Cate v. Thayer , 3 Me. 71 ( 1824 )

Mellen C. J.

delivered the opinion of the Court as follows.

It appears that long before the town of Dresden was incorporated, Dr. Gardiner’s farm or tract of land had been run out and located; but the division line between Alna and Dresden had never been agreed upon; but, on the contrary, the towns have been constantly disputing respecting its true position. By the terms of the act incorporating Dresden, it seems very clear that the legislature intended that the Gardiner farm or land should all be included in that town; — and it seems also from the language of the act that they must have supposed and believed that a line running north-north-east from the bridge to the north line of the town would include it. It now appears,'however, that it will not; but that such a line leaves the demanded premises in Aina. What then is the construction to be given to the grant to Dr. Gardiner ? The first directory is the manifest intention of the legislature, that the Gardiner farm should be included in Dresden. The second is that rule of construction which requires that what is more certain should prevail over that which is less certain, where there is any disagreement between different descriptive expressions employed in a deed; — or, to use more simple language,— that where the length or course of a descriptive line will not agree with a known and fixed monument which is named in the deed, then the inaccuracy of the line must give way to the certainty and truth of the monument. This is a perfectly familiar principle of construction, applicable in all cases, excepting, perhaps, those wherein the disagreement or contradiction is unusual and extravagant. It is needless to cite authorities in support of this position. We do not see why this rule of construction is not applicable in the case before us. Both parts of the descriptive character of the line from the bridge to. the north line of the town cannot be true, because they are at variance. The given course of the line does not include the whole of the Gardiner farm or land, but only a part of it. In the present case the Gardiner farm or land is a known and immoveable monument. And as the course of the line varies from this monument, it must, so far as it varies from it, give place to the monument; in the same manner as though the line from the bridge had been stated to run a course north-north-east by the margin of a certain river, to the north line of the town. In such a case, if there be a variance either way, the course of the line must give place to the course of the river, as the more certain description; — but there could be no mistake as to the margin of the river. In the case at bar, instead of the words “ including the whole farm,” &c. we must read — “or so as to include the whole farm,” &c. There is no other mode of effectuating the intentions of the legislature, and of preserving a consistent course of construction. It is our opinion that the action cannot be maintained. The plaintiff must be called, according to the agreement of the parties.