Hamlin v. Attorney General

Knowlton, O. J. The only question in this case is what is the westerly boundary line of that portion of the petitioner’s land which lies on the easterly side of Beacon Street in Mattapoisett. The lot is particularly described by metes and bounds, the line in question being designated at one end, at the point from which the measurement starts in another direction, away from the road, in these words: “ Beginning in the east line of the road, at the southwest corner of land owned by Susan Cannon.” The boundary then runs around the lot to the east, and “ thence southerly by the sea to a road or passway adjoining the lighthouse, United States land ; thence northerly in the east line of said road about ninety-five rods to the place of [312] beginning.” The only dispute between the parties is whether the road is included or excluded. The line in question is described as running, throughout its entire course, “in the east line of said road.” It terminates at a point at the beginning of the measurement, “ in the east line of the road.” This part of the description is plainly within the decision in Smith v. Slocomb, 9 Gray, 36, where Chief Justice Shaw says in the opinion: “ If the party chooses to retain his remnant — his fee in the soil under the road — he may do so.” As is conceded by the petitioner’s counsel in his brief, it is within the decision as to the second lot in the late case of McKenzie v. Gleason, 184 Mass. 452, 458. If, instead of fixing the boundary in the east line of the road, it used general language establishing it “ on the road,” it would convey the land only to the centre of the road. Lemay v. Hurtado, 182 Mass. 280. Gray v. Kelley, 194 Mass. 533. As was said in the last of these cases, “the rule stated by some courts, that, when one bounds on a street or private way to which he has title, without owning any land on the opposite side of it, his grant will include the fee of the whole of the street or way, does not prevail in Massachusetts.” See In re Robins, 34 Minn. 99 ; Haberman v. Baker, 128 N. Y. 253 ; Taylor v. Armstrong, 24 Ark. 102. The petitioner’s argument rests mainly upon the general description, which precedes the particular description of the property, in these words: “A certain piece of land, situated in the town of Mattapoisett and on the road leading from the village to the lighthouse and being all I now own of the Edwards land, so called, bounded as follows.” It is to be noted that in this statement the “ piece of land ” is said to be “ on the road,” not a tract including the road. It appears that the grantor owned the fee of the road as a part of the Edwards land, although the lot on the side of the road was all that he owned that could be sold for an ordinary use. It has been held in many cases that a general statement of this kind is of no effect to control a particular description of the land conveyed. Said Mr. Justice Wilde in Dana v. Middle-sex Bank, 10 Met. 250, 255: “ It is a case of double description, . . . and it is now fully settled, that the description by metes and bounds is to prevail, although a different description [313] is given by reference to the grantor’s title deeds.” In Whiting v. Dewey, 15 Pick. 428, 434, the general words were “ being all the same land which the said Benedict Dewey, deceased, lately owned,” etc. See also to the same effect, Cassidy v. Charles-town Five Cents Savings Bank, 149 Mass. 325; Muto v. Smith, 175 Mass. 175; Crabtree v. Miller, 194 Mass. 123. Decree for the petitioner as to the land east of the easterly line of the road extended to the sea, and as to the land on the westerly side of the road.