demand land by no other description than as a lot of a certain number on a certain plan. As, for instance, M'Keck'nie’s pjan, Winslow’s plan, or Jones' plan. This has always been deemed sufficient; and yet it never appeared on the face of the declaration whether the plan was accepted and recorded, or not. The description of the premises demanded in this action was intelligible to the tenant; his plea admits him to be in possession of lot No. 121, on Wiggin's plan, containing 107 acres. The parties, therefore, agree as to the lot of land demanded, and only differ upon the question of title. As to the admission of the plan in evidence to the jury, we perceive no incorrectness in the decision of the Judge. The report states that the plan offered was Wiggin's plan; and that it'was proved that Wiggin, in making his survey, fronted his lots upon the Ballard line; which is one of the boundary lines of one part of the tract which the demandants own. The plan and the survey thus taken in connection, must both be considered as made by him and for their use.

It is therefore sufficiently shewn to be thi demandants’ plan; and seems to be legal proof as much as any of their plans which have been formally accepted. In this action they claim an interest in it, and rights under it, and thereby sanction it. We therefore are of opinion that the tenant has failed in maintaining hisjfo’si objection.

As to the second point, the conclusiveness of Ballard's line, it may be observed that in the year 1795, when it was run, no persons had any interest in the lands, but the Plymouth Company on one side, and the Commonwealth on the other. The line was pot completed, on account of the violence he met with from the settlers, and the loss of most of his papers. But he informed the government of the.progress he had made. In 1806;2Wnef was employed to complete the - survey, if on examination, he found BallardPs line correct. He'did examine.it, and so find it; and began to extend his own line fropi it southerly, as the easterly line of .the patent. According to the line thus run by Ballard and continued by Turner, the land demanded is within the company’s'claim. We hear of no objection to this line on the part of the Commonwealth ; and the -proprietors, who are the demandants in this action, are satisfied with it, and claim according to it. -Here is evidence of an acquiescence in the line ás the true one, and even of its sanction by the parties in interest at the time. The deed from the Commonwealth’s com»mittee bounds the academy land, on one side, -on the Plymouth-claim, and this-deed was given years after Ballard^s line was-run, which the .Commonwealth afterwards recognized, in the manner above -mentioned, as "the .true boundary line of that claim; The cases cited from Johnsonh reports by the demand-ants’ counsel to shew the. effect of lines thus -established, and their conclusivenessj-’are strong and direct. . -

On the whole, when we view all the. facts in the case before us, and the manner in which the line in dispute wras run and established by two different surveyors, we have' no hesitation in Saying that upon -these facts in the case, as reported by the Judge, the line must be considered so established as to be con«elusive. We are satisfied with the opinion of the Judge who tried -.the cause, with respect to thi's question, and perceive -nc1’reason for setting aside the verdict and granting a new trial.— ■ Accordingly there must be . :

Judgment m (he verdict„