Griffin v. Bixby

Parker, C. J. If the committee had not ran out and marked a line when they set off the dower of Mrs. Nahor, the course mentioned in the return must have determined the boundary between the parties ; and parol evidence could not have been admitted to show that there was previously a marked line there, varying from the course, and that the committee intended to adopt that line. 16 Pick. R. 235, Allen vs. Kingsbury. But in this case the committee marked a line, and in this respect the present case differs from that just cited, where the monuments were not erected at the time the dower was set off, but at some antecedent period, and for some purpose not known or explained. As the monuments in this case were marked at the time by the committee, and intended to designate the land set off, we are of opinion that this constituted an actual location, and that they must control the course mentioned in the return. 3 Greenl. R. 126, Brown vs. Gay; 5 Greenl. 24, Ripley vs. Berry ; 7 Greenl. R. 61, Esmond vs. Tarbox; 13 Maine R. 329, Thomas vs. Patten ; ante 20, 26, Prescott vs. Hawkins; and see 1 U. S. Digest 474. The evidence offered tends to show that the parties understood that the line was marked and established by monuments, and [457] acted with reference to that fact; which strengthens the case, and shows the propriety of the rale. 7 Johns. R. 241, Jackson vs. Ogden ; 22 Pick. R. 410, Clark vs. Munyan. As to the second question — In Waterman vs. Soper, 1 Ld. Raym. 737, cited for the defendants, Holt, C. J., ruled that if A. plants a tree on the extremest limits of his land, and the tree growing extend its root into the land of B., next adjoining, A. &• B. are tenants in common of this tree, and that where there are tenants in common of a tree, and one cuts the whole, though the other cannot have an action for the tree, yet he may have an action for the special damage by this cutting. What action he shall have is not stated, nor is it quite clear that such an ownership can be established, if the root merely extend into the other’s land. But in Co. Litt. 200, b., it is said, “ If two tenants in common be of land, and of mete stones, pro metis et bundis, and the one take them up and carry them away, the other shall have an action of trespass quare vi et armis against him, in like manner as he shall have for the destruction of doves.” And in Cubitt vs. Porter, (8 B. & C. 257,) it was held, that “ the common user of a wall separating adjoining lands, belonging to different owners, is prima facie evidence that the wall, and the land on which it stands, belong to the owners of those adjoining lands in equal moieties, as tenants in common and “where such an ancient wall was pulled down by one of the two tenants in common, with the intention of rebuilding the same, and a new wall was built, of a greater height than the old one — it was held that this was not such a total destruction of the wall as to entitle one of the two tenants in common to maintain trespass against the other.” It seems to have been admitted, that for an entire destruction of the wall by one, trespass might have been sustained. Without going to the extent of the ruling in Lord Raymond, we are of opinion that a tree standing directly upon [458] the line between adjoining owners, so that the line passes through it, is the common property of both parties, whether marked or not, and that trespass will lie if one cuts and destroys it without the consent of the other. See cases cited in Odiorne vs. Lyford, 9 N. H. Rep. 511.