Wiswell v. Marston , 54 Me. 270 ( 1866 )

Cutting, J.

The plaintiff, as administrator of his brother’s estate, under license from the Probate Court, conveyed to the defendant a lot of land situated westerly of, and adjoining his own lot. The material language of the deed is as follows : —

" Beginning at a stake and stones and southerly corner of Samuel AViswell’s land, on the northerly line of John Jame-son’s land, thence north 45° 25' west (formerly 45° N. W.) on said Wiswell’s and Hannah Rice’s line to a cedar stake and stones on the north side of a small brook on the southerly line of Jos. Doane’s land,” &c.

The plaintiff’s lot extended only to his westerly line, which continued northerly constituted the westerly boundary of Hannah Rice’s land. This line the jury have found to be the true divisional line of the two lots, and, if they were correctly instructed, their verdict should stand. If the deed to the defendant fixes a line further westerly, then there would be a strip of land intervening between the plaintiff’s lot and the lot conveyed, owned by neither party, but by the- heirs of the intestate. Waiving then, for the present, the construction of the descriptive portion of the deed, how can the plaintiff complain of the instructions ? They did not authorize the jury to infringe upon the plaintiff’s land by passing over his westerly line, but only that defendant’s lot was bounded easterly on the same line; that is, in the language of the instructions, "the defendant was bounded on the side in question by the line of Samuel Wiswell, (plaintiff,) and Hannah Rice’s land, commencing at the south-east corner of said Samuel’s land as said line was established by the original survey.” Thus it is presumed that the jury did commence at the south-east corner of the plaintiff’s land and run down on the line of his and Hannah Rice’s lot.

Neither party contends that the divisional line was not established by the original survey; and the location of that line upon the face of the earth, it was for the jury to determine. The controversy arose iu consequence of the plaintiff’s endeavor to ascertain and' define the line, ex parte, before his conveyance, and erecting temporary monuments which he supposed corresponded with it. Such conclusion necessarily results from the description in his deed to the defendant, the construction of which is next to be considered.

The place of starting is the most material point to be ascertained. The deed says: — "Beginning at a stake and stones and southerly corner of Samuel Wiswell’s (plaintiff’s) land, on the northerly line of John Jameson’s land.” Hence it is legally to be inferred that the stake and stones and southerly corner refer to the same starting point. If so, then no controvei’sy would have arisen, but, if. variant, then the question is, as to which is to control. The rule of law upon this poiut has been well settled in Pride v. Lunt, 19 Maine, 115, a leading case in our Reports. There it was decided that, — "where the commencement of a levy is described to be at a stake at the westerly corner of land set off to William Cobb, ánd that corner can be ascertained, parol evidence is inadmissible to prove that in fact the stake referred to stood at a different place.” And the Court remark, — "The conveyance in this case having declared that the land set off to Boyd does adjoin that set off to Cobb,, the parol evidence cannot be received to prove that it does not.” So in Moore v. Griffin, 22 Maine, 350.

Again; if the lino did not commence at the southerly corner, but at some other place, it could not run northwesterly "on said Wis well’s and Hannah Bice’s line,” which is a monument the whole distance, and only terminates " on the southerly line of Joseph Doane’s land,” that is, where his line meets the other line and thereby forms the northwesterly corner of the defendant’s lot. Whether the " cedar stake and stones on the southerly side of a small brook” is identical with the corner monument, and on the Wiswell and Bice line, is immaterial, for, as we have seen, the more permanent and consistent monuments must control.

That the Wiswell and Bice line was designed to be the true line is further inferable, (if any inference be necessary beyond the express language of the deed,) from the course by the compass : —"Thence north 45° 25' west, formerly 45° N. W.” How was the variation of the needle ascertained except by reference to the original running ?

That the occupation, unless adverse, of such a character, and for a sufficient period of time as to gain title by dis-seazin, could not control the express language of the deed, is clearly established by the authorities. Cleveland v. Flagg, 4 Cush., 76; Cowell v. Tucker, 9 Met., 150; and Crosby v. Parker, 4 Mass., 110.

In this case, the rulings were strictly in conformity with the law, and the verdict sustained not only the legal; but the equitable right of each party. They relieved the plaintiff of the fraudulent charge of pretending to sell and convey all of his brother’s lot adjoining his own, while at the same time he designed covertly to retaiji a part for himself.

Exceptions overruled.

WaltoN, Barrows, DaNforth and Tapley, JJ., concurred.