Weeks v. Morin

• Decision Date: 03 February 1931
• Citation: 153 A. 471
• Parties: WEEKS v. MORIN.
• Court: New Hampshire Supreme Court

153 A. 471

WEEKS

v. MORIN.

Supreme Court of New Hampshire. Belknap.

Feb. 3, 1931.

Transferred from Superior Court, Belknap County; Burque, Judge.

Bill in equity by Fred R. Weeks against Thomas Morin to determine the boundary between adjoining lands and for the assessment of damages for alleged trespass on the plaintiff's close. Defendant set up title to the locus in quo both by deed and by prescription. The case was heard by a master, who took a view of the premises, found the facts, and assessed the plaintiff's damages. Judgment was ordered for the plaintiff on the master's report. Transferred upon the defendant's exceptions to the master's findings and to the entry of judgment thereon.

Judgment for the plaintiff.

Thomas P. Cheney, of Laconia, for plaintiff.

Napoleon J. Dyer and Frank P. Tilton, both of Laconia, for defendant.

SNOW, J.

The parties hold paper title to adjacent lots in the fourteenth range in the town of Gilford. Both lots are bounded on the east by the range line, the defendant's lot being the easterly portion of original lot No. 8 in said range and the plaintiff's the easterly portion of original lot No. 9 therein. The former lies northerly of the latter. The defendant acquired title March 28, 1901, by a deed which defines the lot conveyed as carrying a width, north and south, of thirty-six and one-third rods and as containing sixteen acres more or less. The plaintiff's deed, dated December 2, 1905, bounds the granted lot on the north by land formerly owned by "the Sleeper heirs," which is the land now owned by the defendant. Neither deed refers to monuments on the dividing line, and no earlier record of the titles is in evidence. It appears to be conceded that the boundary line between lots 8 and 9 is a straight line.

The master finds, in accordance with the plaintiff's claim, that the line runs easterly from a pile of stones, situated at the southwesterly corner of the defendant's lot through a stone bound marked "1836" set in the ground near the range line. The figure "8" is cut in the north face of this stone and the figure "9" in the south face. The trespass complained of was the cutting of growth on the land lying between said line and a one-strand wire fence nailed to trees twenty or more feet distant southerly therefrom, hereinafter called the disputed tract. The cutting is admitted and no exception is taken to the amount of damages awarded. The master finds that the occupation of this tract by the defendant has not been of a character to give him title thereto by prescription. On the foregoing findings, entry of judgment for the plaintiff followed as a matter of course. Therefore, the only question of law presented by the record is the sufficiency of the evidence to support the findings of the location of the true line and of the want of prescriptive title in the defendant.

On the question of the true line, the plaintiff testified that at the time of the purchase of his lot in 1905 his grantor pointed out to him a crooked beech tree as his northeast corner, and the stone bound marked "1836" as a line monument, stated to him that he did not know the exact location of his "lower corner," and explained that the strand of wire was placed on bis own land to keep his cattle from straying into the woods and was not on the line; that upon a recent survey he discovered the pile of stones at the southwest corner of the defendant's lot; and that the tree and these monuments are substantially in a straight line. The defendant's evidence, on the other hand, tended to show that, at the time of the purchase of his lot in 1901, his grantor agreed to mark the southerly line of his lot by monuments, and that shortly thereafter he found iron pipes driven in the ground at each end thereof, and between them a line of wooden stakes driven at intervals of thirty-five to forty feet; that subsequently thereto, in 1902, the plaintiff's grantor installed the wire fence on the line of said pipes and stakes; that shortly after his purchase he observed the stone marked "1836," but supposed it a gravestone; that he had no knowledge of the beech tree or pile of stones until shortly before the trial; that the plaintiff first called his attention to a dispute as to the line in 1928; that the line claimed by the plaintiff, and found by the master, is not parallel with his (the defendant's) north line, and at one end is less than thirty-six and one-third...