Adams v. Marshall

• Decision Date: 10 January 1885
• Parties: Charles W. Adams v. Ansel C. Marshall
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

138 Mass. 228

Charles W. Adams v. Ansel C. Marshall

Supreme Judicial Court of Massachusetts

January 10, 1885

Argued September 18, 1884. [Syllabus Material] [Syllabus Material] [Syllabus Material]

Hampshire.

Tort for breaking and entering the plaintiff's close in Hadley, and cutting off a portion of a barn standing partly thereon and partly on the adjoining land of the defendant. Answer: 1. A general denial. 2. That the barn was on land conveyed by the plaintiff and one Joseph H. Adams to the defendant, as the former homestead of Joseph Adams, by deed dated April 1, 1874. 3. That, if the barn was not on land included in said deed, it passed as appurtenant to the homestead. Trial in the Superior Court, without a jury, before Knowlton, J., who allowed a bill of exceptions, in substance as follows:

The land described in the plaintiff's declaration was a narrow strip, two rods in width, running back from a highway in a northerly direction, its western line being twenty-eight rods and some links, and its eastern line being a little over twenty-seven rods. The lot was known as the Tower lot.

The deed from the plaintiff and Joseph H. Adams to the defendant, referred to in the answer, was a warranty deed; it conveyed by metes and bounds a parcel of land, described as "containing sixteen acres of land, more or less," and as "being the former homestead of Joseph Adams." The deed contained this clause: "The same is conveyed, however, subject to the provisions in the will of the late Joseph Adams for the support of his widow, Rebecca E. Adams, so far as relates to her use and occupancy of the house and garden, but no further."

There was no dispute that this deed conveyed to the defendant land east of the Tower lot, and also land north of it, and north of a lot lying west of the Tower lot, and known as the Amanda Smith lot. A copy of a portion of a plan used at the trial is printed in the margin. ^[*]

The main question in the case was whether the deed to the defendant included or excluded the Tower lot. The deed described the premises as bounded by a line beginning at the southeast corner of the premises, and thence running by metes and bounds to the northwesterly corner of the Amanda Smith lot, and thence "east and south about eighty-six rods on the said Amanda Smith lot and Samuel Tower lot, so called, to the highway first mentioned, thence east about twenty rods on said highway to the first mentioned corner." It appeared from the plan used at the trial that the line described as running east and south, if it excluded the Tower lot was eighty-six rods and two links in length, and if it included the Tower lot it was eighty-seven rods and fourteen links. It further appeared from said plan, that if the line described as running "east about twenty rods" ran from the east side of the Tower lot it was sixteen rods and fifteen feet long; if from the west side it was eighteen rods and fifteen feet long.

It appeared in evidence, that, at the date of the deed to the defendant, no monument stood on the land at the end of any of the lines given in the deed, and there was no evidence where any monument had stood.

The plaintiff put in evidence certain deeds from which the following appeared: In 1841, Joseph Adams bought of Alpheus Osborne a tract of land described as containing sixteen acres, more or less, and as bounding on certain roads, and lands of other persons, but giving no distances. By his will, dated February 13, 1863, and admitted to probate in 1864, he devised to his son Benjamin "the dwelling-house and other buildings where we now live, together with about sixteen acres of land, being the same with the improvements that I purchased of Alpheus Osborne," subject to the use and occupancy of a part devised to the testator's wife, and on condition that Benjamin should provide her with a good and comfortable support and maintenance during widowhood. The residue of the testator's real and personal estate was devised to his sons, Benjamin and Levi.

In January, 1872, Benjamin, in part consideration that the grantees would maintain and support the widow of Joseph Adams, according to the provisions of the will of Joseph, conveyed to Joseph H. Adams and Charles W. Adams "that certain parcel of land, containing sixteen acres more or less, conveyed to me by the last will and testament of the late Joseph Adams, deceased, . . . . with one half of the house in which I now live, and one fourth of all other buildings on the above-described parcel of land." The description in this deed was similar to that in the deed to the defendant. The last two lines were as follows: "Thence east and south on the Amanda Smith lot and Samuel Tower lot, belonging to said Benjamin and Levi, to the highway leading past my dwelling-house; thence east about twenty rods to the first-mentioned corner."

