Peck v. Denniston
| Decision Date | 26 September 1876 |
| Parties | Sarah A. Peck v. Edward E. Denniston |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Hampshire. Tort for the obstruction of the plaintiff's right of way, and cutting down shade trees. The answer denied obstructing the right of way, admitted the cutting down of the trees, and justified the act through ownership of the soil. At the trial in the Supreme Court, a verdict was ordered for the plaintiff; and the defendant alleged exceptions, which were not allowed, and which were afterwards waived, and the case sent to an assessor to assess the damages.
From the assessor's report it appeared that in 1865 the defendant conveyed to A. Perry Peck a parcel of land in Northampton bounded and described as follows: "Beginning on the line of the highway at the northeast corner of the land of Henry Watson; thence running 184 feet northwesterly on said highway to the new avenue as laid out by said grantor in his plan of lots; thence running westerly on said avenue 360 feet to a bound stone, where another avenue intersects the avenue first above named; thence running southerly on the easterly side of said second avenue 425 feet to a bound stone; thence easterly at nearly right angles with said avenue 278 feet to the southwest corner of said Watson's land; thence northerly and easterly on said Watson's land to first mentioned point; containing three acres, be the same more or less, with the unrestricted right of way in and upon said avenues above named forever."
The question at issue was whether the first boundary line ran to the side of the avenue or to the centre thereof, the alleged trespass being committed in that portion of the avenue lying between the centre and the plaintiff's land.
The assessor found that at the time this deed was made there was no monument at the end of the first boundary line; that there was one at that time at the end of the second and third lines, both of which monuments were at the side of the avenue; that afterwards the parties placed a monument on the first line at the side of the avenue, the distance from the point of beginning being 194 feet instead of 184 feet as stated in the deed.
The plaintiff's damages were assessed; and, on the coming in of the assessor's report, the defendant objected to its acceptance, on the ground that the assessor erred in the construction of the deed to the plaintiff's grantor; but it appearing that the construction of the deed was a matter in issue at the trial in court, and that the assessor adopted the construction as then ruled, Wilkinson, J., overruled the objection and ordered judgment upon the assessor's report; and the defendant alleged exceptions.
Exceptions overruled.
D. W Bond & H. H. Bond, for the defendant.
C. Delano & J. C. Hammond, for the plaintiff.
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