Blackington v. Sumner

Api>ueton, C. J.

This is an action of trespass, quare clausum fregit, for cutting down a fence built by the plaintiff on land in her possession and to which she claims title.

The defendants justify as owners of the premises upon which the fence was erected.

.Both parties derive title from the same source, but the defendants’ is the elder. The only monument recognized by the parties-is at a point marked red B on the plan. Beginning at this point and following the courses and distances given in the deeds, and assuming a proper allowance for the change in the variation of the needle to have been made, and that the running in 1846 (which is the date of the deed under which the defendants derive title), was with the same accuracy and skill as that by the surveyor appointed by the court in this case, the land in controversy belonged to Wm. A. Farnsworth, whose title the defendants represent.

The plaintiff offered evidence tending to show that there was a stone wall in 1847 between her and the defendants’ lots when the deed under which she derives title was given ; that, when the house now occupied by her was built (about twenty-seven years ago), a portion of the wall was taken for the cellar of the house ; that, after the removal of that portion, a stake was driven down at its termination on the street; that the house then erected was built parallel with the wall or line claimed by the plaintiff, and not with that claimed by the defendants; that the place where the wall had been could still be seen by a depression in the land; that the wall was in fact the dividing line between the plaintiff’s and defendants’ lots, and that the fence which the defendants’ testator removed was on that line.

A view was had of the premises by the jury who returned a verdict for the plaintiff.

Exceptions to the ruling of the presiding justice, and a motion for a new trial, were duly filed.

During the progress of the trial a stake was found at the end of the line on Pleasant street, as claimed by the plaintiff.

George W. McKenney, whose father built the house occupied by the plaintiff, in his direct examination, testified that he was present when the wall was taken away twenty years ago't; that he thought a stake was then driven down at the corner between the lots on Pleasant street; that his father drove it down, and that •there was a large rock left beside the stake. On cross examination, he said he did not know that he saw the stake driven down, •or that he had seen it since a boy, or that he had ever seen it,— .■saying, however, that he thought he had seen it, and that the stake was put there.

I. The counsel for the defendants requested the court to instruct the jury that, “ even if George W. McKenney did testify, on direct examination, that the stake was driven in the ground when the wall was removed, but, on cross examination, testified that he did not see it put there, and did not see it afterwards and had never seen it, his whole testimony should be disregarded.”

This requested instruction was properly refused. The force and effect of McKenney’s testimony was for the jury. They had seen and heard him. They had observed his manner and appearance. It was for them to determine what his whole testimony was, how far this evidence on his direct examination had been modified or changed by his cross-examination, and what reliance could be placed upon it. It was not for the court peremptorily to instruct the jury to disregard it. It would be an assumption of their province to have done so.

II. It was not questioned that there had, some thirty or more years ago, been a wall between the plaintiff’s and the defendants’ lot. This wall as originally built differed, as the plan shows, but slightly from the line as claimed by the defendants, and was the line on which the plaintiff built her fence as the true line.

In reference to this, the following instruction, to which exceptions are taken, was given :

“Now the first question is, was there a wall there? With regard to this you have certain evidence, — evidence that there was a wall (one of the witnesses says thirty-two years ago — thirty, thirty-one or thirty-two years ago); that the wall was there before the house (plaintiff’s) was erected. Then they find a stake. It is for you to say how long that stake was there and for what purpose it was put there. The plaintiff’s position is, that that stone wall from red 13 (on the plan) to that stake was originally the line of these lots located by the parties themselves. The wall, if there, was there for some purpose; the monument, if honestly there, was there for some purpose. Did the wall originally-exist ? They say there is a depression in the ground. You have seen it and know how it is. The plaintiff says this wall was the dividing line between these parties ; that it was built for that purpose, and that it run to that stake, and that this was the line twenty-seven years ago — thirty-one years ago — and the buildings were built parallel to that line, and hence she asks you to infer that the parties agreed upon the wall as a line and put down monuments, and therefore she has a right to claim to it. On the other hand, the defendants deny that there were any monuments there, and deny the wall, and the plaintiff asserts its existence. What was the wall between these lots for? Was it for a line between these parties ? Or for what purpose ? Did they at the time place monuments there ? There are none referred to in the deed. The wall, so far as its existence is established, is a fact evidential to determine where the true line is. Now, gentlemen, take the evidence. You have heard the various testimony. It is for you to say where this lot was originally run out, and whether the wall was built upon the line and a monument put at the end of it. If you find where the line was originally laid out, that is the true line between the parties, though there may have been a variation of three degrees. The only important fact is to determine where is the true line, as laid out, between these lots.”

