Kendall v. Green

• Decision Date: 16 March 1894
• Citation: 67 N.H. 557,42 A. 178
• Parties: KENDALL v. GREEN et al.
• Court: New Hampshire Supreme Court

42 A. 178

67 N.H. 557

KENDALL

v. GREEN et al.

Supreme Court of New Hampshire. Grafton.

March 16, 1894.

Trespass by Hiram W. Kendall against Harriet Green and others. Pacts found by the court. Judgment for defendants.

The defendants' premises adjoin those of the plaintiff on the east, and the contention relates to the location of the division line. William Green, the original owner of both lots of land, in 1850 conveyed a portion of the land now owned by the plaintiff to Joshua T. Kendall. Soon after, Kendall built a house upon his land. In 1854, Green conveyed to Kendall a strip of land situated on the east side of the tract previously conveyed, describing it as follows: "Commencing twelve and one-half feet east of said Kendall's house, and running parallel with said house twelve and one-half feet east of it, northerly and southerly, so far as said Kendall's land extends; meaning to convey to said Kendall a strip of land between the line above described and what we have before deeded to him." The plaintiff now owns the land conveyed to Kendall, and the defendants the land retained by Green. The plaintiff claims that the line above described is located 12 1/2 feet easterly of the easterly extremity of the eaves of his house, while the defendants insist that its location is the same distance from the body of the house. The land in dispute is about 18 inches in width. If the line is where the plaintiff claims it to be, the defendants are guilty. The plaintiff set fence posts on what he believed to be the true line, and spiked rails to them. The defendants knocked off the rails, and pulled up the posts. The plaintiff reset the posts, and thereupon the defendants sawed them off near the ground. They could have taken them out of the ground with as little labor as was used in sawing them off, but they had good reason to believe, if they took them up, the plaintiff would again set them on the same line; and they sawed them off to prevent their being reset. The court found the defendants guilty of trespass in destroying the posts, unless they had a right, under the circumstances, to saw them off.

Fling & Chase, for plaintiff.

Frank N. Parsons and James E. Barnard, for defendants.

