de Ponta v. Driscoll

Morton, J. The only exception in this case is to the refusal of the judge to instruct the jury, as requested by the demandant, that he was entitled to recover the triangular piece of land, which, as the case finally went to the jury, was all that there was in dispute between the parties. Whether the demandant or the tenant was entitled to this piece of land depended on where the east line of the tenant’s lot and the west line of the demand-ant’s lot was, the two being coincident. This presented a question of fact to be determined according to the evidence. The judge of the Land Court found that the fine was where the tenant contended that it was and that the demandant was not entitled to the triangular piece or any part of it. The report of the Land Court, which is made prima facie evidence by statute (St. 1905, c. 288) of the facts found so far as they relate to or bear upon any of the questions raised, was introduced by the tenant. There was also other evidence introduced by the tenant tending to show that the line was where he contended that it was, as well as evidence introduced by the demandant tending to show that it was where [227] lie contended that it was. The question thus presented was, as already observed, entirely one of fact for the jury. It could not be ruled as matter of law that the demandant was entitled to a verdict in his favor. Exceptions overruled with double costs.