Robinson v. White , 42 Me. 209 ( 1856 )

Goodenow, J.,

gave the following dissenting opinion : —

This is an action of trespass quare clausum. The verdict was for the plaintiff. The case comes before us upon exceptions. It is admitted, that if the plaintiff has no title, the defendant has a title to the locus in quo.

The plaintiff claims under a warranty deed from Benj. Joy to Stephen Robinson, dated June 27, 1823.

The description of the premises conveyed, is as follows : “A certain parcel of land in Belmont, being lot No. 80, according to survey and plan of Noah Prescott, made for Benjamin Joy in 1822 and 1823, and bounded as follows, viz : Beginning at the southwest comer of Jacob Dolliff’s lot, at a birch tree; thence south eighty-four degrees east one hundred and fifty-six rods to the pond to a stake and stones; thence southerly on said pond about eighty rods to a stake and stones at the southeast corner of said lot; thence south eighty degrees west eighty-two rods to the road; thence north twenty degrees west on said road thirty-two rods to a stake and stones; thence south eighty degrees west eighty rods to a beech tree; thence north ten degrees east on the west line of lot eighty-eight rods to the place of beginning; containing seventy-five acres, more or less, as surveyed by said Prescott.”

The probability is, that all that part of the premises which occasions the present controversy, was formerly a part of the pond, as so denominated in common parlance. It might have been considered worthless.

The stake and stones named as the second monument in Joy’s deed, cannot be found. The course and distance from the birch tree, at the beginning, indicate the point where that second monument stood; and it was, unquestionably, on the margin of the bog or low land, or pond, as it was probably called when the water was high. It cannot be reasonably supposed that Prescott made a mistake of ninety-six rods in the admeasurement of that line, or that the grantor intended, or that the grantee expected, that it was to be thus extended by implication. There is great precision^ in the description, which seems to silence implication. The black lines on Prescott’s survey, reach to the low lands or bog, and no further. The second course of said deed runs southerly on said pond about eighty rods to a stake and stones. The first course extended ninety-six rods beyond the one hundred and fifty-six rods named in the deed, would not touch the present pond. The second course from the point claimed by the plaintiff could not, therefore, run the first ten rods on what the plaintiff claims to be the pond intended. If it aims for the high land southerly and directly, it will not touch the plaintiff’s pond; if otherwise, it will run only ten rods to the pond, and then much less than eighty rods on the pond, before it hits the other extended dotted line. This position conflicts with other parts of the deed continually. The plaintiff’s title does not cover the locus in quo, in my opinion. It is limited to the margin of the bog or low land, about one hundred and fifty-six rods from the beginning, or birch tree. It is a question of fact for the jury, from all the evidence in the case, the deed, the plans, the state of the water, &c., &c., to find the place where the first line terminated.

The instructions of the presiding Justice were therefore erroneous, and led the jury to a wrong conclusion, or did not permit them to reach a right conclusion, or to give due effect to all the evidence.