Wooster v. Butler

Church, J. In the progress of the trial of this cause in the court below, several questions collateral to the main point of controversy, were presented and determined, and which now furnish some of the grounds of exception here. — 315 — 1. The defendant claimed, that the demanded premises were a part of an ancient travelled highway running along-the meadow land, at the base of the rocks, towards the ferry on Connecticut river, called Ely’s ferry; and that this highway was the same intended to be reserved in the original grant from the town of Lyme, to Richard Ely, January 26, 1676. And for the purpose of proving that this highway was recognised, by the proprietors of the adjoining land and others residing in its vicinity, as being the reserved highway, the defendant offered in evidence a copy of a paper recorded in the town-clerk’s office in the town of Lyme, purporting to be the survey of a road laid out by a committee, and referring to the reservation in the original grant; and probably made about the 6th of October, 1741, as on that day it was left for record. This survey was made by Nathaniel Matson and Daniel Ely, at the request of the inhabitants of the North Society of Lyme. This paper was properly rejected. It furnished no evidence of any fact material to the enquiry before the court. It was accompanied by no record of any town, proprietary or court appointing a committee to lay out a road. It purports to have been laid out at the request of the North Society of Lyme; but societies never had power to lay out roads. Indeed, the paper was offered without any evidence of authenticity or legality. But if it had been admissible as a well authenticated document, it was irrelevant. If it was true, as the defendant claimed, that this highway had been legally laid out and established, and upon the very ground intended in the original grant to have been reserved, it would have furnished no aid to this defence. The reservation of a highway only secures to the public the right of passage, but does not interfere with the rights of the owners of the soil, only so far as to secure this right of passage. If the plaintiffs had title to the adjoining lands, this reservation and the highway laid out upon it, could not interfere with their right to recover in this action. 1 Root 49. 118. Fowler v. Savage, 3 Conn. Rep. 90. Matrons v. Southworth, 5 Conn. Rep. 305. Peck v. Smith, 1 Conn. Rep. 103. Hart v. Chalker, 5 Conn. Rep. 31. 2. The plaintiffs denied, that the highway intended to be reserved in the original grant, was ever located over the locus in quo, but claimed, that if any highway was ever laid out — 316 — upori_that reservation, it was over the upland. And as conducing to show this, they offered as witnesses several aged men, who testified, that when young, they had heard old men, now dead, say, that there was [a travelled road or highway over the upland, as the plaintiffs claimed. This evidence was objected to, but admitted. The evidence was of that species of hearsay, called traditionary evidence. In England, such testimony has always been received to prove facts of a public or general nature, as in the present case. In this state, we have extended it yet further, and have admitted it to prove the boundaries of lands between individual proprietors ; and we have no doubt as to the propriety of its admission on the trial below. 1 Phil. Ev. 183. 1 Stark. Ev. 60. Outram v. Morewood, 5 Term Rep. 123. Porter v. Warner, 2 Root 22. 1 Sw. Dig. 766. Swift’s Ev. 123. Higley v. Bidwell, 9 Conn. Rep. 447. 3. The declaration described the demanded premises as being bounded South on the turnpike road. And the defendant claimed, that the actual lines of the turnpike, as surveyed and established, included within their limits the Southerly part of the lands sued for; and claimed, that such part at least could not be recovered in this suit. It was conceded, that the land sued for was bounded South by the travelled part of the turnpike ; and if it was, the description in the declaration was sufficiently certain. This was what the pleader really intended, by the language he used. It cannot be supposed, that he referred to mere ideal lines, but to known and visible limits. And by bounding the land upon the turnpike road, as a legal intendment, he bounded it by the center line ; so that in either view, this objection was untenable, and was properly disregarded by the court. 4. But a much more important question is presented in regard to the proper construction of the deeds under which the plaintiffs claim title to the land in controversy. And this was the real ground of dispute between the parties. Two plans were presented and explained, on the trial. These were made by different surveyors, and constructed upon different principles, and in conformity with the different constructions put by the parties upon the deeds in question. The deeds under which the plaintiffs more directly traced their title, were, 1. A deed from Cullick Ely, Esq. to Adriel — 317 — Ely, of three small parcels of land, lying, as the plaintiffs supposed, North of the turnpike road; and, as they these were contiguous pieces, and included the demanded premises. 