McCandless v. Du Roi

OPINION OP THE COURT BY ROBERTSON, C.J. (Quarles, J., dissenting.) The petitioner (appellant) and the contestant each owns a parcel of land situate on Liliha street in Honolulu. Their — 52 — lands adjoin on one side. In 1904, the land court, upon the petition of the present contestant, Du Roi, entered a decree confirming his title to his lot and brought the same under the operation of the land registration act (R. L. 1915, Ch. 178). In that decree the boundary between the lands of these parties was described as follows: “5. 276° 10' 56.1 feet along land described in L. C. Award 1127, Ap. 2, the south bank of the auwai being the boundary. “6. 295° 15' 35.6 feet along the south bank of the auwai. “7. 265° 56' 54.2 feet along the south bank of the auwai.” The initial point of the boundary thus described being the north-west corner of the contestant’s lot. It is conceded that that decree conclusively determined the boundary between the two lands. That determination, clearly expressed in the decree, was that the boundary ran “along the south bank of the auwai.” This was assumed by court and counsel to mean the edge of the bank. The petitioner, McCandless, in describing this boundary in his petition in the case at bar, followed the former decree except that, with a view to more definitely locate the edge of the south bank of the auwai, added certain offsets from straight lines run between the located points mentioned in that decree to the exact edge of the bank. That gave rise to this controversy as it developed a dispute as to the exact location of the auwai upon the ground at the time the former decree was made. It presented a question of fact which, upon conflicting evidence, was decided against the petitioner’s contention. The land court held that the south bank of the auwai was in the same location in 1904 as at the time of the trial of this case; that the located points in the former decree were not exactly coincident with the edge of the auwai; and that in endeavoring to locate the edge of the auwai in the decree in this case it would be necessary to give offsets — 53 — at the located points as well as at the intermediate points as asked for in the petition. The contest, therefore, involves a narrow strip of land lying between what the petitioner contends was the line of. the edge of the auwai at the time of the former decree, and its present makai edge, the contestant contending that the position of the bank has not been changed. The width of this strip varies from practically nothing to 1.7 feet. What is the boundary between certain lands is a question of law, but the location of that boundary upon the ground is a matter of fact. 5 Cyc. 969. Smith v. Smith, 110 Mass. 302, 304; Whitehead v. Ragan, 106 Mo. 231, 236; Taylor v. Fomhy, 22 So. (Ala.) 910, 912; Mitchell v. Williams, 76 S. E. (Va.) 949. Here there can be no dispute as to the question of law, for, as above stated, the decree of 1904, in explicit terms, determined the “south bank of the auwai” to be the boundary. The disputed question of fact, namely, the location of the bank of the auwai, has been conclusively settled by the finding of the court below. The ground upon which the petitioner asks for a reversal of the decree in this case is, that in specifying offsets to define the exact edge of the auwai at the points located in the former decree, the present decree is inconsistent with, and, in effect, changes the former adjudication. There is no merit in the contention. The matter of locating the exact edge of the auwai by means of offsets was brought into the case by the description contained in the petition, and as the evidence disclosed the fact that the located points in the 1904 decree were not coincident with the edge of the auwai it became necessary in the decree in this case to specify those offsets. Under the decree in this ease the boundary remains exactly where it was determined to be by the former decree, namely, “along the south bank of the auwai” as it then existed. The new decree, at the instigation of the petitioner himself, simply undertook to definitely locate the edge of the auwai — 54 — at certain points. The petitioner’s grievance really is that the question of fact as to whether the location of the south bank of the auwai has been changed since 1904 was decided against him. But that question is not open for review upon this appeal. The statute allows appeals to be taken from decrees of the land court upon the facts to the circuit court and a jury, and allows appeals to be brought to this court “solely upon points of law.” R. L. 1915, Sec. 3145. A surveyed description of land contained in a decree of court, if it requires construction, is subject to the same rules of construction as a description contained in a patent, a deed, or other instrument inter partes. If the former decree be regarded as assuming that the four located points were at the edge of the auwai, and the fact be, as from the finding made by the land court we must take it to be, that the points specified in the boundary described in the former decree were in fact not coincident with the south edge of the auwai, then an ambiguity was shown which called for construction. In that event the rule would apply that “course and distance will yield to known visible and definite objects whether natural or artificial.” 