Webber v. Overlook

Dickerson, J.

Trespass quare clausum. It appears from the evidence that the land of the plaintiff adjoins the land of the defendants on the south. The defendants’ north line is thus identical with the plaintiff’s south line. The defendants hold by the elder title. The determination of the defendants’ north line, therefore, fixes the location of the plaintiff’s south line.

All the deeds from the original proprietors under whom both parties claim title, through several mesne conveyances, bound the grantees on the west “by the county roadand the deed of the defendants’ immediate grantor makes that road the western boundary of the land conveyed under it. The defendants’ north line, as substantially described in the deeds they introduced, is a line drawn from a point in the line dividing lot 23 in the centre from north to south, extending westerly to the county road, and parallel with the north line of said lot, so as to leave forty acres in the west half of the same, north of it. It is obvious that the location of this line upon the face of the earth depends upon the construetion that is to be put upon the words, “to” or“ by the county road.” If the whole or half of the road is to be included in the quantity of land remaining in the west half of the lot north of this line, it would be farther north than it would, if the whole r<oad or half of it is to be excluded from the computation, and vice versa.

It is a familiar rule in the construction of deeds, that a deed bounding the grantee by a highway conveys the fee to the centre of the highway, when the title of the grantor extends so far. Palmer v. Dougherty, 38 Maine, 502. Hunt v. Rich, 38 Maine, 195.

The original grantors under whom the parties claim, not only owned the fee in the land covered by the highway, which is made the western boundary of the several parcels conveyed by them, but they also reserved an easement of any road legally laid over the same for public use. The north line of the defendants’ land, therefore, is a line drawn from east to west on the west half of lot No. 23, to the center of the highway, parallel with, and so far south of the north line of said lot as to leave forty acres in said west half of said lot north of it; and the south line of the plaintiff’s land is identical with that line. According to the plan of Peter Moulton, the court surveyor, which is made a part of the case, that line is indicated by the middle red [dotted] line, which is one rod and twenty links south of the red [dotted] line, drawn to indicate the’defendants’ north line, if it extended to the western line of the road, and thus included the whole of the road in- the forty acre parcel.

The plaintiff testifies that the trespass was committed four feet north of the last mentioned line ; and the defendant, Overlook, testifies that he cut up to within two feet of the Hersey stake, so called, which the plaintiff locates four feet north of the line run by Moulton, to include the whole of the road in the reserve of forty acres. There can be no doubt but the defendants committed a trespass upon the land of the. plaintiff by cutting and carrying away, at least, a part of the grass sued for. How much they took, north of their line, does not exactly appear. The plaintiff claims to own the land to what is called, on Moulton’s plan, “the divisional line fence,” and estimates the amount cut north of that line at one ton, worth $12. We think $6 is a fair estimate of the value of the grass cut on the plaintiff’s land.

The evidence does not sustain the plaintiff’s claim of title by-disseisin. Judgment for plaintiff for six dollars.

Appleton, C. J., Dickerson, Virgin, Peters and Libbey, JJ., concurred.