Tyler v. Fickett

Barrows, J.

The fallacy of the positions taken by the defendant in opposition to the report of the referees consists mainly in the assumption that the phrases "continuation of the Odlin road, so called,” and "said Odlin road” in the deed from Willard Thompson to Thomas R. Thompson, dated October 16, 1852, under which the plaintiff derives title, and the phrase "Odlin road extended” in the deed of Willard Thompson to Erastus Gowen dated October 29, 1853, under which the defendant’s title accrues, so properly describe and definitely point out one of several wood roads, (made by lumbermen westerly of what was then the westerly terminus of the Odlin road to enable those who were lumbering on various lots in the vicinity to bring out their logs and lumber to that point,) as to exclude parol evidence to show that the grantor in those deeds (under whom both parties claim) and the grantee in the first applied those phrases to designate, not an existing travelled way, but the land covered by a preliminary survey for the extension of .the said Odlin road to Hermon line, made and staked out by the street engineers of the city of Bangor some time between February 2, 1852, and October 16, 1852, (when the first deed was given,) *415 but never in fact actually accepted or opened as an extension of said Odlin road. The call does not accurately describe the monument.

But on the other hand neither of these lumbermen’s wood-roads is, properly speaking, a continuation or an extension of "the Odlin road so called.” They begin upon the various lots on which the lumbermen were engaged, and run to the westerly terminus of the Odlin road but compose no part of "the Odlin road so called,” nor do they or either of them constitute an extension of it, existing or prospective. The road surveyed and staked out by the engineers from the terminus of the Odlin road to Hermon line would, when constructed, answer the call as a "continuation of the Odlin road” or "the Odlin road extended,” but it never was actually constructed, and here the case develops a latent ambiguity, to explain which parol evidence is admissible, and was we think properly received by the referees against the defendant’s objections. Crafts v. Hibbard, 4 Met. 438, 452 . Where the monument as found on the face of the earth answers the call in some but not in all particulars, the reference to it in the deed is not to be entirely rejected, but "parol evidence is admissible to show whether the monument partially but erroneously described was the one intended.” Abbott v. Abbott, 51 Maine, 575, and cases there cited.

The "traces of a travelled way” which the defendant insists should be regarded as the "continuation of the Odlin road” oras " the .Odlin road extended ” correspond with no such extension either as contemplated in 1852, at the date of the deed, or as constructed in 1864, long subsequent to both the conveyances from Willard Thompson in which these phrases occur. They certainly answer the call no better than that which was surveyed and staked out for a continuation but not constructed. One of several lumbermen’s wood-roads leading to a highway known by a distinctive appellation, cannot without doing violence to language be described as an extension of such highway. The identity of a monument existing on the face of the earth with one referred to in a deed is always a question of fact, and so far as the "traces of a traveled way” upon which the defendant relies are concerned, *416 it seems to have been decided adversely to him by the proper tribunal. We find nothing in the case to lead us to question the conclusion which the referees seem to have reached that neither of these wood-roads was "the Odlin road extended” or "the continuation of the Odlin road,” referred to in-the deeds. Resort must be had to existing circumstances and to the contemporaneous construction put upon the deeds by the parties interested to ascertain whereabouts on the face of the earth was the line thus erroneously designated. Stone v. Clark, 1 Met. 378; Wing v. Burgis, 13 Maine, 111.

The act of Erastus Go wen, under whom the defendant claims, in applying to Thomas R. Thompson for a deed of the land, in 1853, when about erecting the buildings upon the demanded premises is potent evidence against the claim which the defendant now asserts. If the defendant’s construction had not been known to be incorrect by both of Willard Thompson’s grantees, there would have been no pretence of title in Thomas R. Thompson to any land south of "the traces of the traveled way,” and Gowen who was dealing in the same year with Willard Thompson for a parcel of land bounded on the north by " the Odlin road extended” would never have made a verbal contract with Thomas R. Thompson to pay him seventy-five dollars for a parcel of land on the south side of the same road to set his buildings on, which would upon the defendant’s interpretation be included in Gowen’s purchase from Willard Thompson. But this he did when the whole matter was fresh in the minds of all the parties; and as late as 1871 he or his grantees paid Thomas R. Thompson a considerable portion of the contract price, and thus we have both a contemporary construction by the parties conclusively negativing that claimed by the defendant, and an act invalidating his plea of the statute of limitations, and showing that until a comparatively recent date the defendant’s possession was by permission of the plaintiff’s grantors.

Another matter which appears in the case strengthens the plaintiff’s position and helps to make it clear that the defendant suffered no wrong in the rejection of the wood-road as not being the monument named in the deeds as " the Odlin road extended.” *417 While monuments capable of being identified must always control courses and distances, the measurements of the lines whose courses and distances are given should not be disregarded in determining the identity of the monuments claimed to be found with those referred to in the deed. Looking at the length of lines and quantities of land given in the deeds to Thomas E. Thompson and Erastus Gowen respectively, it is obvious that the wood-road claimed by defendant as a monument could not have been the one referred to in those deeds without such a mistake in the measurements as would be well nigh unaccountable. If any error was committed by the referees in their finding, it was not one which gives the defendant any just cause of complaint.

Exceptions overruled. Report of referees accepted. Judgment for plaintiff accordingly.

Appleton, C. J., Virgin, Peters and Symonds, JJ., concurred.