Province v. Crow

The opinion of the court was delivered, November 20th 1871, by Sharswood, J. In the view which we take of this case, the only question to be examined is, whether the plaintiff below succeeded in showing a good title to the premises described in the writ of ejectment. As the conclusion at which we have arrived upon this question is adverse to him, it will be altogether unnecessary to consider whether the case of the defendant as presented by the evidence upon the bar of the Statute of Limitations and upon the estoppel, ought to have been submitted to the jury, and whether the verdict was sufficiently certain to authorize the court to enter judgment upon it. Albert Gallatin laid out the village of New Geneva upon the Monongahela river in the year 1797, and entered of record in the recorder’s office-of the county a plat of his intended town— on which certain lots were laid out and numbered. In a certificate attached to this plat he stated that “ the course of Ferry street from the corner of lot No. 53 to the river not being yet precisely ascertained, and also that the lines of the lots Nos. 158, 203 159 and 160, are not yet precisely ascertained.” This is just as it is given to us in the paper-book of the plaintiff in error, without any correction or explanation by the defendant. No copy of the certificate in full is found in the record. As the sentence is broken and ungrammatical, it is probable that the words “ and also” should be omitted. The sense would then be that in consequence of the course of Ferry street not having been precisely ascertained, the lines of lots Nos. 158, 159 and 160 were not pre-^ cisely ascertained, because they would depend upon the course of the street. It may be that in the certificate these two sentences are disjoined and others intervene between them. It is not, however, very material, as it does not appear by anything in the evidence that the course of this street or the lines of these lots ever were more precisely ascertained. I will notice presently what is alleged to amount to an ascertainment of one of the lines of lot No. 160. On the 10th of July 1830, Mr. Gallatin conveyed to Tazewell P. Martin inter alia lot No. 160, by no other description, and with no boundaries. There is no other source of information, then, to which to resort than to the recorded plan —upon the face of which lot No. 160 is enclosed within five lines, of which Ferry street is one, and the river another. The triangle upon the other side of Ferry street, the premises in controversy, adjoining lot No. 53, is a distinct and separate lot enclosed by three lines, of which Ferry street is' one, and without any number upon it. There is no mark or line to connect these two lots on the opposite sides of the street, as it seems very clear that there would have been had both been intended to constitute one and the same lot, and Ferry street to pass through it, as now contended. It appears besides, from the uncontradicted evidence in the cause, that Martin and those claiming under him* from whom the plaintiff below derived his title, from 1830 to 1869 — a period of nearly forty years — never took possession or made any use of the triangle, but on the contrary disclaimed all title to the land upon the other side of the street. Their possession and their claim were bounded by the street. This was a contemporaneous construction adverse to the interests of those making it, and contemporánea expositio semper est fortissima in lege. The only thing which is relied on by the defendant in error, and which prevailed with the learned judge below to meet this state of facts, was, that in the deed by Mr. Gallatin to John Hewitt, dated in 1802, for lot No. 53, it is described as bounded by lot No. 52, Ferry street, lot No. 160 and Monongahela river. This mere recital of the boundaries of another lot we consider of itself to be entirely insufficient to prove that Mr. Gallatin thereby ascertained the line of lot No. 160, and carried it over Ferry street, so as to include the triangular lot in question. It is altogether too uncertain to accomplish such a result; for it might with equal force of reasoning be maintained 204 that he meant thereby to change the line of lot No. 53 and remove it across the street so as to make it coincide with the line of lot No. 160, as marked on the recorded plan. Had his intention been to ascertain the line of lot No. 160 to be coincident with the marked line of lot No. 53, he certainly would have stated it more distinctly, and perhaps have made a record of it as he had done of the plan; at all events, he would have so described it in his subsequent deed of lot No. 160, and made his grantee of that lot aware of it. Such a recital might possibly operate as an estoppel in favor of the grantees of lot No. 53, but it cannot avail the grantees of lot No. 160, who do not claim under the deed in which it is contained. Their mouths would not have been closed had it been against their interest, neither therefore shall they take advantage of it as an estoppel in their favor. It could not have effect as a grant nor as an estoppel. It was at most but a declaration by Mr. Gallatin not communicated to his grantees of lot No. 160, the record of which was no notice to them, and therefore no more effectual to invest them with a right than were the declarations of the subsequent grantees that their claim was bounded by the street effectual to bar their title if they had one. Under these circumstances we hold that there was nothing to vary the recorded plan, which is the only muniment of title upon which the claims of the respective lot-holders can be safely rested. In his deed to Martin for lot No. 160, Mr. Gallatin makes no mention of Ferry street as passing through and over the lot granted, which certainly would have been done in the most careless conveyancing, if the entire ground on both sides of the street had been intended to be conveyed with so important a reservation as that of a public street to be laid out over and through it. Judgment reversed.