McCausland v. York

• Decision Date: 11 August 1934
• Citation: 174 A. 383
• Parties: McCAUSLAND v. YORK.
• Court: Maine Supreme Court

174 A. 383

McCAUSLAND

v. YORK.

Supreme Judicial Court of Maine.

Aug. 11, 1934.

Exceptions from Superior Court, Cumberland County.

Action of trespass quare clausum fregit by Clara E. McCausland against Nettie B. York, tried before a referee. The referee's report in favor of the plaintiff was accepted by the superior court, and the defendant brings exceptions.

Exceptions overruled.

Argued before PATTANGALL, C. J., and DUNN, STURGIS, BARNES, and THAXTER, JJ.

Verrill, Hale, Booth & Ives, of Portland, for plaintiff.

Frederic J. Laughlin, of Portland, for defendant.

STURGIS, Justice.

This is an action of trespass quare clausum fregit to which the defendant pleads the general issue and, in a brief statement, alleges that she is lawfully seized and possessed of the land described in the plaintiff's writ on which the acts of trespass are alleged to have been committed. The suit was duly entered in the superior court and referred under rule of court with the right of exceptions to decisions of law reserved. The referees found for the plaintiff and assessed damages. The defendant filed written objections and perfected her exceptions to the acceptance of the report. The writ, pleadings, evidence, and report of the referees, together with the objections filed in the trial court, are made a part of the bill of exceptions.

The land in controversy is a small parcel lying between the homestead lots owned and occupied by the parties, and all situated on the northerly side of Clifton street near its intersection with Forest avenue in the city of Portland. This tier of three lots is a part of a tract of land which was formerly owned by Arthur E. Marks, now deceased. He is the common grantor from whom the predecessors in title of these parties derived their titles.

By his deed dated September 19, 1894, Arthur E. Marks conveyed the northeasterly end of this tract with the buildings thereon to Herbert W. McCausland, the plaintiff's husband. This deed was duly recorded on October 8, 1894, in the Cumberland registry of deeds, and the grantor and his successors in title, including the plaintiff, have since continuously occupied the premises.

About two years later Arthur E. Marks sold the southwesterly lot in his tract on Clifton street to Fannie E. Hopkinson. The deed then given was dated March 27, 1896, acknowledged March 28, 1896, and recorded April 4, 1896. It contained the following description:

"A certain lot or parcel of land with the buildings thereon, situated in said Deering, and bounded and described as follows, to wit: Beginning at the Southwesterly corner of Clifton Street at the point of intersection of said Clifton Street with Forest Avenue; thence Northerly on the Westerly side line of said Clifton Street eighty-nine (89) feet to a stake; thence North Westerly at nearly right angles with said Clifton Street and along the Southerly side-line of land deeded to H. W. McCausland forty-seven (47) feet to an iron rod located on the South Easterly side line of land of L. W. Whitney; thence Southerly on the South Easterly side-line of said Whitney's land eighty-nine (89) feet more or less to the Northerly side-line of Forest Avenue; thence South-Easterly on the northerly side-line of said Forest Avenue forty-seven (47) feet to the point of beginning."

Fannie E. Hopkinson, the grantee in this deed, died September 24, 1913, and this property descended to her sister, Elizabeth H. Marks, who conveyed it by substantially identical metes and bounds to the defendant, Nettie B. York, by deed dated July 8, 1914, and recorded on the following day. On the strength of this chain of title, the defendant claims that her land extends northeasterly from Forest avenue to the land which Arthur E. Marks conveyed to Herbert W. McCausland by deed dated September 19, 1894, to which reference has already been made. If this claim can be sustained, the defendant has title to the land upon which the trespass is alleged to have been committed.

It appears and is undisputed, however, that by deed dated March 26, 1896 and acknowledged March 28, 1896, but not recorded until June 27, 1927, Arthur E. Marks purported to convey to Herbert W. McCausland a small practically triangular lot of land abutting on Clifton street and lying on the southwesterly side and adjoining the land and buildings which he had previously conveyed to McCausland by deed of September 19, 1894. The evidence tends to prove that, although McCausland, the grantee, did not then record this deed, he immediately went into possession of the lot therein described, graded it, and made it a part of his lawn, and until his death used and occupied it as a part of his homestead lot. His wife, the plaintiff in this action, his successor in title as life tenant under his will, has been in possession since his death. A part or all of this lot is included in the land claimed by the defendant, and her entry, excavation, and spoliation of the growing grass on it is the basis of this action.

