Bean v. Bachelder

Emery, J. The defendant claimed under the earlier deed, which contained the description "Lot No. 5, in the 3d range in Greenfield, according to Herrick’s plan.” Herrick had surveyed the south half of the town into lots and ranges, the north half having been previously surveyed into lots and ranges by another surveyor. Herrick then made a plan of the surveyings of the whole town, which plan was in the case. The defendant’s lot was in the south half .that had been surveyed by Herrick. The jury were instructed in effect, the lines run by Herrick upon the surface of the earth, as and for the boundaries of lot five would still be the boundaries of that lot, if their locality could be found, that the question for them to decide was, the locality upon the surface of the earth of the lines actually run by Herrick in making the survey of that lot. The instruction was correct. Esmond v. Tarbox, 7 Maine, 61, is express authority for it. See also Pike v. Dyke, 2 Maine, 213; Williams v. Spaulding, 29 Maine, 112. The plan was merely a picture. The survey was the substance. The plan was not made to show where the lots were to be hereafter located, or how they were to be hereafter bounded. It was [187] made as evidence of where they had before been located and bounded. The lot actually surveyed, bounded by the lines actually run, was the lot intended to be conveyed. The plan was named in the deed, rather as a picture indicating the location and lines of the lot. Still the actual boundaries, rather than the pictured boundaries were to be sought for. The picture might not be wholly accurate. The defendant’s counsel urges that the words of the deeds in the cases cited, are merely of "reference to the plan,” which he claims, simply indicate the relative location of the lot without attempting to define the boundaries. He claims that the language of his deed being "according to the plan,” does undertake to define the boundaries and to limit them to the plan. In Esmond v. Tarbox, supra, it does not appear that the language was of reference merely. Such language however, has full as much force. There is no difference in the effect. Lincoln v. Wilder, 29 Maine, 179; Erskine v. Moulton, 66 Maine, 276. Exceptions overruled. Peters, C. J., DaNFORTh, YirgiN, Foster and Haskell, JJ., concurred.