Hitchcock v. Eibby

• Decision Date: 27 July 1900
• Citation: 47 A. 269,70 N.H. 399
• Parties: HITCHCOCK v. EIBBY et al.
• Court: New Hampshire Supreme Court

47 A. 269

70 N.H. 399

HITCHCOCK

v. EIBBY et al.

Supreme Court of New Hampshire. Coos.

July 27, 1900.

Action by Dawn L. Hitchcock against Jesse F. Libby and another. Both parties move for judgment on a referee's report. Judgment for plaintiff.

Trespass quare clausum for breaking and entering the plaintiff's close and cutting down and carrying away wood. Facts found by a referee: The plaintiff owns lot No. 165, as appears on the plan of Gorham, and the defendants own the adjoining lot on the west, being lot No. 164 on the plan. The Peabody river runs northerly on or near the line between the lots. Since 1826 the river, in a part of its course, has run in a channel located several rods further east than its former channel. The alleged trespass was committed on a triangular piece of land bounded on the east by the new channel of the river, and on the west and north by lines particularly described in the writ. The plaintiff's chain of title, extending back to 1857, describes the land conveyed as lot No. 165, without giving the boundaries. The defendants' chain of title, extending back to 1839, describes the land conveyed as lot, or part of lot, No. 164, describing the boundary lines. The earliest deed in this chain, dated November 8, 1839 describes the southerly and easterly lines as follows: "Thence [i. e. from the southwest corner of lot No. 164] east on said line to the bank of Peabody river; thence down bank of said river to the Androscoggin river." About 1853 the occupant of lot 164 sued the occupant of lot 165 for carrying away timber which the former had cut upon the triangular piece of land above mentioned. The parties submitted the question of the location of the dividing line between their lots and the ownership of the timber to three referees, whose award was to be final. The referees decided that the dividing line was the new channel of the Peabody river. Both parties accepted the award and abided by it. The lots were owned by other parties in 1878,164 by T. H. Hutchinson, and 165 by J. R. Hitchcock, husband of the plaintiff. It did not appear that they knew of the award of 1853. The owner of lot 165 claimed that the dividing line was at an old log fence located westerly of the new channel. The referee "therefore" found there was a controversy as to the location of the line. A surveyor called as a witness by the plaintiff testified, in substance, that he was sent for to run a line, and was met by the parties, who informed him as to what they wanted, and took him to the starting point; that others were present, who were supposed to know about the starting point; that it was left to two of the outside parties to state where this point was; that after this was settled the parties requested him to run a line parallel with the town line, which he did, from the starting point to the Androscoggin river; that they found in this line, on the bank of the Androscoggin river, old spotted trees; that when they got there both parties expressed themselves as satisfied with the line, and directed him to reverse the course and run the line back, spot trees, set stakes, and make a notch in the bridge to mark the line, all of which was done, the parties assisting in setting the stakes; that he made a memorandum of the transaction as follows: "April 29, 1878, ran agreed line between T. H. Hutchinson and J. R. Hitchcock, between lots 164 and 165 in Gorham;" and that he designated it as an "agreed line" because both parties were satisfied with it, and directed him to spot the line and assisted in setting the stakes. The referee took a view which disclosed a mark on the bridge, a pin set in a rock having the appearance of a monument, stakes, and spotted trees, all corresponding with the line run by the surveyor. The owner of lot 164 has pointed out the pin, the stakes, and spotted trees as being in the surveyor's line; and the owner of lot 165 has pointed out the mark on the bridge, and claimed to it. From the foregoing evidence the referee found that the parties agreed to the line so run. He also found that the owners of lot 165 have claimed to that line ever since, but that the owner of lot 164 (Hutchinson) did not recognize it as the true line, for he claimed at different times that his line was Peabody river, cut wood on the tract in dispute after 1878, and deeded his land, by a warranty deed, as bounded by the river. All the evidence relating to the line of 1878 was received subject to the defendants' exception. This line is west of the new channel of Peabody river, and, if the parties are bound by it, the defendants are guilty as alleged. The wood cut by the defendants was worth on the stump $30.15; after cutting, on the lot, $43.52; and in the market, $58.52. The...