2. A deed from Adriel Ely to Charles Ely, the plaintiffs’ grantor, of a parcel of land described as follows: “ Beginning at a mear-stone, 40 feet East from the South-East corner of Cullick Ely’s dwelling-house; thence Northerly, by said Cullick’s land, to a stake and stones by a ledge of rocks; thence Southerly, by Marsh Ely’s land, as the wall stands, to a stake and stones by the highway; thence West, to the first station; containing one third of an acre, more or less.” This parcel, the plaintiffs suppose to be the same land described in Cullick Ely’s deed to Adriel, as three pieces of land, and includes, as the plaintiffs claim, the demanded premises. Asa Roath, Esq. who made the survey and plan for the defendant, commenced his survey forty feet East of the SouthEast corner of Cullick Ely’s dwelling-house, and run according to the directions given in the aforesaid deed, “ Northerly, by Cullick Ely’s land, to a point at the ledge of rocks.” Richard Selden, Esq. who surveyed this land for the plaintiffs, and made the plan used by them on the trial, commenced his survey at the same point, and run to the same point at the ledge of rocks. The next line, as given in the deed of Adriel Ely to Charles Ely, is, “ Southerly, by Marsh Ely’s land, as the wall stands, to a stake and stones, by the highway.” The supposed ancient wall referred to, run only a part of the way in Marsh Ely’s line, by the ledge of rocks, and then diverged from that line, but did not extend to the highway. Nor were there any stakes or stones at any point on the highway constituting a boundary. Roath considered the ancient wall as the governing boundary and line, and followed that as far as it extended, in making his survey, without regard to the line of Marsh Ely’s land; and then, in the last course of the wall, extended his line to the highway; and thus included a little less than one third of an acre, but excluded the demanded premises. Selden, on the contrary, considered the ledge of rocks as being Marsh Ely’s line, and followed that, in a South-Easterly direction to the highway, regardless of the course of the wall after it had diverged from that line; and by his survey, he — 318 — enclosed a little more than one third of an acre, and included the land in controversy. Charles Ely, under his deed from Adriel Ely, had entered upon the disputed land, and had occupied it, for several years, without any claim or controversy from Adriel Ely, or any other person. The defendant claimed, that the ancient wall was the con-trouling line, a known and prominent boundary, which should have governed in the construction of the deed; and he claims, that the court erred m saying to the jury, that they were at liberty to regard the ledge of rocks in determining the title to this land, and to depart from the course of the wall, whenever that departed from Marsh Ely's line, if they believed that his line was determined by the course of the ledge. That the construction of written documents is a matter of law, and is not, in ordinary cases, to be submitted to the jury, as a matter of fact, is true ; but where the doubt is produced, by the existence of collateral and extrinsic facts, not appearing upon the instrument, its consideration ceases to be a matter of mere legal construction, and the intention of the parties is to be sought for, by a recurrence to the state of facts, as they existed when the instrument was made, and to which the parties are to be presumed to have had reference. The ambiguity, in such case, is a latent one, which may be explained, by parol evidence, and submitted to the jury. Several facts of this character existed in the present case, which rendered it uncertain what was intended by the language of the deed. The deed seemed to refer to the ancient wall and to Marsh Ely's line as identical; but they were not entirely so. There was no stake and stones, as mentioned in the deed. The ancient wall, even if it had appeared certainly to stand in-the same place as when the deed'was executed, did not, as the deed expressed it, extend to the highway. Under such circumstances, what could be done, but to refer them all to the jury ? The ancient wall was, to be sure, if its exact ancient position was known, a very prominent and controuling boundary; but it was not as much so, as the ledge of rocks, if that really constituted the line of Marsh Ely's land, as the plaintiffs claimed. There were other facts, too, not without their importance in determining the real locality of the land described. Charles Ely, under this description in his deed, had taken possession of this land, and had occupied it, for — 319 — many years, without objection or claim from Adriel Ely, or any other person who could have had claim to it, if it was not conveyed; and thus a contemporaneous practical construction had been given to the deed, by all who could have had any interest in it. Jackson d. Schuyler & al. v. Vedder, 3 Johns. Rep. 8. Goodrich v. Ogden, 7 Johns. Rep. 238. Newcomb v. Smith, 9 Johns. Rep. 100. Jackson d. McDonald v. McCall, 10 Johns. Rep. 377. Jackson d. Van Cortlandt v. Van Corlaer, 11 Johns. Rep. 123. Jackson d. Schenck v. Wood, 13 Johns. Rep. 346. Livingston v. Ten Broeck, 16 Johns. Rep. 14. It was, therefore, certainly proper, as in all other cases of this character, to submit to the jury the question, which of two prominent objects was the true boundary, the wall or the ledge. And as the jury, under the instructions of the court, have found that the most prominent, as well as the most certain and permanent boundary, was the true one, we cannot say, that their verdict was against evidence. We shall advise that there be no new trial. The other Judges were of the same opinion, except Waite, J., who gave no opinion, the suit having been brought by him as the next friend of the plaintiffs. New trial not to be granted.