Haring v. Van Houten

Green, C. J. This action was brought to recover a strip of land, ten feet in width by one hundred feet deep, in the town — 64 — of Paterson. Upon the trial, the whole question resolved itself into a mere question of boundary. The plaintiff and defendant were the owners of adjoining lots in the town of Paterson, both fronting south upon Willis street. Both titles had a common origin; the plaintiff’s title was the older. The plaintiff’s lot was situated at the northeast corner of Willis and High streets, being bounded on the West by High street. The plaintiff’s lot, in the original deed and in all the subsequent conveyances, was described as follows: “Beginning at the northeast corner of High or Strait street and Willis street; thence running easterly along Willis street sixty-nine feet; thence northerly, at right angles to Willis street, one hundred feet; thence westerly, parallel with Willis street, about seventy-four feet, to Higl) street; thence southerly along said street to the place of beginning.” The defendant’s lot adjoined the plaintiff’s on the east, and was described as “ beginning at a point 69 feet from the corner of High and Willis streets; thence running north, 6 degrees east, 100 feet; thence south, 82 degrees east, 25 feet; thence, parallel with the first course 1'QO feet, to Willis street; thence westerly, along Willis street 25 feet, to the place of beginning.” The controversy related entirely to the boundary line between the two lots, and that depended upon the true location of the lot of the plaintiff. The plaintiff, in support of his title, showed a conveyance from Mark W. Collet and A. S. Pennington to Peter D. Weight, on the 17th December, 1835; and through Weight, a title vesting in himself, on the 1st of June, 1842. He also gave in evidence a certified copy of the return of six surveyors of the highways, bearing date on 16th June, 1821, laying out High street as a public highway, three rods wide and twenty-one chains in length. He further proved the precise location of the western line of the street as laid out by the surveyors, and that, allowing the full width of three rods to High street, at its intersection with Willis street, and fixing the plaintiff’s beginning corner at that point, his length of chain (69 feet) on Willis street would carry his line ten feet beyond the line, as claimed by the defendant, and include the premises in <3is65 pute. That High street was opened soon after it was laid out, in 1821, to its full width of three chains from its beginning point, on Broadway, to the north line of the Collet and Pennington lot, which was about 350 feet north of Willis street. From that point to Willis street the fence on the east side of the street encroached upon the highway, gradually increasing in width, until at the intersection of Willis street, at the corner of plaintiff’s lot, the encroachment was ten feet one inch. The plaintiff also offered in evidence a deed from George Van Ry-per to Collet and Pennington, dated 11th July, 1831, for a lot (including the plaintiff’s lot) extending 4 chains 67 links on Willis street, and 5 chains 68 links at right angles thereto; also a map of the said premises, made by Collet and Pennington, on which the land was divided into lots for sale, and on which High street was represented as three rods wide by measurement.- It further appeared in evidence, that High street along the Collet and Pennington lot, had never been open to its full width; that the fence, from the time the street was .opened, liad always stood where it now does ; that the successive owners of the plaintiff’s lot, Van Ryper, Collet and Pennington, and Haring himself, had claimed and possessed the land to the extent of the alleged encroachment; that some years prior to the commencement of the suit, the plaintiff had built a house on the rear of his lot, fronting on High street, which projected about five feet beyond the true line of the street, having a court yard in front, which encroached eleven feet five inches on the street. The dwelling house of the plaintiff, at the corner of High and Willis streets, was built by Francis Van Blarcoin, about the year 1823, and the fence on High street set by him about where it now stands. The house itself is not within the line of the street. At the time of the conveyance to Collet and Pennington, in 1831, this was the only house on the lot east of High street. A large number of lots have since been sold, making the fence, as it stood, the line of High street. The lots on Willis street have all been sold, as far as the title of Collet and Pennington extended, and several, of them built upon. — 66 — Some four or five years previous to the trial, Haring, the plaintiff, moved the division fence between himself and the defendant farther east. After the defendant purchased, in 1835, his lot was surveyed at his request. The surveyor fixed the division line between the parties ten feet four inches east of where it now stands, so as to give the whole of the disputed premises to the plaintiff, and the defendant built his house just clear of the line, as the surveyor located it. The judge charged the jury, that if the fence on High street had been standing in the same place twenty-five years, the public having acquiesced during that period, and the parties having bought in reference to that as the line, the fence should now be considered the easterly line of the street, and that both the public and the owners of the land were concluded by it. The jury rendered a verdict for the plaintiff. The defendant asks a new trial, upon the grounds, among others, that the verdict is against the law, against the evidence, and against the charge of the court. Upon the trial the plaintiff showed an undoubted title to a lot of