Mosher v. Berry , 30 Me. 83 ( 1849 )

Howard, J.

— To test the correctness of the instructions, it is important to consider the respective claims of the parties, as stated in the exceptions. They owned adjoining tracts of land, and their titles originated from the same source, and at the same time, (Dec. 18, 1818.) The case arose, and was contested, upon the position of the dividing line between these lands. This would bo the north line of the demandant’s, and the south line of the tenant’s land. In the deed from Goodwin & als. to those under whom the demandant claims, his south and north lines are described as parallel with the north line of the fifteen mile lot, A 1. The former as being one hundred and twenty-eight rods, and the latter sixty-two rods distant from it. In the deed from Goodwin & als. to the tenant, of the same date, his south and north lines are described as parallel with the same north line of the fifteen mile lot A 1, and distant from it sixty-two rods, and thirty-two rods, respectively.

The jury were instructed, “ that they might ascertain from the testimony, where the true north line of the great lot, A 1, was established ; and that the northerly line of the demandant’s land, in the absence of any monuments establishing if, would be found parallel, and distant sixty-two rods from it, in a southerly direction, if this were not prevented by other considerations. That they would notice the time when the admeasurements were made, and from that, and the other testimony, would consider whether large measure was made. That if they were satisfied, that the southerly line of the demandant’s land was established, and that there was in fact a greater number of rods between that line and the north line of great lot, A I, than were named in the conveyances, the overplus should be divided between the three lots lying between them, in proportion to the width of those lots respectively.”

It is a general rule, in the absence of monuments, that the distances, named in a conveyance, will govern in ascertaining the location of the land. But this rule is subject to qualifications, and is not always inflexible. Where the lines were actually run at-the time of the conveyance, though boundaries were neither named nor fixed, and the parties soon afterwards established monuments, intending to conform to the location; or where they immediately take possession and occupy with such intention, openly, uninterruptedly and exclusively for more than twenty years in succession, such monuments, or occupancy, would govern the extent of the location, although not coinciding with the distances named in the deed. Under such circumstances it would be competent to prove that, in the location, large measure was in fact actually made; or that the location was made in conformity with an established custom and usage, existing at the time, of giving a particular measure, in locating the territory under consideration.

So if conveyances of land, between certain boundaries, are made to grantees in severalty, by distances, and in different proportions, but covering the whole extent, without intermediate monuments, and without other means of ascertaining the location, and the distances do not correspond with those named in the deeds, they will hold in proportion to their respective grants, whether there be an excess or deficiency in the distance. Davis v. Rainsford, 17 Mass. 210; Bancroft v. Makepeace, 12 Mass. 469; Wyatt v. Savage, 11 Maine, 429; Loring v. Norton, 8 Maine, 61; Emerson v. Tarbox, 9 Maine, 42; Moody v. Nichols, 16 Maine, 25; Rust v. Boston Mill Corporation, 6 Pick. 158; Proprietors of Kennebec Purchase v. Tiffany, 1 Maine, 219; Brown v. Gay, 3 Maine, 126; Clark v. Wethy, 19 Wend. 320.

These doctrines were embraced in the instructions, and the presiding Judge correctly stated principles, leaving the application of the testimony to the jury. The exceptions do not purport to state all the evidence introduced at the trial, and we cannot say that, in stating such principles, the jury were misled, on the ground that the evidence did not require or admit of their application. But as the case has been exhibited to us, the verdict appears to have been in accordance with the proof, and with the merits.

Exceptions overruled.