Warren v. Pierce

Weston J. It is the well known practice of proprietors of townships in this State, to have them surveyed and laid out in ranges and lots, causing both to be numbered in regular sequence. They then sell by the number of the lot and the range, without a more particular description. And the purchaser is entitled to his lot according to its actual location, as made by the survey, if that can be ascertained ; if not, it is to be located from the plan by actual admeas-urement. The plaintiffs are the owners of number eight, in the first range east in Baldwin. The plan of the town is lost. There is no question about the range lines, between which number eight lies. The plaintiffs show where numbers seven and nine are ; and these lots are located beyond controversy. The judge instructed the jury that number eight must be presumed to extend from seven to nine ; and that the burden of proof was upon the party, interested to show 11 a different location, to do so by satisfactory evidence. He would have been justified in using a stronger language; and in slating that eight did and must extend from seven to nine, unless a different original location could be shown. The burden of proof is doubtless upon the plaintiffs to make out their case ; but when they show the range lines between which their lot is bounded, and the side lines of the lots next below and next above theirs in number, they have located their lot, and made out their case; if it be not successfully controverted by opposing testimony. The proprietors voted, it seems, to lay out their town in one hundred-acre lots. But it is of no consequence what they proposed or intended to do; the question is, what have they done, by their surveyors or other agents duly authorised. Their intention, as manifested by their vote, was very inaccurately executed ; some of the lots exceeding the quantity, which is not unusual, from the liberal admeasurement formerly made ; and some falling short of the number of acres proposed, which has less frequently happened. It is' conceded that eight ought to adjoin seven, because the surveyor must have begun at one and progressed onwards; but it is urged that it would not conclusively follow that it would extend to nine; especially in the present instance, where the plaintiffs claim two hundred acres, instead of one hundred, to which, it is insisted, his lot should be restricted ; and that it ought the rather to be presumed that the surveyor dropped or omitted a lot in his numbering. But it must be considered that there is precisely the same reason for presuming that nine adjoins eight, as that eight adjoins seven. The line therefore adjoining seven is no better established than that whieh adjoins nine. If the defendant could have shown original corners, or a line dividing the space between seven and nine, the case would have been differently presented. But the burden of proof was upon him to do this; and as he failed to do it, eight must be located as it stands numerically, adjoining seven on one side, and nine on the other. Selling, as the proprietors do, by the number of the lot and of the range, the range and lot lines are referred to as monuments, and when found, will govern and control courses, distances and quantities. Judgment on the verdict.