Sproul v. Foye

"Walton, J. This is a writ' of entry. The question is one of boundary. The defendant conveyed a parcel of land, bounding it on one side by " the new county road leading from Wiscasset to Dresden.” Some forty or fifty rods of this road was built outside of the original location of the county commissioners, and the question is whether the line of location or the road as actually built is to be regarded as the true boundary of the land conveyed. The deed bounds the land " by the new county road leading from Wisoasset to Dresden.” At this time the road had been open and used for public travel about three years. Did the parties refer to the road as located, or to the road as built? To a mere line of location not wrought, not in use for public travel, or to the road that was wrought and in actual use as a public highway? When a road is referred to in a deed as one of the boundaries of the land conveyed, we 'should ordinarily suppose that something more than a mere location was meant. A road is a way actually used in passing from one place to another. A mere survey or location of a route for a road is not a road. A mere location for a road falls short of a [165] road as much as a house lot falls short of a house. " Bounded by the new county road leading from Wiscasset to Dresden.” Can the proposition be maintained that an invisible and unwrought location answers such a call better than a visible wrought road over which the public travel is passing daily? We think not. We think such á call in a deed requires something more than a mere location to answer it. Our conclusion is that the Judge who presided at the trial committed no error in declining to instruct the jury that the original location would alone answer the call-in the deed; that, if he erred at all, it was in not ruling as matter of law that the road, as actually built, was the only boundary that would answer the call. This error, however, if it was one, operated favorably for the defendant, and against the plaintiff, and' was one therefore of which the defendant cannot justly complain. It gave him a chance of winning from the jury if he could a point which should have been ruled against him as matter of law. The verdict of the jury establishes the road as built and not the road as located, as the boundary of the land conveyed. We think the verdict is right. Motion and Exceptions overruled. Judgment on the verdict. Appleton, C. J., Cutting, Dickerson, Barrows and Tapley, JJ., concurred.