Harvey v. Byrnes

M ORTOS, J. The plaintiff claims under a deed from Patrick Hynes. At the date of this deed Patrick Hynes owned two lots on Cedar Street, one a rectangle, the other a triangle, separated from each other by an intervening lot belonging to Julia A. Edwards, and the deed conveys a portion of the triangular lot. Both of these lots, together with the Edwards lot, were conveyed to Patrick Hynes by deed of William Hynes dated July 8, 1864. The deed to the plaintiff, after the description, contains this clause, “ meaning to convey to said Jane one half of all that 1 now own of land conveyed to me by deed of William Hynes dated July 8, 1864.” [521] Construing this deed in the light of the location of the two lots, the considerations expressed in the deeds, and the situation of the parties, we have no doubt that the intention of the parties was that the deed to the plaintiff should convey one half of the triangular lot, and not a portion of that lot equal to one half of both lots. ” But the deed to the plaintiff is so uncertain that it is impossible to lay out upon the land the lot intended to be conveyed. The easterly line is fixed with certainty; but the deed does not fix the length of the northerly line on Cedar Street, or of the southerly fine, either by existing monuments or by measurements. It is therefore impossible to ascertain where or in what direction the westerly line was intended to run. If the point at which either of these lines should terminate in its westerly end was fixed, the inference might be that the westerly fine was to be run from that point to the other line in such a direction that it would give the plaintiff one half of the triangular lot. But the length of both lines is undetermined, and therefore it is impossible to ascertain the westerly fine. It is clear that, when the deed was made, the parties contemplated that the length of the northerly and southerly lines and the location of the westerly line, were to be determined by monuments thereafter to be erected. The deed provides that said land is “ to be surveyed and the bounds set,” there being no monument existing at the time. In this state of facts, if the parties had erected monuments, such monuments would govern the boundaries of the plaintiff’s lot, although it might be less than one half of the triangular lot. Makepeace v. Bancroft, 12 Mass. 469. No monuments were erected by mutual agreement of the parties ; but after the deed to the plaintiff Patrick Hynes conveyed by warranty deed, to Alley Hynes, the whole or a part of the remaining portion of the triangular lot, in which he fixed, as we understand by the report, the easterly line of the lot conveyed, by metes and bounds. He thus established monuments which as against him fixed the westerly line of the plaintiff’s lot. Alley Hynes afterwards conveyed this lot to the defendant, who entered and occupied under his deed, up to the line thus established. [522] His acts of occupation under this deed constitute the alleged trespass. This line, if it is to be taken as the westerly line of the plaintiff, does not give her quite one half of the area of the triangular lot, and the question is whether, she can maintain an action of tort in the nature of trespass quare clausum for these acts of the defendant. We are of "opinion that she cannot. Possession of the premises is indispensable to the maintenance of trespass quare clausum. Shepard v. Pratt, 15 Pick. 83. Sha had no possession of the locus, actual or constructive. Her deed was inoperative, for uncertainty, to fix any westerly line, and cannot be held, as against a bond fide purchaser, to convey any land westerly of the line established by her grantor. The ground taken by the plaintiff, that she was in possession of the premises before the alleged acts of trespass, cannot be sustained upon the facts. She had no actual possession of the locus, either by cultivating it, or inclosing it, or setting up bounds. Her westerly line was to be established by monuments subsequently to be put up, and until it was established she had no constructive possession beyond what she actually occupied. Cook v. Rider, 16 Pick. 186. Judgment for the defendant.