Landry v. Giguere

• Decision Date: 04 September 1928
• Citation: Landry v. Giguere, 127 Me. 264, 143 A. 1 (Me. 1928)
• Parties: LANDRY v. GIGUERE.
• Court: Maine Supreme Court

143 A. 1

LANDRY

v. GIGUERE.

Supreme Judicial Court of Maine.

Sept. 4, 1928.

Exceptions from Supreme Judicial Court, Kennebec County at Law.

Action by Napoleon Landry against C. J. Giguere. Judgment for defendant, and plaintiff brings exceptions. Exceptions sustained.

Argued before WILSON, C. J., and PHILBROOK, DUNN, DEASY, BARNES, and. PATTANGALL, JJ.

J. A. Letourneau and F. Harold Dubord, both of Waterville, for plaintiff.

H. D. Eaton, of Waterville, for defendant.

PATTANGALL, J. On exceptions. Real action. Plea, nul disseizin. Case tried before single justice. Judgment for defendant. The premises in dispute consist of a rectangular piece of land adjacent to the rear and west wall of the brick building of the defendant, situated at the corner of Main and Silver streets, in Waterville, and on the south side of Silver street.

Next south, on Main street, of the defendant's building, is a brick building, called now the Paganucci and formerly the Parent building. The south wall of the defendant's building for its length is a party wall for the north wall of the Parent building, but this last wall extends westerly of the defendant's building 10 feet.

Next west, on Silver street, of the defendant's building, is a wooden building of the plaintiff, which runs back southwesterly from Silver street, at right angles to the street. The east wall of the plaintiff's building and the west wall of the defendant's building are, for about 27 feet back from Silver street, in contact with each other, or practically so; but from this point the west wall of the defendant's building turns towards the south and continues to the Parent building, striking it at right angles.

There is therefore made by the west wall of the defendant's building, by that part of the Parent building which extends 10 feet beyond the defendant's building, and in part by the east wall of the plaintiff's building, a triangular space; the latter wall being part of the line of the hypothenuse. Between the south end of the plaintiff's building, including a piazza about 5 feet wide, built on in 1925, and the west end of the Parent building, is an open space about 6 feet.

Leading into the basement of the defendant's building is a rollway, housed over, 5 feet wide north and south and. 5 1/2 feet deep east and west. Between this rollway and the Parent building is a space of the same depth as the rollway and 5.75 feet wide north and south, for the greater part covered by a wooden elevator. The land in suit, as described in the writ, is that part of the triangle included within the measurements of the rollway just stated and of the space between the rollway and the Parent building and a little more, by reason of the rollway being located, according to the description of the writ, 6 inches further to the north and also being made 1 foot deeper; i. e., 6 1/2 feet, east and west.

With the exception of these structures, the triangle is open space.

Both plaintiff and defendant claim title to all of the triangle. Their claims arise in this way:

September 6, 1866, Elah Esty and Thomas G. Kimball conveyed to the Waterville National Bank the lot at the corner of Main and Silver streets, with the description:

"Bounded thus: Beginning at Ticonic landmark, thence running westerly, on the southerly line of Silver street, to land of Jeremiah Furbush; thence southerly, on the easterly line of said Furbush and the same course continued, to land occupied by David Shorey; thence easterly, on the north line of land occupied by said Shorey (it being the J. M. Crooker store lot), to the west line of Main street; thence northerly, on the west line of Main street, to the point begun at."

The defendant claims that the east line of the Furbush lot, at the time of this deed, was located where the east line of the wall of the plaintiff's building now is, and that that line extended would strike the land of David Shorey, owned by him at the date of the deed, and which he had purchased November 25, 1865, and on which the Parent building was erected in 1909, and so the triangle was included in the bank's lot, and conveyed to the defendant by the successive deeds of the lot.

The plaintiff claims, on the other hand, that the east line of the Furbush lot was the line of three lots, which together made up one lot, formerly owned by Cynthia Ellis, and that the descriptions in deeds given by predecessors in title to Furbush definitely located that line; that the west wall of the defendant's building was erected by the bank in 1877, about 10 years after it acquired title by the above deed, and that the wall was built over on the Furbush lot; that the Furbush lot, except as occupied by the wall, is now owned by the plaintiff, and that it included the northerly part...