Keenan v. Cavanaugh

The opinion of the court was delivered by WheeleR, J. The lease from Smith — who then owned the whole premises — to Patrick Keenan of the land now the plaintiffs’ lot, and the one from him to John Ragan of the land now the defendant’s lot, appear both to have been executed on the same day. The north line of the land leased to Ragan and the south line of that leased to Keenan, was one and the same line. That line, as described in the lease to Ragan, was wholly artificial except that it ran “ westerly to the east line of the road at a stake.” As described in the lease to Keenan, it was “ in the north line of said Ragan’s lot.” The line could be traced upon the ground only by measurement of distances and by the location of the stake. The evidence of the plaintiff tended to show that measurement was made about the time of the making of the leases, and that after-terward the line ascertained was assented to by all who were interested in it, and that it was then permanently located upon the ground and its position marked by a post at the west end and a fence throughout its course. When this was done, the line became a boundary established and known. The deed of the plaintiffs’ lot from Smith, — made in pursuance of the provisions of the lease — was after the post had been set and the fence built, and while the lot now the defendant’s was one Hurley’s. That deed described the land conveyed by lines and distances on all sides, but described the east line as extending “ thence sixteen rods to Hurley’s land,” and the south line as being “ thence westerly in Hurley’s north line.” From the bill of exceptions it appears that if the land described in that deed should be traced out upon the ground by following the lines and distances from the place of beginning round to the same place, the land in dispute would be excluded from the plaintiffs’ land; and that if the east line should be extended to Hurley’s land and the south line should be placed in his north line as the fence and post marked his north line at the time of the deed, the land in dispute would be included in the plaintiffs’ lot. Whenever, in the description of land in a conveyance, courses and distances and also known boundaries or monu [276] ments are given to describe the same line, and there is a discrepancy between the courses or the distances and the monuments or the boundaries,'because it it is more likely that there would be a mistake or a misunderstanding about the course or the distance than about the monument or the boundary, the latter, as a general rule, govern and control the former. The evidence in this case called for an application of this rule in proper instructions to the jury. The court, although requested, did not apply the rule, and in the charge gave instructions contrary to it. In this there seems to have been error. Cattle by nature are wont to stray abroad. By the common law the owner of them is bound to keep them from straying into the possessions of others. If he fails to do so, and they do damage in such straying, the injury is his trespass. The statutes in respect to fences between occupied lands, do not relieve the owners of cattle from this common law duty. Sorenberger v. Houghton., 40 Vt., 150. When such fences are divided pursuant to the statutes, and an adjoining owner fails to maintain his part of the fence, and cattle of the other adjoining owner stray into his close through that part of the fence, and do damage, he cannot recover for the entry or damage, for the reason that his own neglect contributes to the injury. The statutes were the same in this respect, at the time of the injury complained of, that they are now. The fence between the plaintiff and the defendant does not appear to have been divided, and the entry of the calf into the plaintiff’s close was the defendant’s trespass. The injury done by the calf to the trees was an aggravation of the trespass committed by the entry, and although that injury may not be such as cattle are by nature wont to commit, and not of itself alone a trespass of the defendant, the damage done by it can be recovered with the damage done by the trespass it was a part of. The ruling of the court upon- this subject seems to have been contrary to these views, and to have been erroneous. Judgment reversed and case remanded.