Dodd v. Witt

• Decision Date: 25 March 1885
• Citation: 139 Mass. 63,29 N.E. 475
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Daniel Dodd v. Ivory Witt & others[2]

139 Mass. 63

29 N.E. 475

Daniel Dodd v. Ivory Witt & others^[2]

Supreme Judicial Court of Massachusetts

March 25, 1885

Argued September 9, 1884

Berkshire.

Writ of entry to recover a parcel of land in North Adams. Plea, nul disseisin. Trial in the Superior Court, before Gardner, J who directed a verdict for the demandant, and reported the case for the determination of this court. The facts appear in the opinion.

New trial.

S. P Thayer, for the tenants.

M. E Couch, (C. J. Parkhurst with him,) for the demandant.

C. Allen & Colburn, JJ., absent. Field, J.

OPINION

Field, J.

The demanded premises are a strip two rods wide on the westerly end of the lot described in the demandant's deed. The demandant derives title from Reuben Whitman, who in May, 1866, conveyed the premises to Thomas H. Lidford by a description as follows: "Commencing on the road at the southeast corner of the land that I gave D. H. Raymond a bond to convey; thence west 22 deg. 30 min. N. ten rods; thence south 22 degrees 30 minutes west four rods; thence east 22 degrees 30 minutes S. ten rods; thence south on the road to the place of beginning." The descriptions in the mesne conveyances are substantially the same. The road was four rods wide, and Reuben Whitman when he executed his deed owned the fee of it. The deed therefore conveyed the land to the centre line of the highway. Peck v. Denniston, 121 Mass. 17. O'Connell v. Bryant, 121 Mass. 557.

The tenants contended, that, by the construction of the deed, the side lines of the demanded premises extended ten rods from the centre line of the highway, or eight rods from the westerly side of the highway; or, if this were not the true construction, that there was an ambiguity in the description; and they offered "John Lidford, father of said Thomas H. Lidford, as a witness to prove that at the time of the execution of the above-mentioned deed from Reuben Whitman to Thomas H. Lidford, the said witness was present; -- and that said Whitman measured on the west line of the road above mentioned westerly eight rods, and fixed a monument at the northwest corner of the lot; thence southerly four rods to the southwest corner, and fixed a monument; thence southerly eight rods to the west side of the highway; thence on the highway to the place of beginning; -- that his son Thomas H. Lidford and himself built a fence across the west end of said lot from corner to corner, as indicated by the monuments thus erected, at the time of said deed to Lidford, which fence remained until after the demandant went into possession under his deed; -- that the land included within said measurement was all that Thomas H. Lidford purchased as he understood it at the time, except that he was told by Whitman that his grant really extended to the centre of the highway, which he was told was four rods wide." The court excluded this testimony, and ruled "that there was no ambiguity in the deeds offered by the plaintiff; that the monument called for 'on the road' was by the side of the road, and not the centre of the road;" and directed the jury to render a verdict for the demandant. This is a ruling that, by the construction of the deed, the lines extended ten rods from the westerly side of the road.

In Peck v. Denniston, ubi supra, Chief Justice Gray says: "The general rule is well settled that a boundary on a way, public or private, includes the soil to the centre of the way, if owned by the grantor, and that the way, thus referred to and understood, is a monument which controls courses and distances, unless the deed by explicit statement or necessary implication requires a different construction. Newhall v. Ireson, 8 Cush. 595. Fisher v. Smith, 9 Gray 441. Boston v. Richardson, 13 Allen 146. White v. Godfrey, 97 Mass. 472. Motley v. Sargent, 119 Mass. 231."

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