Woodward v. Robinson , 1878 Me. LEXIS 21 ( 1878 )

Barrows, J.

The plaintiff declares for a trespass upon his lot in Sidney, which he describes as part of lot No. 38 in the 4th range.

The defendant owned the corresponding lot in range 3, east of 38, and contended that his acts were done not upon any part of lot 38, but upon a gore of surplus land between ranges 3 and 4, where his lot and the plaintiff’s should have come together, but did not, and he introduced testimony tending to prove that there was a surplusage of land there. The plaintiff claimed that the line between the parties had been so long established by agreement as to become binding upon them; and the presiding judge gave instructions not excepted to as to what is necessary to establish a line between adjoining owners.

The exceptions state that “the only question in issue was the title to the premises where the trespass was alleged to have been committed.” The judge told the jury that “if the title is in the plaintiff he is entitled to recover, and if it is not in the plaintiff their verdict must be for the defendant; that if there was a line established by an agreement and established so long that it becomes binding upon the parties, then it is of no consequence about the lines claimed east or west of this; that if they found the line to be established by agreement where the plaintiff claimed it was, it being conceded that that was farther east than the place where the trees were cut, it would give the ease to the plaintiff; that if they did not find the line established by agreement, (then the next question was where the original line was; that if they found the line so as to include the location where the trees were cut within the lines of the plaintiff, and upon his land, their verdict must be for him.”

The defendant excepts to these instructions, claiming that the jury were thereby allowed to give the plaintiff a verdict for a trespass upon land not covered by plaintiff’s deed nor described in his writ.

We do not perceive that the defendant was injured by the instructions or that he can justly complain of them. A reference to the plaintiff’s declaration shows that his close was further described as being “one-half of all the land on the east side of the road formerly owned by Timothy Woodward, commencing at the north line next to land owned by Joseph JRobinson 2d, (defendant) and going south,” &c. Wherever the line was it seems to be conceded that the parties were coterminous proprietors. If the plaintiff did not own the land where the cutting was, the defendant was to prevail. It does not appear that the presiding judge had his attention called in any manner to the sufficiency or correctness of the description in the .writ. There is not enough in the case presented to enable us to say that the locus is not well described in the plaintiff’s writ.

If he had a valid title to the land or a possession rightful as against the defendant, it was sufficient to enable him to maintain this action. It mattered not whether the title was by deed or by long continued possession under an agreement establishing the line between his lot and that of the adjoining proprietor on the east.

If he or his predecesssors, by a valid agreement with the defendant or his predecessors, had included in his close more or less of the surplus land which the defendant supposes the former liberal system of admeasurements had left between ranges 3 and 4, and had held the possession long enough to give him a good title, it became to all legal and practical intents and purposes a part of lot 38, and the defendant cannot complain that it was so described. The trial seems to have proceeded upon an understanding, express or tacit, that either the plaintiff or defendant had a legal title to the locus. The line of the lot was the subject of the agreement if there was one. If the jury did not find the agreed line, then under the instructions they must have found that the place of the cutting was within the original line of the plaintiff’s lot, and for aught that appears here the original and agreed lines may have been coincident.

Exceptions overruled.

Appleton, C. J., Walton, Dickerson, Daneorth and Peters, JJ., concurred.