Atwood v. O'Brien

Danforth, J. An action of trespass upon land, which is before the court upon facts agreed. It is admitted that the fee is in the plaintiffs. The defendant admits the alleged acts of trespass, and justifies under a claim of a right of way. The validity of this claim is the only question iuvolved. Its foundation is found in a deed of September 18, 1884, from these plaintiffs to Andrew Kelley, Jr., the defendant’s grantor, by which land south of that in question is conveyed. The description in this deed is, so far as material, as follows, viz. : "Beginning at a point on the northwesterly side line of First street . being on the division line between lot No. 11 and land of Barker and Davis, according to Bradley’s plan of the Davenport lands extended March 24, 1851, thence northwesterly on said division line and the continuation thereof two hundred and forty feet to a stone on the continuation of the southeasterly side line of Second street, thence northeasterly on said continuation of said line one hundred and sixteen feet to a point on the continuation of the southwesterly side line of ' Rowe street’ so called, thence southeasterly on said continuation line two hundred and forty feet to a point on the northwesterly side line of First street, thence southwesterly on said side line . . to the place of beginning.” It is claimed that there is a grant of a right of way over what is called "Rowe street,” or that the plaintiffs are estopped to deny the defendant such a right by virtue of this deed. It is undoubtedly well settled that a conveyance of a lot of land by reference to a plan upon which streets are laid down in connection with the lot conveyed, or when the land is bounded by a street, such a grant, or estoppel, will ordinarily follow. [450] But this conveyance lacks several of the elements necessary to bring it within that rule. The description is by fixed and definite metes and bounds, and not by a reference to any plan. The only plan referred to is that of Bradley’s, and that only to fix the starting point. Upon that plan there is no location, no indication whatever of any such street or way, as is here claimed. The land is not bounded upon the street claimed. The northerly line which is alleged to be such a boundary, begins and runs upon the "continuation” of the southwesterly side line of "Bowe street,” showing, as do the facts, that though Bowe street might be in existence at some other point, yet it did not at any place come in contact with, or adjoin this land. All these facts were patent and as well known, or should have been, to the grantee as to the grantors. The lot was bounded at each epd by a located and traveled way. How then can it be said that here was a grant of a way when there was none in existence, no occasion for any, or an estoppel from asserting a truth equally well known to both parties and clearly recognized by the deed ? Much more would the deed, with its definite description, come within the principle settled in Warren v. Blake, 54 Maine, 276, and exclude the way, even if there had been one. But it is said that a continuation of " Bowe street ” across the land in question was contemplated when the deed was given, and it is claimed that this intention was a sufficient dedication of it to enable the grantee to hold a right of way over it. In Bartlett v. Bangor, 67 Maine, 460, it was held that the.location of streets upon a plan and selling the lots by reference to the plan, would constitute such a dedication of the way as could not be revoked by the owner. But our attention has not been called to any case, nor are we aware of any, where the mere recognition of a contemplated street as such would have that effect, especially where there was no location upon any plan. But however that might be under other circumstances, in this case it can have no such effect. It appears from the facts in this case that "Bowe street” had been opened and traveled from Main street in the direction of this land in question, but stopping some little distance before [451] reaching First street, which is the easterly boundary of the land conveyed to Kelley. If continued in a straight line of the same width across First street to Second street, its southwesterly side line would be the northerly line of the lot sold Kelley, as described in the deed. In 1878, Mr. Wilson acting for the proprietors, proposed to the city of Bangor that if it would extend Rowe street, well "'graded and gravelled,” across this land, the city might have all the gravel contained on said street and two years to remove it. This proposition was accepted by Bangor, as appears by its records, and the gravel taken. This was the contemplated street. It was not dedicated to the public-nor represented as such by any plan, or otherwise. The plan,, made a part of the advertisement of the auction sale, showed it as a " proposed street,” and the advertisement described the lot as lying on the " southerly side of the proposed extension of the-so called Rowe street.” These facts were all open and the grantee was put on his guard; by the terms of his deed, as well as in other ways. The plaintiffs-had fully performed their part of the contract. It only remained-' for the city to perform its part. The contemplation, the contingency, was with it, and the fact that the street is not there, is-not the fault of the plaintiffs, but is the fault of the city. When Kelley bought, if he relied at all upon having the street, he must have relied upon the city and not upon the plaintiffs. B.ut the case does not stop here. By the subsequent conduct, of the parties, it is made clear that no claim was made by Kelley upon the plaintiffs, or if so, he released them from it. In June,, 1885, the city having refused to make the street, paid for the-gravel it had taken. In the following December, another contract was made between the plaintiffs and Kelley, by virtue of which another deed was given in which a nominal consideration is expressed. In this deed the plaintiffs release to Kelley all their interest in " the southerly half of the so called ' Rowe street ’ lying between the First and Second streets in Bangor, which adjoins land of said grantee.” Then follow these words : "This deed is given for the purpose of settling beyond any doubt that the northerly line of said grantors’ land, between said streets, [452] lies in the center of the so called Rowe street, and that said Kelley is the owner of the southerly half of said Rowe street, subject to whatever easement or right of way may be over the same.” This deed having been accepted by Kelley, he is bound by its terms, and in it he acknowledges the title of the grantors to the northern half, the very land in question, without any ¡reservation whatever, and for the expressed purpose of removing any doubts as to that title. At the date of the first deed both parties had reason to expect and undoubtedly did expect that Bangor would extend and make fit for use " Rowe street.” The deed was given and received with that impression, the grantee taking his chances. The expectation failed, the chance for a public street had gone, and the grantee’s title extended only to the southerly line of the expected street. While fifty feet was perhaps none too wide for a public street, half that would be amply sufficient for all private purposes. Hence to quiet all claims, to remove all doubts, the latter deed was made, giving the grantee the control of the half adjoining him with the right of way over that, and the control of the other half without any right of way over that, to the grantors. Whatever may have been the effect of the former deed, the last one we think settled the whole matter, and if any right of way remained it was a private one, and over what became Kelley’s own land. Of this construction certainly Kelley has no reason to complain, and the defendant can have no more rights than his grantor. As agreed, the entry must be, Defendant defaulted. Damages one dollar. Peters, C. J., Virgin, Libbey, Emery and Foster, JJ., concurred.