Brown v. Mccaffrey

• Decision Date: 13 July 1948
• Citation: 60 A.2d 792
• Parties: BROWN v. McCAFFREY et al.
• Court: Maine Supreme Court

60 A.2d 792

BROWN

v.McCAFFREY et al.

Supreme Judicial Court of Maine.

July 13, 1948.

Exceptions from Superior Court, Kennebec County.

Plea of land by Rolande J. Brown against Mark T. McCaffrey and others. Plea was heard by referee who dismissed it and entered judgment for defendant. Objections were filed to acceptance of report and, on its being accepted, exceptions were allowed.

Exceptions overruled.

McLean, Southard & Hunt, of Augusta, for plaintiff.

Goodspeed & Goodspeed, of Augusta, for defendants.

Before STURGIS, C. J., THAXTER, MURCHIE, TOMPKINS, FELLOWS, JJ., and MURRAY, Acting Retired Justice.

MURRAY, Acting Retired Justice.

This is a plea of land. It was heard by a referee, who dismissed it and entered judgment for the defendant. Objections were filed to the acceptance of the report and, on its being accepted, exceptions were allowed.

The dispute between the parties is as to the line dividing their lots, the plaintiff being the owner of the west lot, No. 28, and the defendant the east lot, No. 26.

In the year 1855 a plot of land composed of both these lots was owned by Ephraim Ballard who, February 15, 1855, conveyed to the defendant's predecessors in title the east lot No. 26. The material portion of the description in that deed follows: ‘Being all that part of lot * * * which lies easterly of a straight line drawn from the south line of Winthrop Street southerly by the west end of the main body of the house on the lot hereby conveyed, keeping and preserving the distance of fifteen (15) feet westerly therefrom, and continuing this course across the lot * * * together with a right to a passageway out by the north side of the Baptist Meeting House, which passage shall be limited on the southerly side, by a line drawn from the northwest corner of the main body of the house hereby conveyed * * * my stable is to remain where it now stands until it is either removed, taken down, or destroyed, without charge.’

The plaintiff took a number of exceptions, all of which he did not press in argument. We have considered all which he pressed.

Exception 1. That the referee erred in failing to interpret the phrase in the deed: ‘keeping and preserving the distance of fifteen (15) feet westerly therefrom’ and in not determining ‘whether fifteen (15) feet from the main body of the house’ means (15) feet perpendicular from said main body, or fifteen (15) feet due west therefrom.

The plaintiff contends that it means fifteen (15) feet due west, which would bring the dividing line nearer the house than would fifteen (15) feet perpendicular, which is the contention of the defendant.

The following rough plans might make the above explanation more clear.

‘It is the general rule that the intention of the parties, ascertained from the deed itself, if consistent with the rules of law, prevails'. Pelletier v. Langlois et al, 130 Me. 486, 490, 157 A. 577, 578.

The referee found that the west line of the McCaffrey lot was established by the deed given in 1855, recorded in Vol. 197, Page 119, Ballard to Sawyer and Bangs, and that line has not since been changed. The evidence justified him in so finding, and the further finding that that line on the face of the earth to be the one now relied upon by the defendant.

The evidence discloses that the parties to the above deed gave three monuments,-the south line of Winthrop Street, the west end of the main body of the house on the lot conveyed, and Court Avenue. They also gave courses from the monuments,-southerly from the south side of Winthrop Street to Court Avenue, westerly from the main body of the house.

It is plain that no matter whether Winthrop Street runs due east and west, or in a generally easterly and westerly direction, that the parties, for the purposes of the deed, considered it to be running east and west, because they referred to its south line.

Next, almost without lifting the pen from the deed, they wrote of a line, the fifteen foot line, running westerly from the main body of the house to the northerly and southerly line running from Winthrop Street. They must have meant this westerly line to be the same westerly as Winthrop Street, in other words, to run parallel with Winthrop Street. It thus would meet at right angles the line running from Winthrop Street, as the defendant contends.

‘In the matter of identifying descriptions in deeds the words ‘southerly’ and ‘westerly’ are not always used to indicate a direction that is due south or west'. Cilley v. Limerock R. Co., 107 Me. 117, 77 A. 776, 777.

The referee had the right to, and did, construe the deed to find out what the parties to it meant.

Exception 2. That if the finding of the referee was that the word westerly in the deed was not be literally followed, it was error.

We have already answered that it is not error.

Exception 3. The Referee erred as a...