Milliken v. Buswell

• Decision Date: 12 December 1973
• Citation: 313 A.2d 111
• Parties: James F. MILLIKEN v. Ruth BUSWELL and Paul Kennedy.
• Court: Maine Supreme Court

Page 111

313 A.2d 111

James F. MILLIKEN v. Ruth BUSWELL and Paul Kennedy.

Supreme Judicial Court of Maine.

Dec. 12, 1973.

Aldrich & Aldrich, by Rupert F. Aldrich, South Paris, for plaintiff.

Grover G. Alexander, Gray for defendants.

Before DUFRESNE, C. J., and WEATHERBEE, POMEROY, WERNICK and ARCHIBALD, JJ.

DUFRESNE, Chief Justice.

On September 12, 1968 the plaintiff brought his complaint to establish his title to a certain parcel of land located on the westerly side of Route #26 in the Town of Oxford, County of Oxford, seeking at the same time incidental damages for the use by the defendants of the triangular portion of the land in dispute.

The defendants pleaded legal title in themselves and, in addition thereto, title by virtue of adverse possession for more than twenty (20) years. Even though not specifically pleaded as affirmative defenses under Rule 8(c), M.R.C.P. ¹, the issues of estoppel and that the divisional boundary line as claimed by the defendants was agreed to, and acquiesced in, as such by the plaintiff, were treated by the parties and the Justice below as within the scope of the pleadings. Furthermore, the plaintiff does not raise any objection on that score in this appeal. We will dispose of these issues, assuming they are properly before us without intimating what our ruling would be upon proper objection. ²

The case was heard before a single justice without jury and he found for the plaintiff on all issues and awarded him damages in the amount of $400.00 with costs. The defendants appeal from the judgment, assigning as points on appeal:

'1. The Court erred in permitting the testimony and opinions expressed by the expert witnesses called by the Plaintiff.

'2. The Court erred in permitting the admission of the exhibits (plans) offered by the Plaintiff.

'3. The Judgment is contrary to the greater weight of the evidence.

'4. The Court erred in its application of existing Maine law.

'5. The Court erred in granting Judgment to the Plaintiff.'

No question has been raised as to the amount of damages, either in the designated points on appeal or in the defendants' brief. We deny the appeal.

The parties agree that they own adjoining lots bounded on the east by Route #26, which runs in a general northerly direction from Welchville to Norway, Maine. Plaintiff's parcel lies to the north of defendants' land and the parties agree that the instant litigation arose over the course their common divisional line (plaintiff's southern boundary and defendants' northern boundary) should take. There is no serious dispute that the controversial boundary line commences at a point on Route #26 marked by the steering post of a Model T Ford. This monument points out respectively plaintiff's southeast and defendants' northeast corner.

The defendants contend for a boundary line running westerly from Route #26 at an angle of ninety (90 ) degrees, while the plaintiff maintains that the angle at which their common boundary line intersects the road is seventy-six degrees and fifty minutes (76 50 ) when viewed from the defendants' parcel or one hundred three degrees and ten minutes (103 10 ) when viewed from the plaintiff's lot.

I. RECORD TITLE

Both parcels were once part of a larger tract of land belonging to one Amos Smith. On October 26, 1898 Smith's administrator conveyed the entire tract to Frank M. Brown and Wallace W. Brown. Wallace conveyed his interest in the property to his brother, Frank, on March 22, 1911. What is now plaintiff's parcel was first conveyed out of the larger tract, when Brown conveyed to Alva E. Bumpus on October 6, 1932. The land owned by the defendants was originally conveyed by Brown to one Levi Bixby. Although this deed is unrecorded and the date of its execution and delivery does not appear in the evidence, it is clear, and the defendants do not dispute the fact, the Bixby conveyance took place after the Brown deed to Bumpus, because the first recorded deed of what is now the defendants' parcel describes the land conveyed as beginning at the southeasterly corner of land sold by Frank M. Brown to Alva Bumpus and running in a westerly direction along the southerly line of the Bumpus land.

The plaintiff's deed, as well as all previous deeds in his chain of title, contains the following description:

'a certain lot or parcel of land situated in Oxford, in the County of Oxford and State of Maine, and located on cement road leading from South Paris to Portland (presently Route #26), and commencing on Northerly corner of lot formerly owned by Amos Smith and running South 17 rods; thence West 19 rods; thence North 17 rods; thence East 19 rods to the point of beginning.' (Emphasis added.)