These instructions left the whole question as to the wall to the jury, — whether it was on the line between the parties or. not, as one side asserted and the other denied. If the wall was there before the plaintiff’s or the defendants’ lot was run out, its existence would render it improbable that any other line was adopted ; or such a line as the defendants’. With a wall between two lots, it would be little likely that the owner on selling would create a new line, leaving the wall partly on one lot and partly on the other. But however that may be, the whole was submitted to the jury, and no erroneous legal position is perceived in this portion of the charge.

III. Another portion of the charge to which exception is taken is as follows: “ The only question is, what was the original line of the plaintiff’s lot, or, rather, of the defendants’, for the plaintiff’s is bounded by the defendants’ lot. And, to determine what the original line was, you are to look at all the evidence in the case; the wall, so far as it has any bearing, the monument, if you find it, so far as it has any bearing. The force of the whole it is for you to determine. One witness, I believe, testified originally that a stake was driven in the ground when the wall was removed, and, on his cross-examination, that he never saw the stake. So far as his testimony goes, so far as the testimony of the other witnesses go, you are to take their whole testimony as originally given, and as affected, more or less, by cross examination, as to the facts in the case.”

It was for the jury to weigh the whole evidence, and the whole was left to their sound judgment. No error is perceived in the instruction given.

IY. The counsel for the defendants requested the court to instruct the jury “ that, in ascertaining where the line was originally run, they must be governed by the calls in the deed to Keizer,” from whom they derive their title.

This proposition was affirmed, the court adding that the calls in the deed were primary evidence, but that the jury were to consider the other evidence as bearing on the result, and give their verdict accordingly.

The general proposition of the defendants’ counsel was sustained, but there was other evidence, and the jury were directed to consider that, so far as it bore on the case; and properly so directed.1’1

Y. The jury were instructed that the stake claimed by the plaintiff as a monument could not affect the defendants’ title unless assented to by Farnsworth or his grantors.

YI. The counsel requested the charge in respect to what constituted disseizin.

In answer to this request the court declined to say anything one way or the other as to the facts of possession. But charged the jury that to constitute a title by disseizin, there must be open, notorious and exclusive and adverse possession.

Whether there was adverse possession was for the jury and not for the court, and it was not for the court to say whether there had been adverse possession or not.

That open, notorious, exclusive and adverse possession will constitute a disseizin is well settled. Winthrop v. Benson, 31 Maine, 381. Chadbourne v. Swan, 40 Maine, 260. The request of counsel did not relate to the length of time necessary for the acquisition of title by adverse possession, it referred only to the kind of possession required to constitute it adverse.

VII. The court_was requested to instruct the jury that, if the wall was there when the deed was given, and the deed does not call for it, there is no presumption that it was intended for a line bound. This the court declined to do, and left the effect of the wall to the jury.

There is no presumption of law one way or the other on this subject. Any inference from the fact assumed in the request was for the jury, to whose consideration it was properly submitted.

VIII. A motion has been filed for a new trial. The facts were for the jury. They did not think that, if there was a stone wall between the two lots in controversy, that a grantor would be likely to run a new line between them, varying slightly from the existing boundary, having part of the wall on one lot and part on the other ; or that a grantor, building within a year or two from the date of his deed, and when the true line could not but be known, would be likely to build a house, otherwise than parallel with the lines of the lot. The jury saw the premises, and the stake, and the place where on the face of the earth it was found. They saw and heard the witnesses, and were the appointed judges of what they said and of the reliance to be placed on their testimony.

The value of the property in dispute is trivial. The damages given were excessive, considering what was done and that it was in assertion of a supposed legal right.

Exceptions overruled. New trial granted, unless the plaintiff will remit all but ten dollars ; in which case the motion is overruled.

Danforth, Virgin, Peters and Libbey, Jd., concurred.