Rathbun v. Geer

Baldwin, J. The return of' distribution, under which both parties claim title, must be so construed, if possible, as to give effect to every part, and make them all consistent with each other. The southerly boundary of the tract set to Zebadiah Com-stock was described as a straight line running from west to east, S. 86° E., for 150 rods, from one fixed monument to another; and the northerly boundary of the adjoining tract set to Bethiah Baker’s heirs was described as a straight line running westerly from the latter of these monuments to the former, S. 86° W., 150 rods. The words, however, added to the description of the Comstock tract, “and to include the whole pond with the dam,” if given their natural effect, would carry its southerly boundary, for the space of a number of rods, a few rods south of the line connecting the two [424] monuments. The rest of the boundary, as described, on each side of the pond, could be maintained, not indeed in the exact course designated, but in a straight line between the monuments at either end. The course designated for the northerly boundary of the Baker tract was plainly inconsistent with that previously designated for the southerly boundary of the Comstock tract; since it was a straight line running between the same monuments in a reversed direction, and, if the course of that was correctly described as S. 86° E., the course of this must have been N. 86° W., instead of S. 86° W. The length of this line was also incorrectly given. Upon this state of facts, the court properly instructed the jury that the pond and dam were controlling monuments, and that the dividing line between the parties was south of such dam. The court was also right in refusing to charge as requested by the plaintiffs. It was a question of law, upon the facts presented, whether there were clauses in the distributors’ description of the Comstock tract so repugnant that they could not stand together; and there is no rule that in case of such repugnancy the first clause necessarity prevails over the last. In respect to the second request, so much of it as was law was substantially given, and in a manner much more direct and intelligible to the jury, when they were instructed that the pond and dam were controlling monuments. The plaintiffs, however, claimed and offered evidence to prove that the predecessors in title of both parties, more than fifty years ago, established and defined the dividing line between the Comstock and the Baker tracts, as a straight line north of the dam, marking it by heaps of stones and posts, and that they and their successors ever since, down to a-time shortly before the alleged trespass by the defendant, had always recognized and acquiesced in the boundary thus established. This claim, if supported by proof, would render the meaning and effect of the original distribution quite unimportant, since the line thus agreed on by the parties in interest, and so long acquiesced in by their successors, would thereby become the true boundary for all purposes. Th6 [425] court so charged the jury, but with the addition of this qualification: “provided, of course, that the original parties establishing it, or acquiescing in it, had knowledge of the facts in relation to the description in the distribution, when they established or agreed to it.” These instructions were probably based upon a misconstruction of the opinion of this court in Perry v. Pratt, 31 Conn., 433. That was an equitable proceeding to establish a lost boundary. The original boundary had been a salt water creek, which in course of years had changed its bed, by avulsion ; and it was claimed that the adjoining proprietors liad acquiesced in it, as a boundary, in its new course. The court held that such an acquiescence, continued for fifteen years, with knowledge of the facts as to the change of bed, would establish a new line of division. But-the knowledge thus required related only to the changes in the physical condition of the boundary. It was not enough to show that the parties acquiesced in the continuance of the creek as marking the boundary between them, unless it was also proved that they knew it had changed its bed. So in the case at bar, the acquiescence of the adjoining proprietors in the new line must have been Avith knowledge of the facts relating to the situation and marking of such line, but it was not necessary to show that they or any of them knew of the terms or even of the existence of the original distribution. For this reason there is error in the judgment appealed from and a new trial is ordered. In this opinion the other judges concurred.