In an attempt to prove where his land, as described above, would lie on the face of the earth, plaintiff produced two registered land surveyors whose qualifications were not challenged by the defendants. Hugh Hastings, plaintiff's first surveyor, testified that his initial effort was to locate the northerly corner of the Amos Smith tract to which plaintiff's deed referred. To do this, he resorted to the earlier deed from Amos Smith to the Brown brothers by which the Browns had come into ownership of the entire larger tract. That deed, in turn, made reference to a stone corner situated on what is presently Route #26. According to the calls in the Smith-to-Brown deed, a line was to run from this stone corner at the road on a course of south forty-eight degrees west to another road which the witness identified as the present Skeet Field Road.

The witness examined other deeds of conveyance involving other lots in the general area, besides the plaintiff's deed, and conducted field surveys, all of which led him to conclude that the stone corner mentioned in the Smith-to-Brown deed represented the same northerly corner of the Amos Smith tract referred to in the description of plaintiff's parcel.

To further verify the identity of the stone post, Hastings traced a line from it, 'meandered by a fence,' until he came to a point on the Skeet Field Road where he found another stone marker. From this second stone marker, he traced another Smith line south along the Skeet Field Road until he came to another point for which he was looking. The tie rod of a Model A automobile marked the latter point and in the opinion of the witness confirmed both the other stone marker on the Skeet Field Road and the identity of the stone post marking the 'northerly corner of the lot formerly owned by Amos Smith' and now owned by the plaintiff.

After making several trial runs and plotting a line from the split stone post at plaintiff's northeast corner to the Skeet Field Road, Hastings was of the opinion that the plotted line which ran South 55 50 West was the same line which in the Smith deed was described as running 'south forty-eight degrees west.' He explained the discrepancy by attributing it to the declination of magnetic north over the years. Since the description in the plaintiff's deed, as well as the original description in the Brown-to-Bumpus deed, clearly indicated that a parallelogrammatic lot was intended by the parties, Hastings plotted the southern and western lines respectively parallel to the northern and eastern lines. Dana Douglas, the plaintiff's other surveyor, supported Hastings in locating the plaintiff's northerly corner and agreed that the plaintiff's southerly line would run parallel with the plaintiff's northerly line.

On the other hand, the defendants, through their surveyor, whose qualifications were not disputed, submitted a plan on which the lines of both parcels purported to intersect Route #26 at right angles. Admitting on cross-examination that the lines he drew actually varied from a right angle by two and one half degrees, he testified that he had made no title search in connection with his survey. He further stated that all his work, in establishing the lines of the defendant's parcel on the face of the earth, was done largely from a copy of the defendants' deed; he conceded that he never saw the plaintiff's deed, nor traced the plaintiff's northerly line from Route #26 to the Skeet Field Road, and that he made no adjustment of the lines to compensate for the declination of magnetic north.

The Justice below, in the face of conflicting evidence, concluded that the plaintiff had carried his burden of proof that 'his lot boundaries are as depicted on Plaintiff's Ex. #17' as testified to by Mr. Hastings, and in this, we cannot say that he was clearly wrong.

Indeed, the location of boundaries on the face of the earth is a question of fact. Perkins v. Conary, 1972, Me., 295 A.2d 644; Rusha v. Little, 1973, Me., 309 A.2d 867. And the burden is on the appellant, in a non-jury trial, to satisfy this Court that the findings of fact of a single justice are 'clearly erroneous.' Rusha v. Little, supra; Perkins v. Conary, supra; Garland v. Vigue, 1967, Me., 236 A.2d 324; Sowles v. Beaumier, 1967, Me., 227 A.2d 473.

The defendants, however, claim clear error of law by the Justice below in accepting the plaintiff's surveyors' plan which was based upon an interpretation of the plaintiff's boundaries in his deed according to the magnetic meridian rather than staying with the literal calls which described the lines as running respectively south, west, north and east. They argue that the deed required the courses to be determined by the 'true' meridian, i. e. by the sidereal or astronomical meridian and not by the magnetic meridian.

True, this Court has ruled that what are the boundaries is a question of law. Perkins v. Conary, supra; Rusha v. Little, supra.

But, in identifying descriptions in deeds, the use of the words north or northerly, east or easterly, south or southerly, west or westerly does not always indicate a direction that is due north, east, south or west. Cilley v. Limerock Railroad Company, 1910, 107 Me. 117, 77 A. 776; Brown v. McCaffrey, 1948, 143 Me. 221, 60 A.2d 792.

In M'Iver's...