Proctor v. Carey.

• Court: Maine Supreme Court
• Writing for the Court: THAXTER, Justice.
• Citation: Proctor v. Carey., 142 Me. 226, 49 A.2d 323 (Me. 1946)
• Decision Date: 19 October 1946
• Parties: PROCTOR et al. v. CAREY.

49 A.2d 323

PROCTOR et al.

v.CAREY.

Supreme Judicial Court of Maine.

Oct. 19, 1946.

Exceptions from Superior Court, Kennebec County.

Action of trespass quare clausum by Carl A. Proctor and another against Peter P. Carey. Judgment for plaintiffs, and defendant brings exceptions.

Exceptions sustained.

Harvey D. Eaton, of Waterville, for plaintiffs.

F. Harold Dubord, of Waterville, for defendant.

Before STURGIS, C. J., and THAXTER, HUDSON, MURCHIE, TOMPKINS, and FELLOWS, JJ.

THAXTER, Justice.

This acton of trespass quare clausum was tried before a single justice without the intervention of a jury but with right of exceptions reserved. He entered judgment for the plaintiffs and the case is before us on the defendant's exceptions. The sole issue is the determination of the dividing line between the property of the plaintiffs and the property of the defendant in a certain land development known as College Avenue Heights in the City of Waterville.

A portion of this development includes lots 28 to 35, inclusive, running easterly and westerly on the southerly side of Donald Street according to a plan made in August 1921 by Green & Wilson. Both parties trace their titles to deeds from D. W. Lanigan and L. J. Rosenthal who first developed the tract. By warranty deed dated September 3, 1921 Lanigan and Rosenthal conveyed lots 28 and 29 on the plan to George L. Chamberlain and Margarette Chamberlain who conveyed to the defendant, Peter P. Carey, by deed dated April 20, 1945. Each of these conveyances was made by lot numbers and there was no mention of metes or bounds, or courses or distances, or of monuments. June 23, 1923 Lanigan and Rosenthal deeded in a similar manner lot 30 to Walter Lint and subsequently on August 18, 1928 the easterly half of lot 31. By various conveyances, none of which mentioned metes or bounds, courses or distances or monuments, title to lot 30 and the east half of lot 31 vested in the plaintiffs. According to the plan the frontage of lot 28 is 52.9 feet on Donald Street, lot 29 is 60 feet, and lot 30 is 50 feet. Measuring on the ground the distances called for by the plan from the easterly bound of lot 28 to the westerly bound of lot 35 there is a shortage of approximately six feet. It is this six feet which is in dispute between the parties. The plaintiffs claim that their easterly bound is six feet farther east than is called for by the defendant's deed. If they are correct in their contention, the width of lot 29 would be 54 feet instead of 60 feet as shown on the plan.

The sitting justice has found that when the Chamberlains acquired lots 28 and 29 in September 1921 there were wooden stakes such as surveyors use marking the boundary between lots 29 and 30 and that Chamberlain replaced these stakes with iron pins; that the pin on Donald Street remains in the same location as Chamberlain placed it; and that this pin marked the boundary as claimed by the plaintiffs. There was also a finding that this boundary was acquiesced in at least passively for over twenty years.

He ruled that the record title to the strip was in the defendant; that the plaintiffs, under the doctrine of Landry v. Giguere, 127 Me. 264, 143 A. 1, did not gain title to this strip by adverse possession; and that neither the parties nor any of their predecessors established the line marked by the stake of agreement. Bemis v. Bradley, 126 Me. 462, 139 A....