Temple v. Benson
| Citation | 100 N.E. 63,213 Mass. 128 |
| Parties | TEMPLE v. BENSON. |
| Decision Date | 26 November 1912 |
| Court | United States State Supreme Judicial Court of Massachusetts |
Noxon & Eisner, of Pittsfield, for petitioner.
Mark E Couch, of North Adams, for respondent.
The petitioner by mesne conveyances and the respondent by direct grant derive title to their respective lands, which are contiguous on the south, from a common grantor, Sylvester A. Kemp, and as the duly recorded deed from him to Joseph Tinney, under whom the petitioner claims antedates his deed to the respondent, it follows upon comparison of the descriptions that when the position of the disputed southerly line of the petitioner's lot has been ascertained the northerly line of the respondent's lot also will have been defined, and the controversy determined. It is a familiar rule, in the construction of deeds, that where the land conveyed is described by courses and distances and also by monuments which are certain or capable of being made certain the monuments govern, and the measurements if they did not correspond must yield. Howe v. Bass, 2 Mass. 380, 3 Am. Dec. 59; Pernam v. Wead, 6 Mass. 131; Mann v. Dunham, 5 Gray, 511, 514; George v. Wood, 7 Allen, 14; Morse v. Rogers, 118 Mass. 572, 578; Percival v. Chase, 182 Mass. 371, 65 N.E. 800.
In its application natural or permanent objects, such as streams or rivers and the shore of the sea, or highways or other lands, or artificial land marks or signs such as fences, walls, a line, a building, or a stake and stones, are to be treated as monuments or boundaries. Storer v. Freeman, 6 Mass. 435, 4 Am. Dec. 155; King. v. King, 7 Mass. 496; Flagg v. Thurston, 13 Pick. 145; Whitman v. Boston & Maine R. R., 3 Allen, 133; Paine v. Woods, 108 Mass. 160; Boston v. Richardson, 13 Allen, 146; Needham v. Judson, 101 Mass. 155; Pernam v. Wead, 6 Mass. 131; Smith v. Smith, 110 Mass. 302; Charlestown v. Tufts, 111 Mass. 348; Frost v. Angier, 127 Mass. 212. And their identity may be established by extrinsic evidence. White v. Bliss, 8 Cush. 510, 512. The only exception recognized is where, by strict adherence to monuments, the construction is plainly inconsistent with the intention of the parties as expressed by all the terms of the grant. Davis v. Rainsford, 17 Mass. 207; Murdock v. Chapman, 9 Gray, 156; George v. Wood, 7 Allen, 14.
The petitioner had the burden of proving himself entitled to registration of the premises as described in the application. Bigelow Carpet Co. v. Wiggin, 209 Mass. 542, 95 N.E. 938. On the face of the deed no uncertainty as to the distances or the location of the monuments or boundaries is disclosed, yet upon applying the description to the land it became apparent that the southerly line must run at a right angle westerly from the stakes and stones in the west side of Summit avenue 'to land formerly owned by J. M. Canedy' or the call for a distance of eight rods cannot be satisfied. But if as claimed by the respondent, this line should run from the stake and stones to the Canedy land the abuttal or boundary on the west at a point distant seven rods from the south side of East Quincy street, the boundary on the north, it would exceed eight rods, and the area of the petitioner's land called for by his deed would fall correspondingly short as is clearly shown by the first sketch or plan forming part of the exceptions. The parties agreed that as marked on the plan the starting point of the lot was the northeast corner at the intersection of East Quincy street with Summit avenue, which never had been changed, and the respondent's exception to the admission of the deed of Kemp to Pattie D. Frost would seem to have become immaterial. It was however properly admitted. At the date of the deed to Frost East Quincy street although a private way opened by the grantor was a boundary common to the land conveyed to her as well as to the tract, a part of which was later deeded to the respondent, and grants of adjacent premises even between strangers are admissible where the location of the land for which registration is sought is in dispute. Sparhawk v. Bullard, 1 Metc. 95, 100; Devine v. Wyman, 131 Mass. 73.
The northerly boundary and point of beginning being certain, the easterly boundary was the west side of the avenue, measuring six rods to a stake and stones. The termini and length of the first course were thus fixed, and the stake and stones from which the second or southerly course starts locates and controls the easterly end. No further description is given and the presumption is, that this course whatever the interior angle may be ran straight to the land on the west although it could not be deflected by parol evidence to a point north of the Canedy land. Allen v. Kingsbury, 16 Pick. 235; Jenks v. Morgan, 6 Gray, 448; Hovey v. Sawyer, 5 Allen, 554, 555; Henshaw v. Mullens, 121 Mass. 143. The angle of departure however is not given, and as the southerly line claimed by each party is not irregular but when projected extended directly from land mark to land mark a material discrepancy in the measurement of the third or westerly course would be caused whichever position is taken. A latent ambiguity as the judge properly ruled, had been developed which could be removed only by proof of extrinsic facts. Frost v. Spaulding, 19 Pick. 445, 31 Am. Dec....
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