In May, 1853, Samuel Tower conveyed the Tower lot to Benjamin, Joseph, and Levi Adams; and in November, 1858, the Amanda Smith lot was conveyed to the same persons. In August, 1872, Benjamin and Levi Adams conveyed the Smith and Tower lots to the plaintiff, reserving to the grantors "the buildings thereon consisting of barn and sheds." These buildings, in 1874, became the property of Joseph H. Adams and the plaintiff, and, in 1880, Joseph H. sold them to the plaintiff.

The barn in question was the only one, except a tobacco barn, near the dwelling-house, or used in connection with it or with the Joseph Adams homestead. It was thirty-six feet square, and stood east of the Tower lot on the same lot with the house in May, 1853, when Samuel Tower conveyed the Tower lot to Joseph, Benjamin, and Levi Adams, who were then doing business as copartners, under the firm name of Joseph Adams & Sons, and were carrying on the farm, including the land sold to the defendant. The plaintiff put in evidence that this firm, in June, 1853, added somewhat to the old barn after moving it in part on to the Tower lot, then just purchased, but no part of it was west of the Tower lot; that it remained in the changed position when cut in two by the defendant in the spring of 1883. It appeared that said Joseph and Benjamin occupied the house together for many years till 1864 (when Joseph died), and used the barn in question, with their house, as a part of the homestead of Joseph Adams; that said barn was also used by Joseph, Benjamin, and Levi in connection with all the land shown on the plan after the Amanda Smith lot was conveyed, in 1858, and with other land they owned in the vicinity; that thereafter all the land shown on the plan was used together for a common purpose, that of tilling or mowing.

There was evidence that, when the Tower lot was conveyed, in 1853, there was a fence on the easterly side of it, which fence was taken down immediately after such conveyance; that the barn which previously stood on the Adams homestead lot was moved on to the Tower lot.

Shortly after the defendant went into possession of his land, the plaintiff told him that his title did not cover the whole barn. The plaintiff went with a surveyor, taking the deeds of the Amanda Smith and the Tower lots, and ran out a line as the line between the Tower lot and the homestead lot, which line the surveyor testified was the line the defendant used in cutting the barn, and that he did not cut west of it. It appeared that the plaintiff and the surveyor drove and left some stakes on this line so run by them. There was evidence that the defendant told the plaintiff he was going to cut off the easterly part of the barn up to the said staked line, and that the plaintiff said the defendant had a right to take away the defendant's part of the barn, but that one of the stakes on the said line had been moved; that the defendant ascertained by said surveyor thereafter, who went upon the premises and measured and sighted to ascertain the truth, that none of the stakes had been moved, and cut up to said line, but not west of it, and removed the part of the barn east of said line. The plaintiff contended that he told the defendant whatever the law would allow him to do he could not object to. It was admitted that the cutting was done in a workmanlike manner. The barn floor ran through the barn from north to south, and was eleven feet wide, having a bay for hay on the easterly side of it, and stalls, with a scaffolding for hay over them, on the westerly side of the floor. The entrance doors were on the northerly and southerly sides. Soon after the defendant went into possession in 1879, the plaintiff took possession of the barn floor except a strip through on the easterly side of it one foot wide, and put up timbers on said floor ten feet in width through the barn to hang tobacco on, and left the defendant to use only said strip of floor one foot wide, and the part of the barn east of it, which the plaintiff claimed was up to his line of ownership, and was all the defendant was entitled to under his deed.

The plaintiff contended that the line in dispute should run according to the easterly line of the Tower lot. It appeared that the defendant cut west of that line two feet four inches at one end and one foot eight inches at the other. The defendant contended that the line should run according to the westerly line of the Tower lot, and asked the judge so to rule. The judge declined so to rule.

The defendant offered oral evidence to show that the intention of the parties was that the Tower lot should pass to the defendant by this deed, which evidence was excluded.

The defendant asked the judge to rule that the barn passed to the defendant as parcel of the Joseph Adams homestead, and as appurtenant to said homestead; that the plaintiff had no right or servitude of support for the part of the barn which was on the plaintiff...