Robinson v. White

Appleton, J. This is an action of trespass quare clausum. The plaintiff claims a parcel of land in the town of Morrill, the boundaries of which are described in his deed as follows : “Beginning at the southwest corner of Jacob Dolliff’s lot, at a beech tree; thence south eighty-four degrees east one hundred and fifty-six rods to the pond to a stake and stones; thence southerly on said pond about eighty rods to a stake and stones, &c., &c., containing seventy-five acres more or less, as surveyed by said Prescott.” As no motion for a new trial as against evidence, appears to have been made, the only questions arise on exceptions to the rulings, or the refusals to rule, of the presiding Judge. The controversy between the parties is, as to certain bog land lying between where the “stakes and stones” are alleged to have been placed, and the water line of the pond. The stakes and stones are not shown as now standing, but evidence was introduced tending to show their original location to have been at some distance from the pond as it now is. 1. The first requested instruction was, that “if they found that there was an old stake standing at the end of the one hundred and fifty-six rods, the distance named in the deed, bearing upon it surveyor’s marks, and other indications of the character of the monument named in the deed, in the absence of all proof to the contrary, the presumption would be that it was the stake referred to in the deed.” This was refused. What the “ other indications of the character of the monument” were, do not appear to have been stated in the request. But there was no presumption of law in the case. The various facts bearing upon the stake, tending to show the same to be the monument, were proper for the consideration of the jury; but the Court could not, as requested, have given the instruction that there was any presumption of law binding on them. The evidence was entirely for the consideration of the jury. 2. The instruction given, so far as applicable to the second request, is unobjectionable. [217] 3. The third request was, that “the stake is the particular monument, and that the phrase “at the pond,” or “to the pond,” are only indicia of the place where the stake stood; and if a stake is proved to have existed at the place where the pond was at the time of the deed, even if it only reached that point at the time of the freshet, under no legal hypothesis would go beyond the stakes,” which was given. It is not necessary to determine the accuracy of this instruction, for as it was given in compliance with the request of the defendant, he can have no cause of complaint. But to this instruction, the further qualifications were added, “that the pond and stake were the monuments named in the deed, that they were identical, and that if they could find them to coincide on the face of the earth, then they would be the true monuments; but if the stake could not be found, then the pond was to be taken as the most certain. But if they should find that a stake was erected by the parties when the deed was made, or immediately thereafter, at the margin of the pond as it then was, and that, at the time it was so erected, the pond was enlarged from any cause beyond its natural margin, then such stake, or the place where it stood, would be the true monument or boundary.” It has been held, when land adjoining a river, is described as bounded by a monument standing on the bank of the same, and a course is given as running from it down the river, as it turns to another monument, the grantee takes to the middle of the river. Luce v. Carley, 24 Wend. 451. So when land is bounded by a line commencing at a stake “by the side of the river or mill-pond,” and running by the side of said pond to another stake by the said pond, the grant extends to the thread of the river. Lowell v. Robinson, 4 Shep. 357. “It is conceded,” remarks Cowen, J., in Starr v. Child, 20 Wend. 149, “that the words to and along the river would include the stream. What difference between them and to and along the shore ? A difference in words signifying the same. In either case, taken literally or according to common understanding, they carry you to a line immediate the water [218] and the land, and touching both.” If a boundary is described as running to a monument standing on the bank, and from thence running “by the river,” or “along the river,” it does not restrict the grant to the bank of the stream; for the monument, in such case, is only referred to as giving the directions of the line to the river, and not as restricting the boundary on the river. Child v. Starr, 4 Hill, 369. Although the monuments are described as standing on the margin or bank of the stream, the grant carries the title of the grantee to the centre of the river, unless its terms clearly denote an intention to stop at the margin. Cold Iron Spring Works v. Tolland, 9 Cush. 495; Inhab. of Ipswich, pet'rs, 13 Pick. 431. Where land is bounded upon a lake or pond, if it is in its natural state, it would seem that the grant extended only to the water’s edge. State v. Gilmanton, 9 N. H., 461. Where the pond is an artificial one, “it would be natural to presume,” remarks Shaw, C. J., in Waterman v. Johnson, 13 Pick. 261, “that a grant of land bounding upon such a pond, would extend to the thread of the stream upon which it is raised, unless the pond had been so long kept up as to become permanent, and to have acquired another well defined boundary.” Now the qualifications of the third requested instruction, cannot be regarded as unfavorable, in any degree, to the defendant. They restrict the plaintiff to the stake and stones, if they can be found, or if their original location can be ascertained, but if neither can be, then “to the pond.” To these, defendant cannot justly except. 4. The fourth requested instruction was properly refused, for nothing is better established than that natural monuments must control both course and distance. The instruction given, in lieu of the one requested, is not one of which the defendant can complain. It required the line to be run to the pond, “unless they should find the pond was enlarged, and a stake erected as aforesaid.” In all the instructions, the precedence was given to the artificial over the natural boundary. It is not necessary to determine whether, if the verdict had been for the defendant, the exceptions might not have been [219] sustained; but it is very certain that he has no just ground of complaint. Exceptions overruled. Tenney, O. J., and Hathaway and May, J. J., concurred.