Henshaw v. Mullens

• Decision Date: 23 October 1876
• Parties: Eli F. Henshaw v. Stephen Mullens
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

121 Mass. 143

Eli F. Henshaw v. Stephen Mullens

Supreme Court of Massachusetts

October 23, 1876

[Syllabus Material]

Worcester. Writ of entry to recover possession of a parcel of land in Warren. Plea, nul disseisin. Trial in the Superior Court before Gardner, J., who allowed a bill of exceptions in substance as follows:

The issue was as to the true boundary line between the demandant's lot and that of the tenant for a space of about seventy rods, there being no dispute as to the other parts of the line. The lots of the demandant and tenant between which the like in dispute runs, were formerly parts of the same farm, known as the Chadwick farm, which became the property of Makepeace and Bosworth as tenants in common. They made a conveyance to the tenant of the western portion of the farm, by a deed in which the easterly line was described as follows, the portion now in dispute being printed in italics: "Commencing at stake and stone on the east side of meadow owned by J. W. Talbot; thence north 63 1/4[degree] east sixteen rods and twenty-two links to a large rock; thence north 10 1/2[degree] east eighteen rods and three links to a corner of a wall; thence north 76[degree] west two rods and twenty-three links; thence north 5[degree] east forty-two rods and sixteen links; thence north 21 1/4[degree] east six rods and eleven links, to the end of a wall; thence northerly 70 rods, to land of E. Flagg; thence by land of Flagg to land of Josiah Henshaw; thence by land of said Henshaw to the road." This deed also contained the clause: "It being agreed that said Mullens, his heirs and assigns, shall maintain the northerly half part of the fence between said piece of land and the adjoining land of said Bosworth and Makepeace." A plan of the land was introduced at the trial, the material part of which is printed in the margin. *

UNKNOWN (Image Omitted)

Subsequently Bosworth having conveyed his interest to Makepeace, the latter conveyed the portion of the farm lying easterly of Mullens's line to the demandant, by a deed in which the description of the western boundary was as follows: "By land of Talbot to land of Stephen Mullens; thence northerly on said Mullens to land of Flagg; thence northerly on said Flagg to land," &c.

The demandant contended that the line described in the tenant's deed as running "northerly seventy rods to land of E. Flagg," was an irregular line, and ran N. 6 3/4[degree] W. 26 rods, thence N. 19[degree] W. 18 rods, thence N. 4 3/4[degree] W. 10 rods, thence N. 10 1/2[degree] W. 8 rods, thence N. 16 1/2[degree] W. 8 rods. The tenant contended that it was a straight line.

The demandant put in evidence showing that there was, at the time of the conveyance to the tenant, on the irregular line, an old fence much decayed and fallen, and that on the rest of the tenant's easterly line was a stone wall; and offered parol evidence of the acts and declarations of the tenant since he took his deed, as to the old fence being the boundary between the land of the demandant and that of the tenant, and of his treatment of the old fence as said boundary, with a view and for the purpose of showing the construction placed by him on the deeds in question, and on his deed as to his true easterly line at this point. The tenant objected to this evidence to prove that the line described as "thence northerly 70 rods to land of E. Flagg" could be the line of the old fence or other than a straight line. The judge overruled the objection and admitted the evidence.

The line by the old fence measures seventy rods. The straight line, as claimed by the tenant, measures seventy rods, nine links, and this line strikes Flagg's land six or eight feet westerly from the corner of Flagg's wall.

At the conclusion of the testimony, the tenant asked the court to rule as follows: "1. The deeds, construed together, fix the disputed line between the parties so as to preclude the possibility of the old fence being the boundary. 2. Under the circumstances surrounding the case, the deeds are to be construed to give Mullens a line from the end of the stone wall to Flagg's corner."

The judge refused so to rule, but instructed the jury as follows "The acts and admissions of the tenant as to the construction given by him as to the boundary are to be considered by you, with the other evidence...