Haight v. Hamor

• Decision Date: 23 May 1891
• Parties: HAIGHT v. HAMOR.
• Court: Maine Supreme Court

22 A. 369

83 Me. 453

HAIGHT

v. HAMOR.

Supreme Judicial Court of Maine.

May 23, 1891.

(Official.)

Report from supreme judicial court, Hancock county.

Hale & Hamlin and Deasy & Higgins, for plaintiff.

Wiswell, King & Peters, for defendant.

WHITEHOUSE, J. Writ of entry to recover two parcels or strips of land situated on the northerly side of Duck brook, in the town of Eden. Both parties seek to derive title from John A. Hotchkiss, who was at one time owner of the land on both sides of Duck brook,—the plaintiff by a series of conveyances commencing with a deed from John A. Hotchkiss to Richard Higgins, dated September 19, 1838; and the defendant by a deed from Addie R. Hawley, the sole heir of John A. Hotchkiss, dated September 16, 1882. The contention between the two involves a construction of these two deeds.

By the former deed, given in 1838, John A. Hotchkiss conveyed to Richard Higgins 100 acres of land, more or less, situated principally on the northerly side of Duck brook. In this deed the description of the line "on the south-east by Duck brook" is as follows: "Beginning at the southern corner of the lot, and runs northerly to the saw-mill on said brook, including three-fourths of the upper saw-mill privilege and the whole saw-mill thereon; thence from the lower southerly mill-post, following down the brook four hundred and fifty-six feet, with four rods of land on the southern side of the brook; thence crossing the brook at right angles northerly, and down the stream within four rods of the brook, thirteen hundred and sixty-eight feet; thence crossing the stream at right angles southerly, and following down the stream within four rods of the brook, thirteen hundred and sixty-eight feet; thence crossing the stream at right angles northerly, and following the stream within four rods of it, seventy-six feet below the spiling of the old saw-mill dam; thence at right angles to the brook, and following the same to its mouth." It will be seen that, by the line thus established with reference to Duck brook, Higgins gave to the grantee two strips of land on the south side of the brook, and retained in himself two similar strips on the north side, as illustrated by the lines of the accompanying plan:

John A. Hotchkiss made no further conveyances of any part of this property during his life-time and at the time of his decease had title to these four-rod strips on the north side of the brook, the first being thirteen hundred and sixty-eight feet in length, and the second beginning at a point thirteen hundred and sixty-eight feet below the first, and originally extending to a point "seventy-six feet below the spiling of the old saw-mill dam."

The plaintiff claims that the four rods mentioned in the deeds are to be measured from the thread of the stream, and the defendant claims that the measurement should be from the side of the stream, above the ebb and flow of the tide, and from high-water mark where the tide ebbs and flows.

According to the terms of the report, the only question presented for the determination of the court is whether the northerly line of these four-rod strips is four rods from the center of the channel, or four rods from the side of the brook.

It is not in controversy that Duck brook is a small unnavigable stream; and it appears from an admission in the report that the tide flows into it for a portion of its length opposite the land of the defendant, and at low water ebbs entirely out of it.

There is a well-known general rule in the construction of deeds that, when a grant of land is bounded on such a watercourse, above the ebb and flow of the tide, the stream is to be regarded as a monument located equally upon the land granted and the land adjoining, and the boundary line will be in the center of such monument. In such case the land of the owner on each side of the stream is presumed to extend ad medium Slum aquae unless the language of the deed shows a manifest intention to stop at the water's edge. It is of course competent for the grantor to limit his grant as he will; he may include or exclude the entire width of the "monument, "by employing terms apt for that purpose.

In the interpretation of conveyances of land, as of other written instruments, the intention of the party is the real object sought. If the meaning is not clear, resort is had to rules of construction. Bradford v. Cressoy, 45 Me. 9; Erskine v. Moulton, 6(5 Me. 276; Ang. Water-Courses, § 23, and authorities cited. But there is no better principle in regard to all rules of construction, wherever applied, than to use them as assistants towards reaching the intention of the party, and to abandon them whenever it is apparent that they lead one side of that object. Small v. Allen, 8 Term R. 497. "It is difficult to say that there is more than one rule of construction that has not its exceptions; and that is, taking the whole instrument together, what does it mean?" Ide v. Pearce, 9 Gray, 350. If the intention is still doubtful, the deed may be examined in the light of the circumstances attending its execution, such as the actual condition, situation, and occupation of the property granted. Salisbury v. Andrews, 19 Pick. 250. It may also be interpreted with reference to the reason or motive upon which the grantor proceeded in giving the description in question, and from the end in view or the purpose which was designed. 2 Devi. Deeds, § 838. But the intent when apparent, and not repugnant to any rule of law, will control technical terms, for the intent, and not the words, is the essence of every agreement. In the exposition of deeds the construction must be upon the view and comparison of the whole instrument. Kent, C. J., in Jackson v. Myer. 3 Johns. 387.

In the case at bar, it is suggested by the defendant that, if the language of the deed can be said to be applicable either to the measurement from the center line or from the side line of the brook, then evidence aliunde is admissible to show which was intended, on the familiar principle that latent or objective ambiguities may be explained by extrinsic...