Proprietors of Machias v. Whitney , 16 Me. 343 ( 1839 )

The opinion of the Court was drawn up by

Shepley J.

From the report and documents referred to, it appears that a tract of land was granted by the General Court of the Province of Massachusetts Bay, to Jones and others, in 1770, described as commencing at a certain rock and extending by courses and distances from it, so as to be ten miles in length by eight miles in breadth. The grantees made a survey and returned a plan as required. By a certificate upon the plan it appeared, that the oath was administered to the surveyor and his chainmen by one of the grantees. The survey was also noted upon it, stating the courses and distances according to the grant and naming certain trees as the corner bounds, which were marked as monuments of the tract of land, thus bounded and separated from the ungranted land.

The close demanded is within the limits of this tract, as designated by the monuments and location upon the earth, but not within the limits of the grant, if the grantees are to be restrained to the exact measure. The plan was returned with these monuments noted upon it, and was accepted by the Provincial legislature in 1771.

The objection taken at the trial to the want of evidence of notice to the proprietors, of the time and place of their first meeting, has not been insisted upon in the argument. The acceptance of the plan, with a full knowledge of the manner in which the survey was made, was binding upon the grantors, and they could not afterward object, that the oath was administered by one of the grantees.

The principal question is, whether the grantees acquired a title according to the actual location, or are to be restrained to the exact distances stated in the grant.

The argument for the defendant is, that the grantees are to be limited by the distances named: — 1. Because no monuments are named in the grant; — 2. The grant and location passed no title, and the act of confirmation was in the language of the original grant, not confirming the actual location ;■ — 3. The ruling of the presiding Judge respecting the alleged fraudulent survey and location was erroneous.

When no monuments are named in a grant, and none are intended to be afterward designated as evidence of the extent of it, the distances stated must govern. But when the legislature grants and requires by the terms of the grant an actual survey to bo made, so that the land granted may be designated upon the earth and separated from the ungranted land ; and that the survey and plan should be exhibited before the title passes to the grantee, there is a clear indication of an intention, that the extent of the grant should be determined by the actual location. And this would be necessary to enable the legislature with safety to itself or to its grantees to make grants and locations of the adjoining lands. The location of such a grant and the designation of monuments, fairly made according to the practice of the times, and accepted by the grantors, must be regarded as binding upon the parties. And the like rules as between individuals would apply to any difference between the plan and the lines and monuments designated upon the earth. The grantees would hold according to the bounds of the actual location. Esmond v. Tarbox, 7 Greenl. 61.

It is true, that without the act of confirmation the grantees would not have acquired a title. There is a recital in that act as follows; “ a plan of which tract, setting forth the extent and boundaries thereof, was in July, 1771, presented to, received, and accepted by the said courtthen follows the confirmation of the grant as originally made without requiring any new survey or location. There can be no reasonable doubt of the intention of the legislature, that the 'proprietors should hold according to the plan and boundaries thus recited, unless some unknown fraud had been practiced in making them.

The only evidence reported as indicative of fraud in the survey is, that the distances from monument to monument exceed the distances named in the grant by about half a mile. Where the presiding Judge speaks of the admeasurement “ being in accordance with the large and liberal measure of that early day,” it is reasonable to conclude, that he does so having reference to the evidence in the cause, although it is not reported. But if he is to be regarded as alluding to it as a matter of experience and history in our judicial tribunals and as well known to the jury, bringing it to their consideration as explanatory of the differences in distance, there is little reason to believe, that it was the occasion of injustice to any one. If the remark of the Judge, that under such circumstances, the excess in the distances “ was no evidence of fraud,” is to be regarded as withdrawing the question of fraud from the consideration of the jury, it was erroneous; it being their province to decide under what circumstances and with what intention the survey was made occasioning such differences.

But the experience of the Courts has shown, that excess of ad-measurement is so uniformly indicated in surveys of that early period, that the Court is not prepared to say, that the excess, which was proved in this case, was evidence, which would warrant the jury in drawing an inference of fraud.

It does not appear in this case that the defendant was not an entire stranger to the title and without any right to impeach it. But supposing ¡him to stand in such relation, as is alleged in the argument, does he appear to have any just cause of complaint that injustice has been done ? The grantors have acquiesced in the location for more than fifty years without complaining of any fraud. Nor is there now any evidence of any such allegation on their part. With this, taking into consideration the terms of the act of confirmation, and the known customs of that period in making surveys, and the verdict cannot be regarded as unjust or improper. The merits, so far as they have been exhibited, appear to have been rightly decided. If the defendant has just cause of complaint that he has not had a full hearing upon the facts, there is a proper channel for redress open to him.

Judgment on the verdict.