Whittier v. McIntyre , 59 Me. 143 ( 1871 )

Tapley, J.

The attempted location of 1814 was void for uncertainty. No width of way was mentioned, and it may as well be assumed'to be two rods wide as four, and vice versa.

The location of 1832 established a way by metes and bounds and by courses and distances. It then became, for the first time, a legally established way, the bounds of which could be made certain by records or monuments.

The continued use of the way, and the repairing of it from time to time after this location, was a sufficient acceptance of it as thus located and defined.

The fences having existed, as found at the time of their removal, for a period of less than forty years after location in 1832, are not to be deemed the true bounds thereof, and the length of time they had thus existed will not justify their continuance thereon if within the limits of the location. R. S. c. 18, § 72.

The evidence is sufficient to justify the conclusion that the fence removed was within the location. Taking the whole testimony of the surveyor into consideration, with no evidence offered by plaintiff to contradict it, we think tliat it establishes at least a prima facie case. Had the fences been, in fact, without the limits of the location, this fact could have been made apparent by as careful and particular running as the plaintiff contends should have been made.

At present we have the testimony of the surveyor that he “ had no difficulty in satisfying himself where the location was,” and that several men were on the ground and pointed out or stated where the starting-point was. This, as before remarked, with no testimony concerning it offered by plaintiff, we think authorizes the conclusion that the surveyor did start at the right point.

No question is made as to the regularity of the proceedings in making the location anterior to the acceptance of the return.

It is suggested that inasmuch as the statute provides that such fences may be removed “ on indictment and conviction,” no other mode could be resorted to for their removal. Undoubtedly the fact of their illegal existence may be established conclusively upon the party by proceeding by indictment, and a removal afterward take place; but we do not understand that towns must first establish that fact by such a proceeding. It may be the safer way so to do, as in no event can they then be made liable for their removal. It is not, however, the fact that a conviction has been had upon such proceedings that gives the right of removal, but it is the fact they are illegally existing there. The record of conviction is only the evidence of that which gives the right.

The town had a right, under the location, to have the whole road unincumbered with such matter. The plaintiff had no right of possession within the lines of the location which could be inconsistent with this right of the town. The removal by the town, therefore, of these incumbrances violated no right of possession held by the plaintiff, and trespass, therefore, cannot be maintained against them, or their servants acting under their authority. Under the agreement of the parties, the entry must bo

Plaintiff nonsuit.

AppletoN, C. J.; CuttiNG, Keut, Bakrows, and DaNFOrth, JJ., concurred.