land at the corner of High and Willis streets, and extending from the corner sixty-nine feet, easterly, upon Willis street. The defendant showed title to the lot on Willis street, adjoining the plaintiff on the east. The only question between them related to the true location of the boundary line between them. The plaintiff has within his enclosure sixty-nine feet, his length of line upon Willis street. But it was insisted, and attempted to be proved upon the trial, that the lot is located ten feet too far west, encroaching that distance upon High street, and if the street is opened to its proper width, it will take ten feet from his front. He sought, therefore, to fix the location of his land ten feet farther east, and to encroach thus far upon the possession of the defendant. The only question then was, what was the true location of the plaintiff’s lot? The only monument referred to, to ascertain the location, is the beginning corner, which is described as “ the northeast corner of High or Strait street and Willis street. That language may refer either to the point of intersection of the lines of the street, as laid out, or to the actual corner of the street, as actually — 67 — opened, and improved or occupied. If the streets had not been opened, or, if opened, if no fences or buildings had been erected to designate the position of the sides of the street, the language must of necessity have referred to the mathematical corner, and the beginning must have been ascertained by running the lines of the street as laid out to the point of intersection. On the other hand, if the streets had been opened and improved, if the corner had been built upon, and thus clearly ascertained, the language of the deed might with propriety and more naturally refer to the.actual corner as it existed, than to any imaginary corner to be ascertained by running the streets according to the actual survey. In common parlance, in speaking of the corner of a street, reference is had to the actual corner as it exists, and as it has been defined by buildings or improvements. On the part of the plaintiff, it was insisted that the language of the deed had reference to the true corner of the streets, to be ascertained by.running the lines of the streets, as laid out. And, for the purpose of establishing this point, he oifered in evidence the return of the street as a public highway, and proved by parol its location. This evidence was objected to by the defendant, but admitted by the judge, and its admission is one of the grounds assigned for a new trial. The evidence-was clearly competent, even though the proceeding of the surveyors and the return of the road were illegal and void. The question was not, whether the road was a legal highway, but where it was, and what was the intent of the parties to the deed in referring to the corner. The parol evidence was introduced not to contradict or vary the instrument, but to determine its application, to fix the locality, and to remove a latent ambiguity, for which purposes parol testimony is always competent. 1 Greenl. Ev. § 286. The question is a pure question of intent. To what corner did the parties to the- deed refer in making the conveyance ? What land did they intend to convey? Where did they intend to locate the lot?' That this intent most govern, in fixing the location, admits of no dispute ; it is too clear to require authority in its support. The language of the deed being doubtful as to the begin — 68 — ning corner, and the consequent location of the plaintiff’s premises, the construction given by the parties themselves, as shown by their acts and admissions, is deemed to be the true one, unless the contrary be clearly shown ; and, parol evidence of the acts and admissions of the parties is always admissible to show the practical construction given to the deed by the parties themselves. When the language of the deed is doubtful, a practical location . by a grantee, and his recognition of a line, even though that location be erroneous, and give him less land than the actual courses and distances in his deed, may bind the party, and conclude his rights. The authorities upon these points are numerous. Stone v. Clark, 1 Metc. 378; Adams v. Frothingham, 3 Mass. 362; Codman v. Winslow, 10 Mass. 149; Rockwell v. Adams, 7 Cowen 761; Jackson v. Smith, 9 John. 100; Jackson v. Ogden, 7 John. 238. To conclude the parties’ rights, it is not necessary that there should have been an actual agreement between the adverse claimants, or that the practical location should have existed over • twenty years. It does not rest either upon agreement or upon the doctrine of prescription or legal limitation. In Jackson v. Ogden, 7 John. 246, Wanness, J., said, “The extent to which we have hitherto gone is, that when two persons, already having a title, have settled the line of division between them, or when one having title has made an actual location, according to what he supposed to be his true line, and his neighbor's have acquiesced in such location for a considerable length of time, that the boundary thus established shall remain undisturbed.” This was a dissenting opinion, because be supposed the majority of the court went beyond the rule thus laid down; but the doctrine thus declared was subsequently approved in Rockwell v. Adams, 7 Cowen 761 ; 6 Wend. 467. In the latter case the court said, “ Reasons of propriety and policy forbid that a party having located his premises, and thereby induced others to purchase and improve accordingly, should afterwards be permitted to allege mistake, and extend his possessions so as, perhaps, to take away those very improvements which were made upon the faith of his previous act.” Rockwell v. Adams, 6 Wend. 469. — 69 — There was evidence opon the trial to show that