Bloch v. Pfaff

The owner of a tract of land, bounded south by E. Street and west by P. Street conveyed the eastern portion to A., by deed bounding it south on E. Street thirty feet and west on the grantor’s other land; and afterwards the rest of the tract to B. by deed bounding it south on E. Street sixty-six feet and west on P. Street. The southern line on E. Street of the whole tract was, in fact, eighteen inches more than ninety-six feet. Held, that this excess of eighteen inches was not to be apportioned, but went wholly to B.

Writ of entry for a strip of land, lying on the boundary of the estates of the respective parties, on Eliot Street in Boston, and extending northerly from said street to the rear line of the estates. At the trial in the superior court, before Lord, J., it appeared that both parties claimed title from a common source, Mary Smith, who in 1781 owned a tract of land bounded southerly by Eliot Street, and extending from Pleasant Street on the west to the west line of land of heirs of John Eliot on the east; that in that year there was conveyed to John Innis a parcel of this tract, described in the deed to him as thirty feet in width in front on Eliot Street, as of the same width in the rear, and as bounded on the east by the line of land of the heirs of John Eliot and on the west by other land of the grantor; that subsequently there was conveyed to Nathan Whitmarsh another parcel, adjoining on its eastern boundary the parcel conveyed to Innis, and described in the deed as thirty feet in width on Eliot Street, that lastly there was'conveyed to John Tuckerman the remaining parcel, adjoining on its eastern boundary the land conveyed to Whitmarsh, and described in the deed as thirty-six feet in width on Eliot Street and as bounded westerly on Pleasant Street; and that by sundry mesne conveyances the parcel conveyed to Innis had become vested in the demandant, and the other two parcels in the tenant. The line of Pleasant Street is now indicated by certain structures abutting thereon; the demandant contended that this line coincided with the boundary of the street at the time of the above recited deeds ; and it was admitted that a measurement of sixty-six feet easterly on Eliot Street from said line would terminate on the westerly line of the strip claimed by the demandant. “ The tenant offered to show that the line of land of heirs of John Eliot above mentioned was a well defined and fixed monument, locating the eastern boundary of the demandant’s estate; but the demandant contended that this line was too uncertain and indefinite to constitute a monument from which measurement could be made.” The distance on Eliot Street from the line which the tenant offered to show as the true eastern boundary of the demandant’s land to Pleasant Street was in fact about eighteen inches more than ninety-six feet, and a measurement of thirty feet westerly on Eliot Street from such line would not include any part of the strip claimed by the demandant. “ The land of the demandant was occupied in part by an old wooden dwelling-house fronting on Eliot Street, which appeared to have been in existence as early as the year 1800. The land on the westerly side of this house, continued by a fence or shed to the northerly line of the estate, had for many years formed a part of the inclosure used as the yard of the Whitmarsh house, on the easterly side of the Whitmarsh estate, but the gutter on the west side of the demandant’s house had overhung by several inches the walls of the house,' and a strip of land in said inclosure, of the width of the gutter; the wall of the demandant’s house, continued by said fence or shed, forming the easterly limit of said inclosure. No windows, doors or other openings or means of communication were ever known to exist between these two estates on this boundary. “ The tenant contended that the demandant’s grantors built this house upon the extreme westerly verge of their land; that the true line of division and occupation was along the baseboard of this house, on its westerly side; that the eaves and gutter along this side of the house always overhung the land granted to her; but that she and her grantors occupied the land under the gutter, up to the base-board óf the demandant’s house, for the ordinary purposes of a yard to the dwelling-house on her land ; that no adverse or exclusive occupancy of the land under those eaves had been maintained by the demandant and his grantors, except by the overhanging as aforesaid; and she offered evidence tending to show such occupancy by her and her grantors, and that the water flowing into this overhanging gutter had been conducted around and upon the land of the demand-ant in the rear of his house; that when, on one or two occasions, this water had fallen on the land under these eaves, complaint had been made against it as an encroachment on the Whitmarsh estate; and that, upon such complaint, the water had been turned by the demandant and his grantors, so that it was conducted around and fell on the land in the rear of the demandant’s house. The demandant contended that this had been done as a neighborly act, and never yielded as a right, and the evidence on this point was conflicting.” The judge ruled, “ upon the facts as agreed, (the three estates thus formed out of the original estate of Mary Smith, and each containing somewhat more in extent of territory than the deeds called for, having been used as stated in the evidence,) that the house of the demandant, erected about 1801, was upon land granted to the demandant, which extended to the exterior limits of the eaves of the house, towards the tenant’s estate; that there was no sufficient evidence of a disseisin by the tenant or her grantors, of the land under the eaves of the demandant’s house, to divest the demandant of his title thereto; and that the line by the exterior line of the eaves of the house was a straight line to the western boundary ” The jury returned a verdict for the demandant, for the strip of land of the width of the eaves of the demandant’s house, continued to the rear of the estate, and the judge reported the case to this court “ for their determination of the correctness of the ruling.”