Dame v. Fernald

• Decision Date: 06 February 1934
• Court: New Hampshire Supreme Court
• Parties: DAME et al. v. FERNALD et al.

171 A. 369

DAME et al.

v. FERNALD et al.

Supreme Court of New Hampshire. Carroll.

Feb. 6, 1934.

Exceptions from Superior Court, Carroll County; Scammon, Judge.

Bill by Bertha L. Dame and others against Nellie M. Fernald and others. Ruling in favor of plaintiffs, and defendants bring exceptions.

Decree for defendants.

Bill in equity, to determine the boundary between adjoining lands of the parties, and for the assessment of damages for alleged trespasses upon the plaintiffs' close. The facts were found by a master.

The plaintiffs are the owners of a tract of land in Jackson, the western end of the northerly boundary line of which is the southern boundary of a tract of land belonging to the' defendants.

In 1900 the defendants cut over their southern boundary onto land of the plaintiffs, and since that time have cut and removed practically all the merchantable growth on that portion of the westerly part of the plaintiffs' land which is here in dispute. In 1903 the plaintiffs brought an action of trespass q. c. f. against the defendants, which action was settled by an agreement signed by the parties and filed in court at the June term, 1904, of the superior court.

Under the terms of this agreement "the division line between the plaintiffs' land and the land of the defendants" was established by a line described as running on a given course from a point, the location of which is not in dispute. When this line was surveyed soon after the agreement was signed, it was found to run from about the mid point of the plaintiffs' westerly line to the southeasterly corner of the defendants' land. This put that part of the plaintiffs' land upon which the defendants had entered, upon their side of the agreed line. At the time this line was surveyed, its termini were marked with permanent bounds. The plaintiffs did not discover that this line had actually been run or marked until 1925.

The plaintiffs believed when they signed the agreement that they were gaining land rather than losing it, and this belief the master finds to have been warranted by a clause in the agreement which reads: "It is intended by this agreement that the plaintiffs shall have a strip of land across the westerly end of their lot twenty (20) rods wide, and it is hereby understood that the courses hereby given when run * * * will give to the plaintiffs a strip of land twenty (20) rods wide. * * * "

Not long after the agreement was entered into, the plaintiffs discovered that they had thereby lost rather than gained land, but they took no steps to have the agreement altered to conform to their understanding until this bill was filed in 1927.

The master found that no fraud was imputable to the defendants.

The master concluded "that the defendants * * * have not been in open continuous and exclusive possession" of that part of the plaintiffs' lot in dispute "at any time for a period of twenty years, and that the plaintiffs are still the owners of said tract." But he further found that: "If the Court should rule that the defendants acquired color of title to the disputed tract by virtue of the agreement of 1904, * * * then (they) have been in open, continuous and exclusive possession of the tract in dispute for a period of twenty years from the time said agreement was made in 1904."

The court ruled "that the defendant did not acquire title," to the land in dispute, "by reason of the agreement of June 23rd, 1904, and has not since obtained title by prescription," and awarded the plaintiffs nominal damages of one dollar since there had been no act of trespass within six years.

The defendants' bill of exceptions was allowed by Scammon, J.

Ernest H. R. Burroughs, of Boston, Mass., and Ralph S. Marsh, of Conway (Ernest H. R. Burroughs, of Boston, Mass., orally), for plaintiffs.

Conrad E. Snow, of Rochester, for defendants.

WOODBURY, Justice.

In order for an instrument to operate as color of title, it must purport to convey the property in dispute, either to the person claiming thereunder, or to one in privity with him. The parties entered into the agreement of 1904 for the purpose of establishing the bound between their adjoining tracts. By their agreement they each intended to confirm the other's title up to the line agreed upon. The practical effect of this agreement was a purported conveyance, each to the other, so that, so far as the parties were concerned, each had title up to the line.

That the agreement was not executed with the formalities required of a conveyance of land, or in accordance with that required of agreements concerning disputed boundaries (Pub. Laws, c. 219, §§ 27-29), is not material, since invalidity to operate according to its tenor is the distinguishing feature between color of title, and title itself. Farrar v. Fessenden, 39 N. H. 268; Barker v. Company, 78 N. H. 160, 97 A. 749, 751. Nor does failure to record the instrument prevent it from operating as color of title. Bellows v. Jewell, 60 N. H. 420.

The instrument must, however, define the...