Rautenberg v. Munnis

• Decision Date: 24 February 1967
• Citation: 226 A.2d 770,108 N.H. 20
• Parties: Carl N. RAUTENBERG, Louise M. Rautenberg v. Albert MUNNIS, Veronica G. Munnis.
• Court: New Hampshire Supreme Court

Page 770

226 A.2d 770

108 N.H. 20

Carl N. RAUTENBERG, Louise M. Rautenberg v. Albert MUNNIS, Veronica G. Munnis.

Supreme Court of New Hampshire.

Argued Jan. 4, 1967.

Decided Feb. 24, 1967.

Wescott & Millham, Peter V. Millham, Laconia, for plaintiffs.

Upton, Sanders & Upton, J. Gilbert Upton, Concord, for defendants.

GRIMES, Justice.

Petition to remove a cloud from title and determine the boundary line between the property of the plaintiffs in Alton and that of the defendant Veronica G. Munnis which lies to the north. The Trial Judge (Grant, J.) found the line to be as contended by the defendants. We hold that the evidence supports his findings and that the trial was free from prejudicial error.

In 1901 Jones' trustee, who is the common predecessor in title, conveyed the northerly part known as Rum Point which is bounded northerly and easterly by Lake Winnipesaukee to one Flanders. Flanders conveyed to Loveren in 1940 who conveyed to defendant Veronica in March 1950.

The description in the deed from Jones to Flanders was as follows:

Beginning at an iron hub set in the ledge near the highwater mark on the shore of Lake Winnipiscogee thence running southwesterly thirty-six and five tenths (36.5) feet to a large spotted Pine tree at the northerly side of a contemplated road;thence by said road southerly and southwesterly two hundred twenty four and three tenths (224.3) feet to an iron hub set in the ground; thence southeasterly about two hundred fifty (250) feet to an iron set in a large boulder near highwater mark at the shore of said Lake; thence by the shore of said Lake to the point begun at, containing two and forty one-one hundredths (2.41) acres more or less.

Plaintiffs' parcel which is bounded on the east by the Lake was conveyed by Jones to Rollins in 1934 who conveyed it to the plaintiffs in September 1950.

The deed from Jones to Rollins begins at the southeasterly corner of the lot, runs westerly to the proposed road, thence northerly to the 'southwesterly corner of land formerly owned by Dana J. Flanders, conveyed to him by Herbert J. Jones, trustee, by deed dated December 2, 1901 * * * thence turning to the right and running easterly along said Flanders land two hundred and fifty (250) feet more or less to the shore line of said Lake, which point was supposed to have been marked by an iron set in a large boulder near highwater mark.'

While no iron hub was found in the ledge at the northwesterly corner of the defendants' parcel it is not disputed that a drill hole located there is the correct bound. There is also no dispute about the location of the southwesterly corner of the defendants' land (the westerly end of the common line) which is marked by an iron pin. The dispute arises over the location of the easterly end of the common boundary.

When Rollins conveyed to the plaintiffs the description of the northerly boundary line of the southerly parcel was changed to read as follows: 'thence turning to the right and running south about seventy-three degrees east in a straight line, along said Munnis land, to a pointed boulder at the shore, with an iron pipe driven on the shore side.' Plaintiffs contend that this correctly states the location of the boundary and establishes the disputed bound at a point marked D on Exhibit 3. Defendant contends that the easterly terminus of the disputed line is about 150 feet southerly along the shore from point D at point K on Exhibit 3 which is marked by a drill hole in a large boulder which is off shore. This leaves a triangular plot of 4/10 of an acre in dispute.

The evidence in disputed boundary cases is seldom all one way and it is for the Trial Judge to determine as questions of fact the location on the ground of boundaries described in the deeds. Fagan v. Grady, 101 N.H. 18, 21, 131 A.2d 441; Goodwin v. Johnson, 105 N.H. 294, 199 A.2d 97. The measurements of distances in the deed to Flanders are to the tenth of a foot and the quantity is stated as 2.41 acres more or less. From this it could be inferred that the land had been carefully surveyed even though the courses are stated generally. While boundaries if known control over estimates of quantity (Harmon v. Kennett Co., 103 N.H. 219, 225, 168 A.2d 482; Rollins v. Varney, 22 N.H. 99, 101), yet when area is stated in such precise terms as here it may be given weight in determining which of two disputed bounds is the correct one. Goodwin v. Johnson, supra; 12 Am.Jur.2d Boundaries, § 75; 11 C.J.S. Boundaries § 57. There was evidence that if the disputed bound were at D the defendants would have only two acres instead of 2.4 acres which they would have if it were at K. There was testimony that if the bound were at D the line would be described as running easterly instead of southeasterly as called for in the deed and that point K would make the line run S 44 degrees 22 minutes E, only a fraction of a degree from southeasterly. There is also evidence that the drill hole in the ledge at the northwest corner of the defendants' land and the one in the boulder at point K are the same diameter and there is opinion evidence that they were made by the same kind of drill which was not a plug drill, which is usually used, but was a type used to drill for blasting. There was evidence that when deeds called for iron hubs in boulders, it was not uncommon for surveyors to drill the...