Bemis v. Bradley

• Court: Maine Supreme Court
• Writing for the Court: PATTANGALL, J.
• Citation: Bemis v. Bradley, 126 Me. 462, 139 A. 593 (Me. 1927)
• Decision Date: 16 December 1927
• Parties: BEMIS v. BRADLEY.

139 A. 593

BEMIS

v. BRADLEY.

Supreme Judicial Court of Maine.

Dec. 16, 1927.

Report from Supreme Judicial Court, Oxford County, at Law.

Real action by Bert W. Bemis against David Bradley. On report. Judgment for plaintiff.

See, also, 139 A. 596.

Argued before WILSON, C. J., and PHILBROOK, DUNN, DEASY, STURGIS, and PATTANGALL, JJ.

Elias Smith, of Limerick, and A. J. Stearns, of Norway, Me., for plaintiff.

Hastings & Son, of Fryeburg, for defendant.

PATTANGALL, J. Real action. On report. Plaintiff is the owner of the western portion of lot No. 5 in the town of Stowe. Defendant is the owner of the eastern portion of the same lot. The dispute is as to the dividing line between them; the disputed territory including an area of between 4 and 5 acres.

Plaintiff claims the division line as one beginning at a point on the southerly side line of lot No. 5, 154 rods westerly of the town line dividing Stowe from Lovell, which is also the east line of No. 5, and running northerly 54.2 rods to the" north line of the lot. All of the land east of this line and embraced in the area of lot No. 5 is conceded to belong to the defendant.

Defendant claims that the division line begins at a point on the south line of lot No. 5, 14.4 rods westerly of the point of beginning claimed by the plaintiff, then running northerly 54.2 rods to the north line of the lot, terminating at a point 15.6 rods west of the line claimed by the plaintiff.

The title of both parties comes from a common source. Lot No. 5 was originally owned by Ann A. Barrows. In 1843 she conveyed to Eli Whitney "fifty acres off the east end of lot No. 5." The land thus acquired by Whitney was conveyed through a series of owners, by the same description, until the title finally came to this defendant, in 1902. In 1854 Ann A. Barrows conveyed to Ithiel E. Clay the portion of lot No. 5 not already sold to Whitney, and through a series of conveyances title to this property was finally acquired by the plaintiff in 1920.

Plaintiff bases his claim to the division line above referred to on an actual survey made recently; the line thus marked inclosing an area of slightly more than 50 acres. On this line there is evidence of spotted trees which indicates that, at some former time, a division line was run on this location. This evidence consists of a spotted post or stump on the south line of lot No. 5, the spots being described by the surveyor as very old; an old spotted beech stump about 12 rods northerly therefrom; another spotted beech stump about 10 feet farther north; a spotted beech about 30 rods still farther north, located 4 feet east of the line; and a spotted hemlock tree at the northerly end of the line. The surveyor testified that, if this line was accepted as the east line of the defendant's lot, it would inclose an area of between 50 and 51 acres. A computation of the inclosed area, however, using the measurements given appears to indicate a fraction over 52 acres.

Defendant claims a line based on the proposition that in April, 1906, the then owner of the plaintiffs land and this defendant located a line by agreement, nearly parallel with the line claimed by the plaintiff, and westerly therefrom a sufficient distance to include between 4 and 5 acres, in addition to the land conceded him by plaintiff.

It is a familiar and well-settled principle of law that a boundary line may, under certain circumstances, be permanently and irrevocably established by parol agreement of adjoining owners.

In Ames v. Hilton, 70 Me. 36, our court defined certain limitations within which a line may be so established:

"It is only where there are two or more monuments upon the face of the earth, each of which answers to the call of the deed, that proof of the one erected by the parties will govern; or where the parties run a line as of a certain course and distance, and then make a deed calling for a line of the same course and distance, intending it as the line run, or where the deed conveys a part of a lot by a line which shall embrace a certain quantity, and the parties have run and marked the line as embracing the quantity called for, and in cases similar in principle."

It is also well settled that a line agreed upon by the parties in interest, and occupied to for more than 20 years, is conclusive. May v. Labbe, 114 Me. 379, 96 A. 502. The early case of Moody v. Nichols, 16 Me. 23, states the rule to be "that the parties may agree upon a line of boundary, and when they have so agreed, and the possession is in accordance with it, such boundary after an acquiescence for so long a time, as to give title by disseizin, will not be disturbed."

Emery v. Fowler, 38 Me. 102, is authority for the further proposition that:

"Whether monuments are erected upon the face of the earth by the mutual agreement of parties, and a deed is given intended to conform thereto, or whether they are subsequently erected by them with intent to conform to a deed already given, those monuments must control, notwithstanding they may embrace more or less land than is mentioned in the deed."

This case is quoted in Knowles v. Toothaker, 58 Me. 172, as extending the doctrine of Moody v. Nichols to cases where possession had not been long enough to give title by disseizin, and the opinion further states that:

"When a line described in a deed as running from a given point, is soon afterwards located and marked upon the face of the earth by the parties, and thereafterwards the line thus established is recognized and treated by them as the true line, it is conclusive upon the parties and their assigns, although it be subsequently ascertained that it varies from the one given in the deed."

Moody v. Nichols and Knowles v. Toothaker, supra, rest, however, upon the theory that the acts of the parties evidence the intent of the conveyance rather than that the lines were established by agreement.

When doubt exists as to a dividing line between adjacent owners, the contemporaneous and subsequent acts of the parties, in establishing or recognizing a line as the line intended by the deed, are admissible and of probative force. Borneman v. Milliken, 123 Me. 488, 124 A. 200. But this situation is not before us. The line claimed by defendant was first surveyed in 1906. The conveyance from Barrows to Whitney, the original setting off of defendant's land from the remainder of lot No. 5, was in 1843. The intention of the parties to this early deed cannot be interpreted by the acts of their respective successors in title 63 years afterwards.

Plaintiff argues that the line claimed by defendant, even if established by agreement in August, 1906, would not be binding upon the then owners or their grantees until 20 years had passed, and that, his action having been brought in April, 1926, the necessary time had not elapsed to cause the agreement as to the line to become conclusive.

Authorities are at odds as to whether or not occupation up to an agreed line must be for the period required in cases of adverse possession in order that, the line so agreed upon may be conclusive. It has been stated as a general rule that acquiescence in a boundary line between contiguous owners, fixed by agreement, need not be for the full statutory period required to establish disseizin, but that such acquiescence for a reasonable period short of that time may be decisive as to the rights of the parties or their successors. 4 R. C. L. 129; 8 Ann. Cas. 85 note;. Riley v. Griffin, 16 Ga. 141, 60 Am. Dec. 726, and note; 110 Am. St. Rep. 686, note; 22 Am. St. Rep. 35, note; 83 Am. St. Rep. 793, note; 16 Ann. Cas. 150, note. But this view of the law is not universally accepted and we do...