Clary v. McGlynn

The opinion of the court was delivered by Barrett, J. I. The line in dispute, according to the description in the deed, is from a corner, on a given course, a given number of rods, to a corner. The deed does not say whether those corners were marked on the land. If they were not marked, then they would be found by following the courses and-distances given in the deed. If they were marked, then they would be found 'by finding the monuments by which they were marked. The language of the deed is as consistent with their being marked, as not marked. It was therefore doubtful on that language, whether they were marked or not. It was proper to give evidence to solve that doubt — and no objection or exception was taken to the giving of such evidence. That evidence showed that those corners were in fact marked by monuments. Being thus established, the authentic boundary would be a straight line from one corner to the other, notwithstanding it did not conform to the course and distance named in the deed. In this case such straight line was marked by marked trees. This fact was also legitimate, as tending to show the marked corners called for by the deed, and was in harmony with the legal rule, that in such case the line between such corners is a straight line. 6 Gray, 448 ; 16 Pick. 235. The matter was treated in the charge in full regard to the law, as stated and applied in all the cases cited on the subject. II. ‘As to costs. It would seem that “ the right of title aud possession” was involved in the first trial. Both parties claimed to own the land in dispute, and the right was to be determined by fixing the true line between them. This would come within what is meant by that expression in the statute. See Powers v. Leach, 22 Vt. 226, in which the true idea of the subject is developed and illustrated. On the first trial, no such question was made. We do not find occasion to decide whether the right to be allowed full costs, is to depend on the coming in question of the right of title, &G., on the final trial, or on its coming in question at any [357] stage in tbo course of the litigation. In § 18 cb. 33, Gen. Sts., it is provided that the court may make order as to the allowance of costs, in their discretion, where only nominal damages are recovered. As the case is before us, it is not apparent that the court did not act on the subject of 'costs under that provision. The exception in § 22, ch. 125, Gen. Sts., does not withdraw the subject, in a call like this, from the scope and effect of § 18, supra. The case therefore does not show that the court committed any error in point of law, in the order as to costs. It would need to be very plain on the face of the bill of exceptions, that such error had been committed, in order for this court to be warranted in reversing the judgment as to costs. Judgment affirmed.