Dikeman v. Taylor

Hinman, J. The parties in this case were adjoining proprietors of lots in the village of Westport, which were bounded on the east by a highway, and on the west by Saugatuck river. They both claimed under deeds from Charles Fox, but the defendant’s deed was first given, and conveys all that it purports to grant, while the plaintiff’s deed expressly describes his lot, as that part of the land which was not conveyed to the defendant. The controversy was in respect to the dividing line between the lots; and both parties claim a new trial, for the error of the judge in charging the jury. The defendant also asks for a new trial, on the ground that there was not sufficient evidence of ouster, to be submitted to the jury. We do not advise a new trial, on any point; being satisfied that the course, adopted by the court, was correct, under the circumstances. In respect to the dividing line between the parties, the main object is to [228] get at the true meaning of the deed to the defendant. That deed is dated the third of November, 1849, and the property-conveyed is described in it, as “ the north half of a certain lot of land, lying in said .Westport, the whole lot being about forty-one feet front, and about ninety feet deep, with the store, standing on said north half. The whole lot is bounded north by Charles Allen, east by the highway, south by Ebenezer Jessup, and west by Saugatuck river; and the north half is bounded south by my own land.” This description was substantially correct, in respect to the whole lot, but was not a full, or precise description of it. There was a trifle over forty feet on the front line, by the highway, but only twenty-two feet, five inches, on the rear line, by the river; and the store, instead of standing on the north half, projects into the south half, at its south-west corner, in such manner, as to render it impossible to include it in the north half of the lot, provided the line is straight from the centre of the front, to the centre of the rear of the whole lot. There was also a butcher’s shop on the front line, opposite the store, and adjoining it, so as to render it impossible, without an accurate survey of the premises, for the parties to know where the line would pass through the lot. - Now, under these circumstances, it seems obvious that, by the deed, the parties intended to divide the lot into two equal parts, by a straight line, running from the centre of the front, to the centre of the rear line of the whole lot. It was also-intended to convey to the defendant, the store, and the land on which it stands. It was a permanent building, then in the possession of the grantor, and to obtain it, was, probably, the principal object of the defendant, in making the purchase. The court charged the jury, that if the store was not a temporary building, but a building permanent in its character, the removal of which was not contemplated by the parties, the defendant was entitled to the north half of the land, according to ajine, to be drawn from the centre of the front to the centre of the rear, of the whole lot; and also, to all [229] south of that line, which was covered by the store. We think this was a correct construction of the deed, as the property was situated. There is, as we have seen, a sufficient description of what was intended to be conveyed—the north half of the whole lot, together with the store. The store being a permanent building, not intended to be removed, the conveyance of it passed the land on which it stood, upon the familiar principle, that the grant of a house carries with it the garden and curtilage on which it stands. 2 Saund., 401, n. 2. And although the words, “ standing on said north half,” are superadded to the word store, yet as this was an erroneous description, added to one that was accurate and precise, they are words to which the maxim, falsa demonstralio non nocet, properly applies, and may therefore be rejected. It was said, that a crooked, or zigzag line, was not intended by the parties, and it is probably true, that they supposed the store stood upon the north half of the lot, but, as the main object was to convey the store together with the lot, we think it correct to carry out this intention, as nearly as is practicable. The charge gave the parties the straight line, as one of the controlling points, in the description; and gave effect also to the other obvious intention, of conveying the store. This was in conformity with the ease of Nichols v. Turney, 15 Conn. R., 101, which bears some analogy to this case. The parties, to some extent, had occupied the land between the store and the river, promiscuously, each occasionally occupying over the line, on the land of his adjoining proprietor. This, at most, was very slight evidence of ouster, by the defendant; and, alone, would have been wholly insufficient to justify a verdict, finding an ouster. But the defendant had given the plaintiff a written notice, not to trespass on his part of the property, and, in it, he claimed to own all the land north of a line, running from a middle point in the front line of both lots, in a straight line, to the south-west corner of the store, and thence, in a direct continuous line to [230] the river. The court submitted this, in connection with the other acts mentioned above, to the jury, to prove the ouster claimed, instructing them, that an ouster was an act, which was not constituted by mere words, but that the notice might serve to give a construction to such acts, as it was shown the defendant had committed, over the true line; and submitted it to the jury, to find, whether said notice, in connection with the acts proved, was sufficient evidence of ouster. We think this was the proper course, and consequently, there was no error, on either point, in the case. Upon the plaintiff’s claim for a new trial, on the ground that the charge did not give him as much land as he was entitled to, under his deed, nothing need be said. As we think the charge correct, it follows that the claim could not be sustained. In this opinion, the other judges, Waite and Storrs, concurred. A new trial not to be granted.