Stefanick v. Fortuna

• Decision Date: 14 October 1915
• Citation: 109 N.E. 878,222 Mass. 83
• Parties: STEFANICK v. FORTUNA et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

222 Mass. 83

109 N.E. 878

STEFANICK

v.FORTUNA et al.

Supreme Judicial Court of Massachusetts, Berkshire.

Oct. 14, 1915.

Appeal from Superior Court, Berkshire County; Jabez Fox, Judge.

Action by Karol Stefanick against Jacob Fortuna and others. Judgment for plaintiff, and defendants appeal. Judgment ordered for defendants.

Charles H. Wright and Walter J. Donovan, both of Pittsfield, for appellants.

Edwin K. McPeck, of Adams, for appellee.

LORING, J.

This is an action of tort for obstructing a right of way 3 feet wide and 66 feet long, abutting 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 is inches farther north than that contended for here.

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 66 feet, on the west by Mill street 198 feet, and on the north and east by land of one Connors, 66 and 198 feet respectively. On August 23, 1910, Cohen conveyed to the plaintiff the following parced 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 Connors' 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° 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° and running sixty-six (66) feet to place of beginning. Meaning to convey the northerly part of the Busby lot 107x66 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, intending it for the point of beginning for the plaintiff's lot. He then turned at a right angle, as he supposed (he used no instrument other than his eye), and placed another pin in the east line of Mill street. This was all he did. He made no measurement of the distances from these points to the northerly line of the ‘Busby lot,’ but from these points to the northerly line of the ‘Busby lot’ the actual distance was one hundred five and five-tenths (105.5) feet. It was from a description of the premises furnished by Mr. Sayles that the deed to Stefanick was drawn.'

There are two discrepancies between the monuments described in the deed and the explanation as to monuments agreed upon by the parties. By the explanation agreed upon the surveyor put a pin in the ground to mark the southeast corner of the land conveyed, 91 feet north from the ‘stone in the ground at the southeast corner of said Cohen's lot’ which was erroneously assumed to be in the northerly line of Hoosac street. That pin is not referred to in the deed. On the other hand the deed refers to an iron pin at the intersection of Connors' line with ‘the approximate east line of Mill street,’ while the explanation agreed upon does not state that pin was placed in the ground at that point.

[1] No rule is better settled than the rule that monuments govern distances. See for example Frost v. Spaulding, 19 Pick, 445, 31 Am. Dec. 150;Morse v. Rogers, 118 Mass. 572;Miles v. Barrows, 122 Mass. 579;Hall v. Eaton, 139 Mass. 217, 29 N. E....