Robinson v. White

Evidence tending to show that a certain “ stake ” is the monument referred to in a deed, is proper for the consideration of the jury; but from the facts thus proved, and in the absence of all proof to the contrary, the Court would not he authorized to instruct the jury that there was any presumption of law that it was such monument. In an action of trespass, quare clausum, the burden of proof is upon the plaintiff to show affirmatively the location of the monuments named in the deed under which he claims, and that they include the place entered upon by the defendant. A party has no cause of exception to an instruction given to a jury by the presiding Judge at his own request. Nor can a party justly except to instructions as favorable to him as the law will justify, though erroneous in other respects. A grant of land described in the deed as extending to a monument standing on the bank or margin of a river, goes to the thread of the river, unless its terms clearly denote an intention to stop at the margin. It seems that land bounded on a natural lake or pond, extends only to the water’s edge; otherwise, if the pond is artificial. A deed described the boundary of certain land as running “ to the pond to a stake and stones— Held, that this restricted the grantee to the “ stake and stones,” if they, or their original location could be ascertained; if not, then his grant extended “to the pond.” Natural monuments must control both courses and distances.

On Exceptions from Nisi Prius, May, J., presiding. This was an action of trespass quare clausum. Plaintiff introduced a warranty deed from Benjamin Joy to Stephen Robinson, dated June 27th, 1823, duly acknowledged and recorded. The description only is material, and was as follows: “A certain parcel of land in Belmont, (now Morrill,) being lot No. 80, according to survey and plan of Noah Prescott, made for Benjamin Joy in 1822 and 1823, and bounded as follows, viz.: Beginning at the southwest corner of Jacob Dolliff’s lot at a beach tree; thence south 84 degrees east 156 rods to the pond to a stake and stones; thence southerly on said pond about 80 rods to a stake and stones at the southeast corner of said lot; thence south 80 degrees west 82 rods to the road; thence north 20 degrees west on said road 32 rods to a stake and stones; thence south 80 degrees west 80 rods to a beach tree; thence north 10 degrees east on the west line of lot, 88 rods, to the place of beginning; containing seventy-five acres, more or less, as surveyed by said Prescott.” Mr. Miller, the surveyor appointed by the Court, prepared the plan which bears his signature. It was admitted that plaintiff had this title. The following plan of Prescott was introduced by plaintiff. The dotted lines are added: — Plaintiff introduced evidence that defendant entered upon the bog lying within the side lines of said lot 80, (if they are to be extended across the bog as represented in said Miller’s survey,) at the time alleged in the writ, and picked cranberries, which was the trespass complained of; nominal damages only were claimed. Defendant, to show his title to the bog and cranberry patch, introduced deed from Wm. D. Sohier, to himself, dated May 10, 1854, duly acknowledged and recorded, conveying many parcels of land in said Belmont, (now Morrill,) and among other clauses in the description is the following, which is all that is material in the case: “ Also that part or the whole, as the case may be, of the “Cross pond,” and bog, meadow and upland adjoining thereof, which is not by express terms, or by implication of law, included in any conveyance or conveyances made by the late Benj. Joy, or any parties interested in his estate, of lots abutting thereat, and to which no other party or parties have any right or title.” It is admitted that the place where the cranberries grew, either passed to Robinson and to plaintiff, under Joy’s deed of June 27, 1823, or to defendant, under his deed above recited. There was evidence from both sides that there was at the margin of the bog and upland, in various places, a natural embankment, which the witnesses called a “seawall,” but which was disconnected and not continuous, but these were merely vacant places where there was no such wall; and at one place there was below this wall or bank a strip of land like intervale extending into the bog, and upon which large trees were still growing; and that for fifty years there had been small growth upon the bog itself and still is. The defendant introduced evidence tending to prove that thirty years ago the water came up near to the foot of the “ sea wall,” in the rainy parts of the year, and that the ice in the winter did the same; witnesses stated it to be for seven or eight months in the year, and making up near to the margin of the bog and upland, where the side lines of the lot intersected said margin: — also, that a stake and stones with surveyor’s marks upon the stake, had stood about six or eight rods above the sea wall, on the line from the starting point in said deed to Robinson, (which starting point was undisputed by the parties,) near the end of the one hundred and fifty-six rods, which was seen by witness eight or ten years ago; that said stake appeared like a stake of some years standing when seen ten years ago; there was no other proof regarding said stake; and that there had been another stake corresponding, to wit, standing on the other side line at the margin of the bog and upland, but witness did not remember any marks upon it. Miller, the surveyor, testified, that the stake at the end of the. one hundred and fifty-six rods, was a few rods further from the starting point than one hundred and fifty-six rods, but not further than he had found to be the usual over-plus in re-measuring Prescott’s lines. There was also testimony that this last stake did not stand in the side line of the lot. This was all the evidence tending to show that either were corner stakes. Several witnesses who had lived near, stated that they never knew of either of the stakes. There was also testimony that a few years ago a dam was built below on the stream a quarter of a mile, that raised the water from one to four feet in the pond, which was maintained part of the year; also, that the bog had made into the pond within thirty years some two or three rods. Defendant’s counsel requested the Court to instruct the jury: — First, That if they found that there was an old stake standing at the end of the one hundred and fifty-six rods, the distance named in the deed, bearing upon it surveyor’s marks, and other indications of the character of the monument named in the deed, in the absence of all proof to the contrary, the presumption would be that it was the stake referred to in the deed. Second, The burthen of proof to show that this was not the stake named in the deed, was upon the party alleging such to be the fact. Third, That the stake is the particular monument, and that the phrase “at the pond,” “or to the pond,” is only indicea of the place where the stake stood; and if a stake is proved to have existed at the place where the pond was at the time of the deed, even if it only reached that point at the time of freshets, under no legal hypothesis could they go beyond the stakes named in the deed. Fourth, That if the pond cannot be reached at all, except by abandoning the line named in the deed, then they are controlled by courses and distances. The Court declined to give the first instruction, and the second, in the terms requested, but instructed the jury, “that plaintiff must make out affirmatively, the burthen of proof being upon him, where the monument named in the deed stood, and that the monument, referred to in the deed, included the place which defendant entered upon.” The third requested instruction was given; and the Judge further instructed them, “that the pond and stake were the monuments named in the deed, that they were identical, and that if they could find them to coincide on the face of the earth, then they would be the true monuments; but if the stake could not be found, then the pond was to be taken as the most certain.” But if they should find that a stake was erected by the parties when the deed was made, or immediately thereafter, at the margin of the pond as it then was, and that a.t the time it was so erected, the pond was enlarged from any cause beyond its natural margin, then such stake or the place where it stood would be the true monument or boundary. Other appropriate instructions were given and not excepted to. And to the fourth request, the jury were instructed that if a slight variation of the course named in the deed from the monument begun at, would reach the pond named in the deed, then the line must be extended to the pond, although in its natural state the distance was greater than that given in the deed, unless they should find the pond was enlarged and a stake inserted as aforesaid. The verdict was for the plaintiff. To the foregoing rulings the defendant excepted. cited Nelson v. Butterfield, 21 Maine, 220. cited Bradley v. Rice, 13 Maine, 198, and cases there cited; Angell on Water Courses, p. 31, § 41; State v. Gilmanton, 9 N. H., 461; Waterman v. Johnson, 13 Pick. 261; 1 Fairfield, 238.