Brown v. Gay , 3 Me. 126 ( 1824 )

Weston J.

The tenant is the owner of lot numbered three., according to Búllenos plan, and the demandant, by a subsequent deed, of lot numbered four, according to the same plan. Averdict has been returned for the demandant, for a portion of the demanded premises, as constituting a part of number four ; and one of the questions raised between the parties is, whether, upon this point, the verdict is justified by the evidence. The plan was made in pursuance of an actual survey ; and trees were marked as the corner bounds of the several lots. The lots were designed to be each one hundred rods in width ; and they are thus, represented on the plan. The monuments, originally marked and established by the surveyor, between numbers two and three, and between numbers four and live, were proved to be still existing ; but the monument between three and four could not be found ; nor could the place where it stood be ascertained. The space between two and five, instead of being two hundred rods, as by the plan it should be, is found to be only one hundred and seventy-six rods and fourteen links. The surveyor testifies that there must have been a mistake in the survey of one of the lots, but that it is impossible for him to ascertain in which.

Upon these facts, the counsel for the tenant contends, that the burthen of proof is upon the demandant, before he can restrict the owner of number three to less than one hundred rods, to shew that, by the original location, his lot was thus restricted. The same position might, with equal propriety, have been taken by the owner of number four, if he had been in possession, to the extent of one hundred rods in width, and the owner of number three had brought his action to recover part of it. The rights of the parties do not depend upon their respective possessions ; but upon a sound construction of the deeds and of the plan, which forms a part of them. The original locations by the surveyor, as far as they can be found, are to be sustained ; and if any variance appears to exist between them and the plan, the locations actually made control the plan. Applying these principles to the facts, it appears that the distance between two and five must be limited to one hundred and seventy-six rods and fourteen links. It being impossible now to fix the bounds between numbers three and four, as originally made by the surveyor, the plan remains as the only guide, by which the division can he ascertained. By the plan it appears, that the space between two and five, is exactly-divided between three and four ; and there being nothing to control the plan, this space must therefore be equally apportioned to the owmei'K of three and four, in conformity with the verdict.

The same rule would have prevailed, if the distance between the monuments fixed, had been found to exceed that which is represented on the plan ; a case of much more frequent occur-fence. In the case before us, it would not accord with the plan to give to number three, because it precedes four in the series, a width of one hundred rods, throwing the deficiency altogether upon number four. So, if the distance had been three hundred rods, it would have accorded as little with the plan, to have restricted number three to one hundred rods, and to have given to number four the whole excess. The sapie principle of apportionment would equally apply, where an excess or deficiency was found to exist, in the estimated distance, between fixed monuments, divided into any given number of lots ; where a plan is the only guide, by which to determine their location. For instance, if the distance between two rivers or streams, at a certain point, and in a certain direction, be assumed to be one thousand rods ; and the whole be divided into ten lots, of one hundred rods each in width, and thus delineated, without any actual survey, on a plan, numbered from one to ten inclusive ; and the lots be sold severally, referring to such plan ; if the distance between the two rivers or streams be actually found, upon the face of the earth, to be fifteen hundred rods, the rule of apportionment requires that, the whole space being regarded as consisting of one thousand parts, one hundred should be assigned to each lot. The fact that each of these parts proves to be a rod and an half, instead of one rod, in length, as represented on the plan, has no tendency to vary the principle. The plan in the case supposed, by which alone the location can be made, extends the ten lots over the whole space, and gives to each lot an equal proportion'.

It is further contended that, as to the premises, for which a verdict has been returned for the demandant, he has made out by the evidence no title thereto ; inasmuch as his .grantor, as it is insisted, at the time of the execution of the deed by him, was disseised of this part of the land by the tenant, and that therefore nothing passed by the deed. The tenant has no title to any part of number four, nor does he pretend to have any. He is the owner .of number three ; and he claims and defends the premises in dispute, as a part of that lot. If they are no. part of that lot, his claim is plainly founded in mistake. If the owner of a parcel of land, through inadvertency or ignorance of the dividing line, includes a part of an adjoining tract within his enclosure, this does not operate a disseisin, so as to prevent the true owner from conveying and passing the same by deed.

It appearing to the Court that the jury were properly instructed by the presiding Judge, upon both the points made, there must be judgment on the verdict.