Kennebec Ferry Co. v. Bradstreet , 28 Me. 374 ( 1848 )

The opinion of the Court was drawn up by

Tenney J.

— The lands owned by the parties, lying on the western bank of Kennebec river, consisting of upland and flats adjoining, the north line of the demandants’ upland and flats being the south boundary of those of the tenant, were once the property of Henry Dearborn, who conveyed it to the tenant and another person by deed dated in 1803, and that deed was prior to the conveyance to which the demand-ants trace their title. The line between the tenant’s upland and flats, and the termination of the same at the north-east and south-east corners of his upland are not in controversy; and it appears from the plan, which is admitted to be correct, that it makes with the north line of the tenant’s upland an angle less than a right angle and less than it makes with his south line, and is longer than a line which may run in the shortest direction from the south-east corner of his upland to the north line thereof. After the description of the upland in the deed to the tenant, the flats are described as follows, “ together with all the flats and water privileges, adjoining to, being at and having the width of the easterly end of said land as bounded by the river aforesaid.”

The word end is defined to be the extreme point of a line or any thing that has moro length than breadth. Webster’s Die. The end of a parallelogram is the line extending from one side line to the other at. their extremities ; and the width of the end is the length of such line. If the line connecting the extreme points of parallel side lines, make an angle with one greater than that made with the other, as for instance, one being ten and the other one hundred and seventy degrees, it might not be proper to regard this line the width of the end of the figure presented or oven as the end itself. In figures having side lines irregular or not parallel with each other, a line connecting them where they terminate, may be the end, and its length the width of the end, or otherwise according to the peculiar shape of each figure. Hence the words end and width of the end, thus applied, are not terms of great precision, and the meaning of parties who may use them without any words in explanation may not always be apprehended with certainty.

All words used in the description of the premises in a deed, are presumed to be inserted from a belief in the parties, that they are material, and all must be so treated if possible; and nothing is to be considered redundant, if it can be avoided; and when the whole is taken together according to its common and ordinary signification, if it be free from ambiguity, and convey clear and distinct ideas to the mind, and if it can apply to the subject matter of the conveyance, it is not to be controlled by any thing not found in the deed. In such a case, it is not competent to consider, whether one party or the other, or both conducted with the greatest discretion and wisdom or not; and in giving a construction, the description must stand, although the grantor thereby may have made a division of his land, ruinous to the portion retained by him; or the grantee may have a title to that, which from its location .is worthless.

The description of the land in the deed to the tenant, embraces upland “ lying on the river,” and “ all the flats and water privileges, adjoining to, and being at the easterly end of 'the same.” Consequently the eastern boundary of the upland is the western boundary of the flats, and is identical with high water mark. The direction and termini of this boundary are agreed by the parties. The eastern boundary of the flats is low water mark, but the place of the extremities thereof on the •earth must depend upon the direction of the side linos of the ■.flats. Without the last clause in the description, it might perhaps be doubtful what was intended as the width of the easterly end of the upland, owing to its peculiar form. The flats ■■are to have the width of the easterly end of the upland, and then follows the clause “ as bounded by the river aforesaid” without being separated by any mark of punctuation. This •clause could not have been intended to indicate the eastern in contra-distinction from the western end of the upland, because ¡the words “easterly end” immediately precede, to, and at which easterly end, the flats are to adjoin and to be ; and the .flats could not by possibility adjoin the upland at any other place. Without the last clause every thing in the description is •clear, and no misapprehension could arise, excepting in reference to “ the width of the easterly end” of the upland; and ¡this clause can be applied to no other part with any effect whatever. By rules of grammatical construction, this clause is supposed to be an explanation of the clause immediately preceding, and by regarding it as so intended, it makes that clear, which would otherwise be obscure, as we have already seen. The ■words “ as bounded by the river aforesaid,” import in what manner the line is to be run in order to give the length of the Sine, which should be the measure of the flats. It is clear, that it was intended, that this line should bo looked at without reference to any other lino of the upland, or the shape of the upland, for the purpose of determining the breadth of the flats; but wholly as its length should be according to the course of the river; and this length was to be the width of the part between high and low water mark.

It follows geometrically, that this width can be had in no other manner than by extending upon the earth the side lines of the flats at right angles with the line of high water, between the north-east and south-east corners of the tenant’s upland. Parallel lines drawn in any other direction must necessarily reduce the breadth below that of the length of the measure, which is to be conclusive.

Another question arises under the exceptions, upon the exclusion of certain evidence offered by the demandants. That point was not relied upon at the argument, and when it is examined in connection with the whole case, the ruling was not objectionable.

By the agreement of parties, under this view of the law, a nonsuit must be entered.