Gove v. Richardson

[330] The opinion of the court was read at the ensuing September term in this county, as drawn up by Weston J. It has been contended that the demandant’s dec* laration, having excluded all the land to which the tenant’s title extended, he should have disclaimed generally ; and that he can not defend any part of the premises demanded, without, claiming beyond the limits to which his original title would carry him. If however the tenant’s land might, upon a just construction, extend to a greater distance than one hundred and sixty rods, exact measurement, from the northeast corner of lot number 226, as his counsel insists that it does, he could not disclaim, without abandoning that which he has a right to hold. It must further be considered, that although the land demanded is represented as beginning one hundred and sixty rods from the northeast corner of lot number 226, that is not the only description by which it is to be identified and located ; it is also described as adjoining land in possession of the demandant. Now whatever uncertainty there may be in fixing the northeast corner of number 226, it appears from the evidence, that the respective possessions of the parties have been for many years plainly indica - ted by a line fence. The tenant cannot therefore disclaim, without giving up land, which he has long possessed, and to which he contends he has a just title. If his title to the land in dispute has been legally sustained by the evidence, his plea is fully justified ; and we can perceive no well founded objection to the consideration of the cause on its merits, upon the pleadings as they stand. That part of the tenant’s testimony, by which it was proved that as many as twenty nine years ago, there was an old line across the lot, consisting of trees plainly spotted, which was called the southerly line of the Eaton lot, now owned by the tenant, and which, if the true line, would give him the demanded premises,was objected to as inadmissible. It was, however,in our opinion legally received, as tending to show an original location. By whom that line was made did not appear. Twenty nine years prior to the trial, it was an old line, and it was proper for the [331] jury to consider how far it tended to prove that it was a line marked and established,in conformity with the deed, by t o parties in interest in 1787, when Stevens conveyed to Eaton, If such was the fact, the tenant’s title was legally maintained, in that deed, no terminating monument southerly is designated on one of the side lines ; but on the other there is, namely, a stake and stones; and by the courses stated, the end lines were to be parallel with each other. If the monument, thus given on one of the side lines, could now be ascertained, the Baton lot would dearly extend thus far. And if the jury were satisfied that the old line was made and established by the parties at the time, it was competent for them to presume that it coincided with the monument referred to in the deed. The whole lot was supposed to be three hundred and twenty rods in length. In the division, Eaton had one hundred and sixty rods on the north, and by the deed to the demandant which is in the case, his land on the south is described as extending one hundred and sixty rods to the land of Eaton’s heirs. It is apparent then that the lot was intended to be divided into equal parts ; and it appears that the demandant has more than one hundred and sixty rods, exclusive of the demanded premises. It is true that the demandant has made out a title to that part of the lot, which was not granted to Eaton. If he therefore had less than half, the demandant must have more. But if there was an actual survey and location,at the time the deed was executed to Eaton, it was probably made according to the liberal admeasurement of that early period. All these circumstances were properly referred to the consideration of the jury. The testimony of the commissioners, appointed by the court of probate to divide the Eaton lot among his heirs, is objected to. It was not introduced or received upon the ground, that what they did was binding upon the demandant. It was to prove that, according to their admeasurement, which they testify they made with as much accuracy as they could, it was exactly one hundred and sixty rods from the monument then in existence at. the northeast corner of lot. number 226, to the place where the line fence ?s now established. We are not aware of any legal principle, [332] which would exclude this testimony. They were competent witnesses; and the fact to which they testified had a direct bear» ing upon the question in issue. If Dorman, a witness for the demandant, who pointed out to the surveyor, appointed by order of court, the place at or near which, according to his recollection, the monument at the northeast corner stood, was under no mistake, there may have been some error, either in the admeas-urement or recollection of the commissioners; but it was the province of the jury to settle the facts, from all the testimony in the case. It was in evidence that the demandant did, on several occasions, point out the fence placed in the line to which the commissioners measured, as the dividing line between him and the tenant. The jury were instructed that if there was no original location, or if it could not now be ascertained ; yet however, if the parties had fixed a dividing line between them, in which they had long acquiesced, it ought not to be disturbed, unless it clearly appeared to be erroneous. The demandant was not represented in the proceedings by the commissioners ; but as they were disinterested and under oath, he might be disposed to adopt their admeasurement, and if so, that the line thus ascertained ought to be considered as the true one, unless the jury were fully satisfied,'from the evidence, that it was more than one hundred and sixty rods from the northeast corner of the lot; and it was for them to consider, whether that corner could now be ascertained with so much accuracy as formerly, while the monument then Was in existence. A dividing line, between owners of adjoining tracts, may be settled by them under a misapprehension or mistake, which, if clearly shown, may be corrected ; but unless this act of the parties be regarded as strong evidence of the accuracy of the line thus amicably established, a fruitful source of litigation will be left open, of which one or both the parties may avail themselves, when under the influence of less friendly feelings. Surveyors of equal skill and judgment may differ a little in their admeasurement of long distances, especially through woods, and over ground presenting a broken and uneven surface. Slight, if [333] not considerable variances, might be occasioned by so many circumstances, that it is hardly tobe expected, in such cases, that any two admeasurements would agree to a single foot. And this is an additional reason why a line fixed by the parties, ascertained by an admeasurement from a distant point, should not be lightly disturbed. In the opinion of the court, the jury were properly directed by the judge, who presided at the trial ; and the tenant is entitled to Judgment on the verdict.