Citation Numbers: 19 Me. 195
Judges: Shepley
Filed Date: 4/15/1841
Status: Precedential
Modified Date: 9/24/2021
It becomes necessary to determine what effect the conclusion of the report is to have upon the consideration of the case. Is the nonsuit to be set aside if “ the court should decide, that the plaintiff could maintain his action on this evidence, or was entitled to have the testimony submitted to the consideration of a jury either upon the point of disseizin or titlef’ Testimony had been introduced by each party, and it must have been well understood, that the plaintiff was entitled to have it submitted to the consideration of a jury. The report states, and no complaint is made, that it does not correctly state, that “ by consent the plaintiff became nonsuit.” He could not have intended to reserve his full right to have a decision by the jury after having voluntarily become nonsuit. The two propositions, that “ by consent the plaintiff became nonsuit,” and that he is “ entitled to have the testimony submitted to the consideration of a jury,” are inconsistent.' To -give full effect to one would be to destroy the other. Unless effect is to be given to that, which states, that the nonsuit was entered by consent, the merits cannot be examined or decided by the court; and the effect of saving the case and of hearing an argument will be only to restore it, after the testimony shall have been introduced again, to the same position, as when the nonsuit was entered. The concluding clause of the report must therefore be disregarded, or so limited, as to consider it as restating the plaintiff’s right to a new trial, if the jury might properly find a verdict in his favor.
The plaintiff contends that the premises demanded are within the bounds of the mill privilege. The defendant denies it, and contends, that they are within the bounds of the Purington lot. The bounds of the mill privilege • are not defined or proved, but it is admitted, that it adjoined the Purington lot on the north. The rights of the parties must therefore, irrespective of the point arising out of an alleged disseizin, depend upon the bounds of the Purington lot. It was pur
David Boyd states, that “ the blacksmith shop stood in the corner of the Wells and Sanford road.” Nathaniel Hobbs says, that it stood at the corner of the Wells road and nearer the corner than the Hubbard store, that it had been down about forty years, that it stood a little further south than Hubbard’s store, a few feet more south, more parallel with Wells road than the store, he could not say exactly where it was. Elijah Neal says, it stood about a foot west of Hubbard’s store and two or three feet nearer Wells road, Morrill’s store stood between Hubbard’s store and Wells road, the Morrill store stood thirty or forty years. These witnesses were introduced by the demandant. IJuldah Yarney, introduced by the tenant, says, the blacksmith shop was on the Wells road. It seemed to be assumed a.t the argument, that the first line of boundary extended from the corner of the bam southerly to the Wells road. But it extends only snug to the smith shop, which according to the testimony would intervene between the southerly end of the lino and the Wells road. And the shop does not appear to have adjoined the Wells road. It is true, that after passing the shop eastward the lot was bounded on the Wells road; but the length of the eastern line of the lot, from the Wells road to the northeast corner of the bam, is not stated in the deed. So that there is no evidence derived from the title deed of the exact distance from the north line of the lot to the Wells road. The live rods appear to have been named as the distance from the corner of the barn to the northerly side or end of the smith shop. What were the dimensions of that shop, and how many feet it stood from the Wells road, does not appear. In the deed from Purington to Hobbs in 1815,
The northern line of the Purington lot must remain and be established where the barn stood, if its position at the time of the conveyance can be clearly ascertained ; and by it the rights of the parties must be determined, although it may be more than five rods distant from the Wells road. The witnesses differ much in opinion whether the barn stood as far north as the tenant contends. But if their opinions be disregarded, and the attention be confined to'the proof of facts, there is much less difference in the testimony. Nancy- Parker, who was the wife of Benjamin Parker, says -— they planted the lot eighteen years, that the barn was taken down in 1811, that the fence was put up on the line where the barn stood, that she saw her husband show Moses Hubbard where the stub was, which was the corner of the Parker lot, .and it was also the southeast corner of the barn. Moses Hubbard says he occupied the Purington lot in 1816, that there were marks of a fence there as built and occupied by Benjamin Parker, that he occupied up to the place where the fence stood, there was a ridge which shew where Parker had ploughed, and plain marks, which shew where the fence stood, the place where the yard was before the barn was lower, and shew where the barn stood ; that in 1824 he put a shed on, and at the same time fenced his lot'with posts and board fence to enclose the lot; that Parker dug in the ground and shew him a hub buried in the ground, which was at the southwest corner of the barn and the northeast corner of his
Nonsuit confirmed.