Keith v. Reynolds

MelleN C. J. delivered the opinion of the Court. This case presents two questions. — 1. Does the locus in quo fall within the true limits of the tract of land granted by the proprietors of Winslow to Ezekiel Pattee ? 2. If it does, is it embraced and conveyed to the plaintiff by the deed of Breed Newell 9 The proprietors granted to Pattee the westerly half of a tract of land, extending from the mile brook eastward two miles, and fifty rods in width. By a plan exhibited it appears that the brook is not at right angles with the side lines of the lot; and the first question is, how the easterly end line is to be run across the lot; whether at right angles with the side lines of the lot; or so as to conform to, and be parallel with the oblique course of the brook. If in the former manner, then the locus in quo will not be included in Pattee'1 s grant; if in the latter manner; then, it will be included. We are satisfied that the easterly end lines across the westerly and easterly half of the two mile grant, must be run on [397] the same principles and in the same manner, so that both halves will be of the same form. And from the language of the grant, we are of opinion that those lines must not be at right angles with the side lines, but conforming to, and parallel with, the course of the brook; and thus the locus in quo is embraced within the limits of the Pattee grant. And if upon the principles of fair and sound construction the locus in quo is also found to be within the tract conveyed to the plaintiff by NewelPs deed, we should not disturb the verdict, even if the language of the Judge in his instructions to the jury, was not perfectly distinct and precise; which, however, is not admitted, as the course of the admeasurement must be considered as implied in his instructions, as to the mode of ascertaining the true position of the easterly end line across the lot. It is said he used the same language which was employed, by him in delivering the opinion of the Court in the case of Winthrop v. Curtis, when speaking of the true mode of settling the exterior lines of the Plymouth patent. We do not, however, consider the cases as similar. In that case, by the terms of the deeds of conveyance to the proprietors of the Kennebec purchase, the exterior lines on each side of Kennebec river were to be in all places fifteen miles distant therefrom; but such distance was not required to be measured on any particular given course; for if such had been the case, then if the river be considered as running due south, and the distance should be measured on a west and by north, or west-north-west course, it is very clear that the end of the line so measured, would be considerably less than fifteen miles distant from the river. But in the case before us, the course of the side lines of the grant to Pattee is given; and it is admitted that such course is not at right angles with the brook; but extends easterly from it in an oblique direction; and so the grantee, Pattee, had a right to extend his lot easterly to the length of one mile from the brook on each side of the lot; without any reference to the distance of the easterly end of it from other parts of the brook, measuring in the nearest possible direction. We are therefore, as we before said, of opinion that the locus in quo is within the grant to Pattee. The second question is whether it is also within the tract or farm conveyed by Newell to the plaintiff. Here it is important to attend [398] to the language of Newell’s deed. There is a want of accuracy, and indeed a repugnance, in some parts of this language. We must gather the intention of the parties from the whole of the descriptive language used. It is contended that all that part of the deed in which reference is made to the grant of the Plymouth company to Bradford arid others, and the grant of the proprietors of Winslow to Pattee, are merely matter of recital, and of course cannot be taken into consideration in ascertaining the true extent and boundaries of the plaintiff’s land. We cannot accede to this position. We consider all the above particulars as parts of the description of the land conveyed; and some of them very important parts. In this deed Newell describes the premises conveyed as “ a certain tract of land or farm” — included in the tract granted to Bradford and others — “and- which was granted by the “ proprietors of the above said tract to Ezekiel Pattee, Esq.”— and it is then stated “ said farm is bounded as followeth” — and yet in the description of the lines and courses, the course of the easterly end line is stated to be at right angles with the side lines of the lot. Such a line contradicts that part of the description in which it is declared to be the same farm granted to Pattee; and will restrict the deed so that it would convey only a part of said farm, and leave a small triangle at the easterly end, contrary to his declared intention. Certain monuments govern courses and distances which are less certain. We think that upon the true construction of Newell’s deed, it must be considered as embracing the locus in quo; and of course, the instructions of the Judge to the jury were correct, and there must be judgment on the verdict.