Parkinson v. McQuaid

• Decision Date: 14 March 1882
• Citation: 11 N.W. 682,54 Wis. 473
• Parties: PARKINSON v. MCQUAID.
• Court: Wisconsin Supreme Court

54 Wis. 473

11 N.W. 682

PARKINSON

v.MCQUAID.

Supreme Court of Wisconsin.

Filed March 14, 1882.

Appeal from circuit court La Fayette county.

Orton & Osborn, for appellant.

M. M. Strong and J. R. & D. S. Rose, for respondent.

TAYLOR, J.

This was an action for a trespass upon real estate, and for taking and removing a fence therefrom. The answer was a general denial, and that the locus in quo was owned in fee by the defendant. The whole contention in the case depends upon where the east line of the defendant's land is located. The evidence shows that in 1875 the defendant purchased from the plaintiff 70 acres of land, partly situated in the S. E. 1/4 of the S. W. 1/4 of section 30, and partly in the N. E. 1/4 of the N. W. 1/4 of section 31, in township 4 north, range 4 east. In the deed the land is described as follows: “Beginning at the N. W. corner of the N. E. 1/4 of the N. W. 1/4 of section 31, in township 4 north, range 4 east; running thence south 18 chains to the line of Peter Parkinson, Jr., and N. T. Parkinson; thence east along said line 20 chains; thence north 35 chains and 37 links to a post; thence west 1 deg. and 25 min., south 20 chains; thence south 16 chains and 84 links to the place of beginning, containing 70 21-100 acres of land.”

The evidence given on the trial shows that the plaintiff, at the time the deed was given, did not own any land west of the west line of the N. E. 1/4 of the N. W. 1/4 of section 31, nor west of the west line of the S. E. 1/4 of the S. W. 1/4 of section 30; and it also shows that he did own the land 20 chains in width extending east of both of said lines, and of the length described in said deed. It also shows that a survey of the tract deeded was made at the time the deed was made, which was at the time supposed to be correct by the parties, and that a fence was built by the parties along what was then supposed to be the east line of the tract. It also appears that in making said survey the surveyor and the parties intended to make the starting point the N. W. corner of the N. E. 1/4 of the S. W. 1/4 of section 31, township 4, range 4. The fence was supposed by the parties to be the real line until 1878, when the defendant questioned its correctness, and afterwards and before this action was commenceda new survey was made and the east line of the 70 acres was claimed by the defendant to be four rods further east than the fence, and he removed the fence to the new line so claimed by him, and such removal is the trespass complained of.

One of the contested questions in the case is as to the construction of the deed. It is insisted by the learned counsel for the appellant that the post referred to at the end of the third course and distance, being a monument whose location is fixed by the evidence, must limit the defendant's land on the east, whether it be 20 chains east of the west line of the plaintiff's land as owned by him at the time of the deed or not; and that, for the purpose of locating the land according to the description in the deed, the starting point for making the survey should be such post, and then trace the survey backwards, and so fix its bounds; and that all other descriptions in the deed must give way to this one. We do not think the post referred to in the deed can have the effect claimed for it by the learned counsel for the appellant.

The fundamental rule for the construction of a deed, whether it relates to the description of the land, the estate conveyed, or other matter, is to so construct it as to give effect, if possible, to the intention of the parties. Johnson v. Simpson, 36 N. H. 91;Railroad Co. v. Steleger, 61 N. Y. 348;Jackson v. Dunsbaugh, 1 Johns. Cases, 91;Jackson v. Myers, 3 Johns. 388;Church v. Steele, 42 Conn. 69; Wright v. Day, 33 Wis. 260;Bridge v. Wellington, 1 Mass. 219;Worthington v. Hylyer, 4 Mass. 106;Lane v. Thompson, 43 N. H. 320;Reed v. Proprietors of Locks, etc., 8 How. (U. S.) 274;Jackson v. Moore, 6 Cow. 706;Drew v. Drew, 8 Foster, 495; Tyler, Law of Boundaries, 121; Wolfe v. Scarbarough, 2 Ohio St. 361;Peyton v. Ayres, 2 Md. Ch. 64.

To arrive at the intention of the parties, the facts and circumstances before the parties at the time may be given in evidence, so far as they can without trespassing upon any of the rules of evidence. Drew v. Drew, 8 Foster, 494;Webb v. Stone, 4 Foster, 286;Reed v. Proprietors, etc., 8 How. 274.