5 Cyc. 913, 921. This is unavoidable where, as here, it is clearly stated that the object, to wit, the bank of the auwai, is the boundary. In the case at bar an admitted ambiguity arises in the description of the point contained in the former decree with reference to the north-west- corner of the Du Roi land. That corner is located in the decree in three ways, by course and distance and by reference to two objects, viz.: “190° 25', 86.5 feet along L. C. Award 1127 * * * to east angle of wall at auwai.” The undisputed evidence in this case showed that no two of those references were coincident. The point located by course and distance is a short distance north of the angle of the wall, and the edge or bank of the auwai is a short distance north of the located point. The double ambiguity in regard to that point must be resolved, — 55 — as the single ambiguity as to the other points is to be resolved, by giving controlling effect to the explicit statement in the decree that the bank of the auwai is the boundary. The decree in the present case, following the description in the petition, avoids one of the ambiguities of the former decree by omitting the reference to the angle of the wall. That was perfectly proper, and by so doing the former decree was no more impeached than it is by adhering to the bank of the auwai at the other places at which the court found the points located by course and distance were in fact not coincident with the bank. “Location of land is a question of evidence and cannot be reduced to fixed and, definite rules. A correct location consists in the application of any one or all of the rules of construction to the particular case; and when they lead to contrary results, that must be adopted which is most consistent with the intention apparent on the face of the grant or conveyance, to give effect to which thé agreed on line therein described may be corrected so as to correspond with the fact.” 5 Cyc. 883. The former decree was impotent to change the physical facts as they existed on the ground. Upon this view of the case the court below properly held that the points located by course and distance being not coincident with the bank of the auwai must yield to the bank, which, in the present decree, was particularly located by means of offsets. The same result is reached by approaching the matter from another — and, we think, a more accurate — standpoint. The south bank of the auwai being irregular, the located points given in the former decree are to be taken as meander points merely and are not to be regarded as points on the exact boundary. Counsel for the appellant admits, as he must, that the bank of the auwai is the boundary between those points, and it logically and neces — 56 — sarily follows that at those points also the bank is the boundary whether it be coincident with the located points or not. In other words, the straight lines from point to point, as shown on the plan attached to the description in the former case, were not intended to be, and are not claimed to be, boundary lines. They were mere meander lines. “In surveying land adjacent to ‘a stream, whether navigable or not, lines are often run from one point to another along or near the bank or margin of the stream. * * * These are called meander lines, and they are not the boundaries of the tract, but they merely define the .sinuosities of the stream which constitutes the boundary, and as a general rule, the mentioning in a deed or grant, of a meander line on the bank of a river as a boundary, will convey title as far as the shore unless a contrary intention is clearly apparent.” 4 R. C. L. p. 97. See also 5 Cyc. 899; Whitaker v. McBride, 197 U. S. 510, 512; Freeman v. Bellegarde, 108 Cal. 179, 185; Stonestreet v. Jacobs, 118 Ky. 745, 749; Tucker v. Mortenson, 126 Minn. 214. In Mitchell v. Smale, 140 U. S. 406, 414, the supreme court said, “It has been decided again and again that the meander line is not a boundary, but that the body of water whose margin is meandered is the true boundary.” And in 2 Devlin on Deeds (2nd ed.), Sec. 1026A, the author says, “The principle is so well established that it would serve no good purpose to elaborate it.” A proper understanding of the object of the located points in the former decree shows that there is no real conflict in the description contained in the decree as between the bank of the auwai and the located points, and that the bank is the boundary throughout. P. L. Weaver for petitioner. R. B. Anderson (Frear, Prosser, Anderson & Marx on the brief) for contestant. There being no error of law in the decree appealed from, it is affirmed.