For nearly thirty years after Arthur E. Marks conveyed these lots on Clifton street, there appears to have been no controversy as to the ownership of the triangular intermediate lot. The Hopkinson land, now the York land, being higher, was graded down in an embankment which ran, if not exactly nevertheless practically, to the southwesterly line of the triangle, as for convenience the lot in dispute may be called. This embankment was already built when the Yorks purchased this property and was used as a part of their back lawn just as it had been used, it may be fairly inferred, by Fannie E. Hopkinson in her life time. The McCauslands, on the other hand, occupied the triangle as part of their lot. They mowed to the foot of the embankment, Where Hopkinson and the Yorks stopped mowing, and the adjoining owners treated the foot of the embankment as the approximate location of this dividing line. Neither here presents a claim of adverse possession. Although that question is not raised here, it well may be that both parties intended to occupy and claim title to their true line wherever that might be ascertained to be, and find themselves within the doctrine of Preble v. Railroad Co., 85 Me. 260, 27 A. 149, 21 L. R. A. 829, SB Am. St. Rep. 366, and the later decisions of this Court.

In 1927 or the year following, a surveyor employed by the defendant York to run her lines, apparently advised her that she owned the triangle, made a plan of it and the adjoining lots, and set stakes in accordance with his interpretation of the deeds and their legal effect. Acting on this advice, the defendant York started to build a garage on the triangle but stopped the work. She dug a trench practically across the lot and set posts for a fence, and from time to time mowed the grass and otherwise attempted to use and occupy it as owner. Finally, alleging that the deed of Arthur E. Marks to Herbert W. MeCausland bearing dale of March 26, 1896, which purported to transfer the title to the triangle, constituted a cloud on her title to the triangle, she brought a bill in equity to remove the cloud. The bill was dismissed without prejudice, this court on appeal holding that equity had no jurisdiction, the proceeding on pleading and proof being nothing more than an attempt to settle a line dispute and try title, a matter which was cognizable in the courts of law. York v. MeCausland, 130 Me. 245, 154 A. 780. In this action at law, the parties are reversed, but the controversy is the same. Both parties claim the legal title to the triangle, so-called, under their respective deeds, and base their right of possession thereon. The issue in trespass quare clausum fregit is rightful possession. Kimball v. Hilton, 92 Me. 214, 42 A. 394. If the plaintiff establishes a legal title to the triangle, in the absence of proof of actual adverse possession by some one else which is lacking here, the law implies that she had constructive possession sufficient to maintain this action. Thurston v. McMillan, 108 Me. 67, 78 A. 1122; Butler v. Taylor, 86 Me. 17, 29 A. 923; Griffin v. Creppin, 60 Me. 270. If the defendant has the title, the plaintiff cannot maintain her action.

The deed by which Arthur E. Marks attempted to convey the triangle in dispute to Herbert W. MeCausland, from whom the plaintiff derives her title as life tenant, was a warranty deed, and, as already pointed out, although dated March 26, 1896, was not acknowledged until March 28, 1896. There being no convincing evidence outside the deed itself as to when it was delivered, the date of the acknowledgment must be taken as the date of delivery. In the absence of controlling evidence to the contrary, when a deed is acknowledged at a date later than the instrument itself bears, the presumption is that delivery was upon the date of acknowledgment. Loomis v. Pingree, 43 Me. 299; Mighill v. Rowley, 224 Mass. 586, 113 N. E. 569.

On the record, therefore, on March 28, 1896, Herbert W. MeCausland received delivery of, and accepted, a deed apparently conveying the title to the disputed premises. Although the deed was not then recorded, as between the grantee and the grantor, his heirs and devisees and persons having actual notice thereof, this transfer of...