Stefanick v. Fortona

• Decision Date: 14 October 1915
• Citation: 222 Mass. 83
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: KAROL STEFANICK v. JACOB FORTONA & another.

222 Mass. 83

KAROL STEFANICK v. JACOB FORTONA & another.

Supreme Judicial Court of Massachusetts, Berkshire.

October 14, 1915

September 14, 1915.

Present: RUGG, C.

J., LORING, CROSBY PIERCE, & CARROLL, JJ.

Deed. Boundary.

In an action of tort for obstructing a right of way adjoining the plaintiff's land, the only issue was in regard to a strip of land one and one half feet wide claimed both by the plaintiff and by the defendant. On the well established principle that monuments govern distances, the plaintiff's lot, which it appeared was rectangular, was sixty-six feet by one hundred and five and one half feet instead of sixty-six feet by one hundred and seven feet which last measurement was that of the distances named in the plaintiff's deed that would have fixed the boundary if they had not been controlled by the monuments also named therein. The plaintiff contended that the effect of defeating his title to the strip of land would be to leave the title to such strip in the common grantor of the plaintiff and the defendant, as the strip was not included in the description in the defendant's deed. Held, that if the title to the strip had not passed to the defendant, which did not appear this would not help the plaintiff, who did not own it and who must recover, if at all, on the strength of his own title and not on the weakness of the defendant's title.

In the case stated above, it also was held, that the particular description in the plaintiff's deed was not enlarged by the concluding words,

"Meaning to convey the northerly part of the Busby lot 107 x 66 feet," this being only a repetition of the distances stated in the earlier particular part of the description and being equally controlled by the monuments named in that part of the description.

TORT for obstructing an alleged right of way three feet in width extending for a distance of sixty-six feet along the entire southerly side of a lot of land belonging to the plaintiff on the northeast corner of Hoosac Street and Mill Street in Adams. Writ dated June 1, 1914.

In the Superior Court the case was submitted upon an agreed statement of facts to Fox, J., who, on the evidence described in the opinion, found for the plaintiff and assessed damages in the sum of $25.81. From a judgment entered in accordance with this finding the defendants appealed.

C. H. Wright, (W.

J. Donovan with him,) for the defendants.

E. K. McPeck, for the plaintiff, submitted a brief.

LORING, J. This is an action of tort for obstructing a right of way three feet wide and sixty-six feet long, butting on the southerly line of the plaintiff's land. It is conceded that the plaintiff had such a right of way, but the defendant contends that the true southerly line of the plaintiff's land is some eighteen inches farther north than that contended for by the plaintiff.

The facts which gave rise to the controversy are these: Before the conveyance to the plaintiff hereinafter set forth, one Cohen was the owner of a lot of land called the "Busby Lot," bounded on the south by Hoosac Street sixty-six feet, on the west by Mill Street one hundred and ninety-eight feet, and on the north and east by land of one Connors sixty-six and one hundred and ninety-eight feet respectively. On August 23 1910, Cohen conveyed to the plaintiff the following parcel of land: "Beginning at a point in line between lands of grantor and those of P. Connors, distant ninety-one (91) feet from a stone monument standing in northerly line of Hoosac Street, thence in east line of grantor's land one hundred and seven (107) feet to the lands of P. Connors; thence turning at right angle left and running in southerly line of said Connor's land sixty-six (66) feet to an iron pin driven in the approximate east line of Mill Street; thence turning left at an angle of 90 deg and running one hundred and seven (107) feet in approximate east line of Mill Street to iron pin driven; thence turning left at an angle of 90 deg and running sixty-six (66) feet to place of beginning. Meaning to convey the northerly part of the Busby lot 107-x-66 feet. In and as a part of the consideration of this deed the said grantor grants to the grantee and his heirs and assigns a right of way over a strip of land three (3) feet in width and extending easterly from Mill Street and adjoining the premises herein conveyed on the south."

The parties agreed that the circumstances under which this deed was drawn were as follows: "Prior to said conveyance Mr. Charles Sayles, a surveyor, was called upon to prepare a boundary line for the new lot to be sold to the plaintiff and was told about the portion that Mr. Cohen had decided to sell. He went to the premises and located a point which consisted of a stone in the ground at the southeast corner of said Cohen's lot, said marker standing in the incorrect street line, approximately eighteen (18) inches north of the true street line. He assumed that this marker stood in the true street line and, taking it for a point of beginning (this is the point of beginning set forth in the Stefanick deed) he measured northerly along the east line of the premises a distance of ninety-one (91) feet and there placed a pin in the ground,...