the fence along High street, on the west of the plaintiff’s lot, was set by Francis Van Blarcom, who built the plaintiff’s dwelling house, as early at least as 1823, and probably in 1821, soon after the street was laid out, many years before the defendant purchased, and more than twenty years before the commencement of the suit; that each successive owner of the premises claimed and occupied to the line thus established ; that the fence thus erected constituted, in fact, the corner of High and Willis streets at the time of the conveyance by Collet and Pennington to Weight, and at the time of the conveyance by the sheriff to the plaintiff, in each of which the corner of the street is called for as the beginning corner of the plaintiff’s premises; that from the time of the conveyance to the plaintiff, in 1842, down to the time of the trial, the plaintiff had held and occupied the land up to the line and corner thus designated, and had built upon it beyond the line, which it is now insisted is the boundary of his lot. The question, it must be remembered, is not, where is the true line of the street, but where is the land which was conveyed by Collet and Pennington to Weight, mortgaged by him, and by the sheriff conveyed to the plaintiff’. Vow when is it shown that the plaintiff, and those under whom he holds, have for more than twenty-three years claimed, and held to a given point, as the limit of their possession and the corner of the street, when he had himself built upon the land, and bolds and enjoys it without molestation, shall be be permitted to say that his land is elsewhere? that, the land which he has long quietly held and improved is not covered by bis title, and thus attempt to shift his location upon the land of the defendant, and oust him of his possession? The conduct of all the proprietors and of all the parties to these conveyances, both grantors and grantees, show clearly, that by the corner of High and Willis streets, they meant not an imaginary corner, but the corner as it was actually laid out and as it existed at the time of the conveyance. But if there were doubts upon the point, nay if it were clear that the plaintiff’s lot was located erroneously and against the intention of the parties to the conveyance, I am of opinion — 70 — that the acts of the plaintiff since he came into possession, and the influence of those acts upon the rights of others, conclude him as to the location. If the plaintiff, upon the purchase of his lot, had erected a building sixty-nine feet in length, covering his entire front, and if the entire block had subsequently been sold and built upon, all the lots conforming to the plaintiff’s location, and depending upon it, it would not be pretended that the plaintiff could afterwards, upon ’discovering that his building encroached upon the street, oust the next adjoining proprietor, and he the next, thus unsettling the titles throughout the entire block. If the mistake were discovered within a year after it occurred, and after the buildings were erected, it would be too late to correct it. The party has fixed his own locality. He had not only knowingly permitted his neighbors to improve, but by his own act has induced them to improve upon lands, the title to which he now claims as his own. To what extent these objections apply to the plaintiff in the present case does not clearly appear by the evidence, but it does appear that a large number of lots have been sold in the same block since the sale and location of the plaintiff’s lot; that these lots have been built upon and improved, and that if the line is altered, the titles of many of these lots will be disturbed, and in some instances buildings erected will be intersected by the lines of division. Nor, in my judgment, is the case altered if the judge erred in his opinion, that the right of the public to open the street to its full width was barred by lapse of time and the adverse enjoyment of the plaintiff and of those under whom he claims. Admitting the right of the public to open the street, (upon which it is unnecessary here to express any opinion), nay, admitting that the street be actually opened to its entire width, and a part of the plaintiff’s.lot to be thereby appropriated to public use, it surely can confer upon the plaintiff no right to redress his own loss at the expense of his neighbor, or to attempt to change the location of his lot, which by his own act he had determined. In such case, indeed, his claim would have the semblance of justice, however, destitute of law it might be to support it. But it is worthy of notice in the present case, that — 71 — there is no pretence that the plaintiff has lost, or is in danger of losing, any part of his land by a mislocation. There is no evidence of any attempt to open the street to its full width or to encroach upon the possession.of the plaintiff. lie holds the entire quantity of land called for in his deed unmolested, and precisely where he, and those under whom he claims, fixed its location. To permit him, under such circumstances, to shift the location of his lot, and to eject the adjoining proprietor upon the pretext that his location is an encroachment upon the highway, has neither law nor justice to support it. I am of opinion that the verdict is against law and against the charge of the court, and must therefore be set aside upon the payment of costs. It is proper to add, that the state of the ease which has been furnished the court is quite imperfect. There are obviously chasms and imperfections in the testimony. It mav^therefore, be that the facts as stated are not in entire consistency with the evidence, as it appeared upon the (rial. Enough, however, appears to warrant the conclusion that the jury erred, and that the verdict must be set aside.