Morrison v. Holder

• Citation: 101 N.E. 1067,214 Mass. 366
• Parties: MORRISON et al. v. HOLDER et al.
• Decision Date: 20 May 1913
• Court: United States State Supreme Judicial Court of Massachusetts

214 Mass. 366

101 N.E. 1067

MORRISON et al. v. HOLDER et al.

Supreme Judicial Court of Massachusetts, Essex.

May 20, 1913

COUNSEL

Cusack & Cusack, of Lynn, for plaintiffs.

Arthur G. Wadleigh and Frederick E. Shaw, both of Lynn, for defendants.

OPINION

BRALEY J.

The action is tort for breaking and entering the plaintiff's close, with the further allegation that the defendants cut down, damaged and destroyed the trees and undergrowth. If as required by R. L. c. 173, § 8, the place of the alleged trespass is designated in the declaration by name boundaries, courses and distances, the plaintiffs need not prove the boundaries with the precision requisite in a writ of entry, where the whole title to the land described and demanded is put in issue. The judgment if the plaintiffs prevail determines only that a trespass has been committed on some part of the premises. Hall v Mayo, 97 Mass. 416. The plaintiffs and Harriet E. Holder, hereinafter referred to as the defendant, claim title to the land in dispute through mesne conveyances from Nathaniel Holder. The deed, however, of their common grantor to Flint under which the plaintiffs derive title antedates by many years the deeds to the defendant, and if it can be located they are entitled through the subsequent conveyances which were properly admitted, to the southerly half of all the land therein described. Temple v. Benson, 213 Mass. 128, 100 N.E. 63. But as the description is by courses and distances exept the westerly boundary, designated as a private way known as Linwood street, and the southerly corner of the lot is stated as the point of beginning, the southerly line which is in controversy cannot be located when the deed is applied to the land. It is the plaintiff's contention, that the point of departure should be fixed in the westerly line of the lot 66.03 feet southerly of an oak tree standing at the easterly side of the private way, but which subsequently became a public street. The defendant, however, placed the starting point as being opposite to the tree. If thus located the measurement on the way called for by the plaintiffs' deeds would be about equally divided, and the area of the original grant correspondingly diminished.

A question of fact which the jury were to determine having been raised, the defendant, who put in without objection documentary and parol evidence which she maintained established title in herself, excepted to nearly all the testimony introduced by the plaintiffs. Temple v. Benson, 213 Mass. 128, 100 N.E. 63, and cases cited. But if it is necessary to consider the exceptions at some length they are devoid of merit. The land conveyed to the parties formed only a part of a large tract owned by Nathaniel Holder, who after the deed to Flint made conveyances from time to time of adjoining parcels, although no plan of the entire premises with the subdivisions seems to have been prepared. The deeds and the plans showing these parcels, and the lots into which some of the parcels have been divided by the purchaser, were admissible as they all related to the original territory out of which the lands of the parties had been carved, and evidence that a natural monument, or a drill hole in a boulder, even if not mentioned in the deeds, but which has been treated by contiguous owners as a landmark, while not conclusive is competent where a boundary line is in dispute. Hathaway v. Evans, 108 Mass. 267; Coyle v. Cleary, 116 Mass. 208; Byam v. Robbins, 6 Allen, 63, 65, 66; Morris v. Callanan, 105 Mass. 129; Temple v. Benson, 213 Mass. 128, 100 N.E. 63.

The plaintiffs' surveyor to illustrate his testimony was also rightly permitted to use certain chalks and plans prepared from actual knowledge and surveys, and to testify concerning the location and boundaries of a part of the adjoining lots based upon information derived from a physical examination while in the employment of the company which had bought them. It is sufficient ground for its admission that all of the foregoing evidence tended to aid the jury in the proper application of perplexing and ambiguous documentary evidence. Hathaway v. Evans, 108 Mass. 267; Barrett v Murphy, 140 Mass. 133, 2 N.E. 833. It is true that some of the statements of the plaintiffs' witnesses when describing the location of the ancient oak, the boulder with a drill hole, each of which according to their recollection had disappeared long before the trial, and of other monuments or boundaries referred to in the later deeds, were founded upon hearsay. But this objectionable feature was not disclosed in their direct examination, nor referred to by counsel when the defendant excepted. The source of their information was elicited in cross-examination. If the defendants had asked to have this portion excluded, upon refusal, exceptions then taken would have been available. A party,...