Considering the fact that the plaintiff did not own the land west of the west line of the N. E. 1/4 of the N. W. 1/4 of section 31; that the starting place of the description of the land in the deed is the north-west corner of the N. E. 1/4 of the N. W. 1/4 of section 31; that he did own the lands east of that line at least 20 chains in width; that the length of the north and south lines of the land conveyed are stated to be just 20 chains; and the length north and south are such as to enclose exactly 70 21-100 acres of land,--it seems to us that it was the clear intention to convey to the defendant that exact amount of land, and to convey it in the form described in the deed, making the west line of the land conveyed the west line of the plaintiff's land. Such was clearly the intention of the parties, as shown by the description in the deed, aided by the evidence showing that the plaintiff did not own any land west of the starting point in the west line of the lands described. Had the evidence shown that the plaintiff owned the land west of the starting point, and west line of the land described in the deed, as well as east of the east line, then a survey and location made by the parties at the time the deed was given would be strong evidence that the land so surveyed and located was the land intended to be conveyed, although the starting point had been the same as described in this deed.

In such case the court would probably hold that the description of the starting point in the deed must yield to that adopted by the parties at the time. The fact that the intention was to convey 70 21-100 acres is strongly evidenced by the fact that the survey and location made on the ground at the time the deed was given contained just that amount of land; the mistake being, if any mistake was made, in the location of the starting point in that survey. That the parties intended that the N. W. corner of the N. E. 1/4 of the N. W. 1/4 of section 31 should be the starting point in the survey is evident from the fact that the surveyor testifies that he intended to start his survey at that point. There was no intention to include in the survey made any lands not owned by the plaintiff. It appearing that it was the clear intention of the parties, the one to sell and convey, and the other to purchase 70 21-100 acres of land in the form described in the deed, lying east of the west line of the plaintiff's land, the material question in the case is to ascertain the true west line of the plaintiff's land at the time he gave the deed, and when that is done the land must be laid off 20 chains in width, extending east from that line, and of the length stated in the deed.

In Powers v. Jackson, 50 Cal., it was held that, if a deed describes the land conveyed by adopting a corner of a subdivision according to the United States survey as a starting point, said corner is a monument and will control, although the party selling at the time of the sale by an actual survey fixed the stake at a different point and run the lines accordingly. In Verplank v. Hall, 27 Mich. 79, it was held that, when the initial point in the description of premises in a deed is the south-east corner of the south half of the south-east quarter, factional, of a section, and the quarter is made fractional by a meandered lake so situated as to cover the eastern and central portions thereof, and the parcel described was carved out of the north half within a year after the same was patented, the south-east corner in question is construed to be the point which constituted the south-east corner of the land when it was surveyed out and patented; and the fact that the waters of the lake have since receded cannot change the boundaries of the lands described, as previously located. This court, in the case of Gove v. White, 20 Wis. 425, held in substance the same rule. In that case the starting point was described as a certain section corner, and it was held that such starting point must control the other descriptions. Wendell v. People, 8 Wend. 182;Dupont v. Davis, 30 Wis. 170-177.

In this last case it was held that where the starting point was a quarter section corner, it was a controlling circumstance in ascertaining the boundary of the lands conveyed. Where lands are conveyed and described as bounded by the lands of another in the deed, the true boundary line between the lands of such other and the grantor is the boundary, although at the time of the conveyance a part of the land conveyed according to such true boundary was enclosed by such other person and claimed to be owned by him. Sparhawk v. Bogge, 16 Gray, 583. See, upon same point, Umbarger v. Chaboya, 49 Cal. 526;Cornell v. Jackson, 9 Metc. 150; Cleveland v. Flagg, 4 Cush. 76;Caswell v. Wendell, 4 Mass. 108. If the adjoining land-owner had acquired title by adverse possession to the land within his enclosure at the time of the conveyance, this rule would not apply.

In the case of Cleveland v. Flagg, supra, it was held “that where land is conveyed beginning at and bounding on the land of P., the point of beginning and boundary is the true line of P.'s land, and not the line of P.'s occupation as shown by a fence set up and maintained by P. before and after the conveyance, with the consent of the owner of the lot conveyed, under the mistaken belief that such was the true line.”

In Cornell v. Jackson, supra, it was held “that where A. conveys land to B., bounded on land of T., the true line of T.'s land is the boundary of the land conveyed, although A. and T. had previously agreed by...