Coleman v. Lord

• Decision Date: 25 February 1902
• Citation: 52 A. 645,96 Me. 192
• Parties: COLEMAN v. LORD et al.
• Court: Maine Supreme Court

52 A. 645

96 Me. 192

COLEMAN

v. LORD et al.

Supreme Judicial Court of Maine.

Feb. 25, 1902.

(Official.)

Exceptions from supreme judicial court, York county.

Action by Walter H. Coleman against Hartley Lord and others. Verdict for defendants, and plaintiff excepts. Exceptions overruled.

Trespass for breaking and entering plaintiff's close, situated in Kennebunkport, and described as follows: "Bounded southerly by Beach avenue, so called; westerly by lot number twenty-one on the plan of property of the Kennebunkport Seashore Company; northerly by Fort lane, so-called; and easterly by lot number eighteen on said plan."

The writ alleged that defendant broke down, damaged, and spoiled 150 feet of fence and trellis work of the plaintiff, belonging to and inclosing said close.

The plea was the general issue, with a brief statement setting out, in effect, that defendants were officers and agents of the Kennebunkport Seashore Company, grantor in the deed to the plaintiff of the premises described in the writ, which company previous to the date of said deed was the owner of a large tract of land, of which plaintiff's close was a part; that said company had in 1883 divided said tract into lots and private ways, and made and recorded a plan thereof, which is the same plan referred to in plaintiffs writ; that said Fort lane was one of said private ways, and the premises described in the writ were two of said lots; that at the date of said deed to plaintiff and said pretended trespass said company was, ever since has been, and now is the owner of several lots on Fort lane, and various other of said ways connecting therewith; that the fence referred to in plaintiff's writ at the time of the alleged trespass was within the limits of said Fort lane; that the trellis referred to was a building, and the portion of the same which was removed was also within the limits of said Fort lane; that whatever was done in the premises by said defendants was done by them as officers and agents of said company; and that plaintiff had no right, title, or interest in and to said Fort lane, other than the right to pass over the same.

After the evidence was taken out, the presiding justice directed the jury to find a verdict for the defendant, which was done. To this order and ruling the plaintiff took exceptions.

Argued before WISWELL, C. J., and EMERY, STROUT, FOGLER, and POWERS, JJ.

G. F. & L. Haley and A. E. Haley, for plaintiff.

J. W. Symonds, D. W. Snow, C. S. Cook, C. L. Hutchinson, H. Fairfield, and L. R. Moore, for defendants.

FOLGER, J. This is an action of trespass quare clausum, and comes to this court upon exceptions to an order of the presiding justice directing the jury to return verdict for the defendant which was accordingly done.

The locus was conveyed to the plaintiff by the Kennebunkport Seashore Company by deed dated June 6, 1888, and is described in the deed as "a certain parcel of land situate in Kennebunk, in said county of York, and being lots No. 19 and 20 upon a plan of lots dated September 13, 1883, and filed with York county deeds Sept. 17, 1883, Book of Plans No. 3, page 4, bounded and described as follows, viz.: Beginning at a stake on Beach avenue on said plan at the southeasterly corner of lot No. 21; thence northerly by said lot one hundred feet to Fort lane; thence easterly by said lane two hundred feet to the northwesterly corner of lot No. 18; thence southerly by said lot No. 18 one hundred feet to the above-named Beach avenue; and thence westerly by said avenue two hundred feet to the point begun at."

Fort lane is a private way, the fee of which at the time of the conveyance to the plaintiff was, and now is, in the plaintiff's grantor, the Kennebunkport Seashore Company. The plaintiffs northerly line is therefore the southerly side of Fort lane. Sutherland v. Jackson, 30 Me. 462, 50 Am. Dec. 633; Id., 32 Me. 80; Bangor House v. Brown, 33 Me. 300; Palmer v. Dougherty, Id. 502, 54 Am. Dec. 636.

In 1882 the Kennebunkport Seashore Company being the owner of a large tract of land which included the plaintiff's premises, and also what is now known as "Fort Lane," caused the tract to be surveyed and subdivided into lots and parks and streets, and caused the plan referred to in the plaintiffs deed to be made in accordance with the survey and recorded.

In June, 1888, the company conveyed to the plaintiff the lots described in his deed. In the fall of the same year the plaintiff erected a cottage upon the premises, and in 1891 or 1892 he built along his Fort lane line a fence and a building, in part of lattice work, all of which he claims are upon his own land. The defense contends that the fence so built was from six inches to a foot (varying at different points because of irregularities in the fence) over the plaintiff's line, and within the limits of the lane, and that the lattice wall was from six to seven inches within the limits of the lane.

In May, 1895, Mr. Hartley Lord, representing the Kennebunkport Seashore Company, of which he was one of a committee having the management of the company's land, and others acting under his directions, took down the fence and cut off the lattice wall to a line one inch within...