Kohlhepp v. Inhabitants of West Roxbury

Lobd, • J. The St. of 1868, c. 228, requires that the town, upon taking land for the purposes of the act, shall, within sixty days of the taking, file in the office of the registry of deeds for the county in which the lands are situate, a description of the land so taken, “as certain as is required in a common conveyance of land.” It does not follow that the description is not sufficiently certain, because it is in part words and in part a drawing or plan. Nor is it an objection to such plan that it is in sections, if the entire plan is intelligible and may be identified. Nor is it an objection that the written description refers to “a plan recorded with Norfolk deeds, lib. , fol. ,” though writing and plan are simultaneously filed as part of the same description. The question is of identity, which it is competent to prove by evidence. That is a question of fact. The only other question raised is, whether the description of the land by words and plans is a sufficient description. And this, too, is a question of fact. The court cannot say, as matter of law, whether the description does or does not define the land which was taken. The question to be decided is, can one familiar with the land and the monuments upon and about it, by the courses, distances, monuments and other means of identification therein given, apply the description, as filed in the registry, to the land of the plaintiff entered upon by the defendant, with such reasonable certainty as to show the limits of the taking. If so, this is all which the statute demands, and this is a question of evidence and not of law, and the case must Stand for trial.