PER CURIAM.¹ 1. The line in dispute is "twelve and one-half feet east of said Kendall's house," and the question is whether the distance is to be measured from the side of the house or from the eaves. The true test is, what did the parties mean by the language they employed? Probably all so-called legal rules of construction were intended to answer this question when it arises with reference to the language of contracts; and no difficulty or apparent injustice is found in their application when they are regarded merely as convenient, reasonable, and useful means of ascertaining the fact of intention, and not as unbending rules of law, to be applied without regard to the actual intention. In other words, they may defeat their own admitted purpose, when they are supposed to afford in all cases the only competent evidence of the meaning of language as used by parties in written contracts. Being reasonable, and in accordance with common experience in many cases, they may furnish strong evidence of the true construction of a contract in a particular case, but such evidence is not necessarily conclusive. "Legal rules of construction, so called, suggest natural methods of finding and weighing the evidence, and ascertaining the fact of intention (Rex v. Commissioners, 6 Adol. & E. 1, 7), but do not determine the weight which the evidence has in the mind, and do not establish a conclusion at variance with that reached by a due consideration of all competent proof." Edes v. Boardman, 58 N. H. 580, 592. It would be very convenient and useful if the question of intention could always be truly determined by the mere application of well-defined formulas, in the same way that a surveyor of lumber ascertains the exact length of a board by applying the foot rule. That courts, in some jurisdictions, may have fallen into the mistake of supposing they had the necessary means at hand, in the form of rules of construction, for mechanically ascertaining the intention of parties, is not evidence that such rules have, or ever had, the force of positive law. As the question to be solved is one of fact, it should be determined, like other questions of fact, by the aid of all competent evidence, and not by the exclusion of evidence otherwise competent, and the mechanical application of antiquated forms of expression erroneously supposed to express legal principles. If it has been held that the word "heirs," in a deed, for example, is necessary in order to convey a fee, it was not because the law of this state requires the use of the word, but because it was regarded as competent evidence of the intention of the parties, and conclusive, if not controlled by other evidence. When, however, it is stated as an unyielding and arbitrary principle of law, all other evidence is thereby excluded, and it as often operates to defeat as to promote and ascertain the real intention. "I really believe that almost every case determined by this rule, as applied to a devise of lands in a will, has defeated the real intention of the testator; for common people, and even others who have some knowledge of the law, do not distinguish between a bequest of personalty and a devise of real estate." Lord Mansfield in Loveacres v. Blight, Cowp. 352. "But when a ease arises where the intention of the grantor to convey a fee simple is clearly shown by other words in the deed, we think the court have no power to say a fee shall not pass because he has not, in addition, inserted this technical word, using it in a sense entirely distinct and different from its usual and common import." Cole v. Lake Co., 54 N. H. 242, 200. "Difficulties of interpretation could often be avoided if arbitrary rules and technical definitions could be applied to the writing without regard to the author's understanding of its import. * * * The argument for the judicial enforcement of formulas judicially enacted is the convenience of a mechanical method of construction, free from the fault of uncertainty. The argument against it is the certainty with which it would frequently sacrifice the legal rights of parties to the convenience of the court. * * * When two words or clauses are contradictory and irreconcilable, and there is no other evidence than their relative position to Indicate which the testator intended should control the other, their relative position may have some tendency to prove that during the time elapsing between the writing of the first and the writing of the second he changed his mind, and that the second was intended to express the change. This evidence of fact cannot be turned into a rule of law without an exercise of legislative power. The law prescribes the evidence from which, and the tribunal by which, the meaning of constitutions, statutes, wills, and written contracts shall be determined. An inference of fact drawn from the positions of irreconcilable provisions, or from any other proof contained in a writing, may be safely called a rule of construction, or a rule of evidence, if due care is taken to see that the dubious name does not destroy or weaken the distinction between the evidence from which the proper judicial tribunal ascertains the author's mind, and a rule of law established by legislative authority." Sanborn v. Sanborn, 62 N. H. 631, 643, 644. "In this state the intention of the parties to a written instrument is determined, not by any technical rules of construction, but, like a question of fact, by the weight of competent evidence. No technical rules of construction applicable to all cases can be established. The intention in each case is determined by the evidence bearing on the case. Cole v. Lake Co., 54 N. H. 242; Rice v. Aid Society, 56 N. H. 191, 197; Houghton v. Pattee, 58 N. H. 326; Morse v. Morse, Id. 391; Brown v. Bartlett, Id. 511; Wilkins v. Ordway, 59 N. H. 378." Goodale v. Mooney, 60 N. H. 528, 535; Whittier v. Winkley, 62 N. H. 338, 340. "The rule ejusdem generis, which, in the construction of written instruments, ordinarily limits the meaning of general words to things of the same class as those enumerated under them. Is not conclusive." Sumner v. Blakslee, 59 N. H. 242, 243. And the obvious reason is that it is not a rule of law, but an inference of fact; and because it is an inference of fact it is modified, controlled, and sometimes completely superseded, by other more sensible and weighty inferences of fact, which have never been reduced to the exactness of scientific or scholastic statement. But want of exact expression does not deprive them of their logical force and importance in solving the question of Intention. If the very numerous rules of construction to be found in the books are regarded simply as inferences of fact of more or less importance, and if they are not given an undue authoritative effect on account of their antiquity of state ment over other equally important rules or evidentiary facts, which, on account of their infinite variety and subtlety, never have been, and probably never will be, expressed in dogmatic formulas, the work of construing written instruments and ascertaining the true intent and purpose of parties will be less exposed to the just criticism of intelligent laymen, and less involved in mystery and doubt. The legislative power of establishing a standard by which to measure and discover the intention of parties expressed in written contracts does not reside in the judicial branch of the government. Nor would the fact of its uniform exercise by judges for centuries be a reason for its continuance, under a constitution and system of government which require the distinction between law and fact to be strictly observed by the judiciary. State y. Hodge, 50 N. H. 510.

The method of finding facts from evidence is the same...