Pritchard v. Rebori

• Decision Date: 20 May 1916
• Citation: 186 S.W. 121,135 Tenn. 328
• Parties: PRITCHARD v. REBORI.
• Court: Tennessee Supreme Court

186 S.W. 121

135 Tenn. 328

PRITCHARD v. REBORI.

Supreme Court of Tennessee.

May 20, 1916

Appeal from Chancery Court, Shelby County; Jas. L. McRee, Special Chancellor.

Bill by A. L. Pritchard against T. T. Rebori. Judgment for plaintiff and defendant appeals. Affirmed.

P. H Phelan, Jr., of Memphis, for appellant.

Wilson & Armstrong, of Memphis, for appellee.

WILLIAMS J.

The bill of complaint filed by Pritchard was to recover for the breach of a covenant against incumbrances incorporated in a deed executed to him by defendant, Rebori.

It appears that the Southern Railway Company owns between Madison and Monroe avenues in the city of Memphis a right of way that extends 50 feet westward from the center of its track. This easement was acquired by its predecessor in title in the year 1855. The tracks of the railway at the place in question lie in a cut, the western slope of which does not take up the entire distance of 50 feet; that is to say, the top edge of the slope runs east of the true western limit of the right of way.

However at the base of the slope the company has constructed a fence of heavy timbers which was evidently built for the purpose, in part at least, of holding back the dirt that might slide from the slope. This fence is about 15 feet from the track. There was nothing in the way of fence, posts, or markers in the western margin of the right of way to indicate where it was.

Pritchard was desirous of acquiring a site near the railway track on which to build a warehouse, and purchased a parcel of land from defendant for that purpose. The distance calls of the deed run to the fence at the base of the cut, considerably beyond the record showing as to the real western line of the right of way.

When Pritchard began to construct the warehouse he was notified by the railway company of its rights and his invasion thereof. On taking legal advice, he found that the building was being erected several feet within the limits of the legal right of way.

In order to remove the incumbrance and continue building operations, Pritchard conveyed two pieces of realty to the railway company, in return for which it quitclaimed to him that portion of the right of way which was covered by both the deed from defendant, Rebori, and the building, paying what is contended to be a fair price for the same.

To fairly set forth the points in dispute, it may be well to quote the description of the parcel contained in the deed executed by Rebori. The particularity and nicety of the distance calls will be noted.

"Beginning at a point, the intersection of the east line of South Lauderdale street with the north line of the first alley south of Madison avenue; running thence eastwardly with said alley forty (40) feet to the southwest corner of lot No. 13; thence continuing east with the south line of lots Nos. 11, 12 and 13 one hundred forty-six (146) feet, to a point in the west line of lot No. 10; thence south with the west line of lot 10 sixteen (16) feet; thence east fifty-two (52) feet to the Scroggings subdivision; thence northwardly with the west line of the Scroggins subdivision thirty (30) feet to the right of way of the Southern Railroad; thence northwestwardly with the line of said right of way two hundred sixteen (216) feet, to the northwest corner of lot No. 13; thence southwardly with the west line of lot No. 13 one hundred fifty-eight and five-tenths (158.5) feet to the northeast corner of lot No. 7 of the Armour subdivision; thence westwardly with the north line of lot No. 7, forty-seven and eight-tenths (47.8) feet to South Lauderdale street; thence south with South Lauderdale street fourteen and two-tenths (14.2) feet to the point of beginning."

The prime contention of Rebori is, that the line of the parcel that is underscored must stop at the real or record line of the right of way, and that, so stopping, the deed did not convey any land east of that line; therefore, that there is no incumbrance.

We are brought to a consideration of the rules of construction applicable in this action between the immediate vendor and vendee.

The general rule is that in determining boundaries resort is to be had, first, to natural objects or landmarks, because of their very permanent character, next, to artificial monuments or marks, then to boundary lines of adjacent owners, and then to courses and distances. But this general rule, as to the relative importance of these guides to the ascertainment of a boundary of land, is not an inflexible or absolute one.

The use of the rule is as a means to the discovery of the intention of the parties. To arrive at the intention of the parties to the instrument is the purpose of all rules of construction, and this applies to the description of premises conveyed as well as to other parts of the instrument.

It is not true, as appellant supposes, that there is such magic in a monument called for that it will be made to control in construction invariably. If it controls it is only because it is to be regarded as more certain than course or distance.

"If it should in a given case be less certain, the rule would fail with the reason for it and the monument would yield to the course and distance and an artificial monument will yield more readily than a natural one." Note 30 Am. Dec. 734, 740.

It is manifest that a mere adjacent boundary line would be caused to yield more...