Whitman v. Shaw

• Decision Date: 17 June 1896
• Citation: 166 Mass. 451,44 N.E. 333
• Parties: WHITMAN v. SHAW et al. SAME v. REED et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

166 Mass. 451

44 N.E. 333

WHITMAN

v.SHAW et al.

SAME

v.REED et al.

Supreme Judicial Court of Massachusetts, Suffolk.

June 17, 1896.

Exceptions from superior court, Suffolk county.

Actions by one Whitman against Shaw and others and against Reed and others to recover the possession of parcels of land in Brookline, Mass. There was judgment for plaintiffs, and defendants excepted. Exceptions overruled.Horace G. Allen and Norman M. Nye, for tenants.

Nathaniel U. Walker and Elder, Wait & Whitman, for demandants.

LATHROP, J.

These are two writs of entry to recover possession of two parcels of land in that part of Boston formerly Brookline, and lying on the southeasterly side of Brookline avenue, formerly known as the “Punch Bowl Road.” By St.1814, c. 39, § 1, the Boston & Roxbury Mill Corporation was incorporated, and authorized to “purchase and hold real and personal estate, (not exceeding in value two millions of dollars,) necessary to promote the objects of the corporation.” By section 2 it was authorized to build a dam from Charles street, at the westerly end of Beacon street, in Boston, to the upland at “Sewall's Point,” so-called, in Brookline; and by section 3 it was further authorized to “open a road not more than eighty feet, and not less than forty-two feet wide, from some point of said dam where it crosses the marshes in Brookline, to the end of the Worcester turnpike, near the ‘Punch Bowl Tavern,’ so called, in said Brookline.” It appears from the exceptions that in or about September, 1819, the corporation was at work on the Punch Bowl road, and built it to the width of 42 feet, taking the earth for the road from the marshes on the southeasterly side, and thus forming a canal. In 1832 the road was widened on the southeast 18 feet, so as to make the whole width of the road 60 feet. In 1814, Benjamin White and Warren White were seised in fee of a parcel of marsh land, which was thus described in a deed to Benjamin White in 1743: “Four acres, bounded as followeth: Easterly upon a creek, southeast upon marsh land of Robert Murdock, southwest upon marsh of Captain John Winchester and Mr. James Allen, westerly upon marsh of Thomas Woodward, and north upon marsh of Caleb Dana, however otherwise bounded, or reputed to be bounded.” The exceptions set out at length the chain of title from Benjamin White and Warren White to the demandants, but we understand that no question is made as to the title of the demandants, except as hereinafter stated. The writ, in the first case, relates to a parcel of land situated in the canal above mentioned, and the demandants contend that this is a part of the White marsh. The writ in the second case also relates, as the demandants contend, to a portion of the White marsh, being a strip of land containing 10,543 square feet, extending from the southeasterly side of the canal to a creek. The tenants contend that there was a lost grant of the first parcel from the owners of the White marsh to the predecessors in title of the tenants, if this parcel ever belonged to the White marsh, which they deny to be the fact. As to the land sought to be recovered in the second case, they contend that the boundary line follows the line of an old ditch across the marsh from the canal to the creek on the southerly side of the parcel demanded, and that there is no evidence that the White marsh ever included any part of this parcel. The tenants also claim adverse possession of both parcels for more than 20 years. The tenants' record title was under a deed executed in 1832, and duly recorded, by which the Boston & Roxbury Mill Corporation released all its right, title, and interest in and to all lands southeast of said Punch Bowl road to the Boston Water Power Company; next by a deed dated February 16, 1871, from the Boston Water Power Company to Ballou and others, trustees, which included, among other parcels of land, the parcels in question in this case, by metes and bounds, and by reference to a plan. This plan, however, the surveyor who made it, and who was called as a witness for the tenants, testified, on cross-examination, was not made as the result of any survey or examination of any existing plan, but was drawn so as to include the demanded premises by the direction of the then president of the Boston Water Power Company, he pointing out the boundaries on the ground. The deed and plan were duly recorded, and the tenants claim through intermediate conveyances from the grantees in this deed.

The justice of the superior court, who heard the case without a jury, found for the demandants, and also found specially that there was no lost grant of the first parcel of land. There were other special findings, but none of them is now material. It was not disputed that in 1819 William Aspinwall owned a tract of marsh land adjoining the White marsh on its northerly side, and by deed conveyed to the Boston & Roxbury Mill Corporation a portion of his marsh lot, bounded as follows: “Southerly on John Warren's marsh, southeasterly on marsh of Benjamin White, easterly, northeasterly, and northerly on the creek between the premises and marsh of David Hyslop and Jonathan Hammond, and northwesterly on my other marsh, by a line drawn parallel with, and forty-five feet from, the middle line of the new Punch Bowl road, which said corporation have lain out and partly made over the premises.” From this description, and the facts already stated, it appears that this deed conveyed a strip 45 feet in width, 21 feet of which would be in the road, and 24 feet in the canal. The deed, being an ancient deed, was evidence that the White marsh also extended at that time to the middle of the road, and included the land under the canal. The demandants do not in this case contend that they are entitled to possession of the land under the road.

The principal questions in the case relate to the admission in evidence of a plan and field notes alleged to have been made by Mather Withington in the year 1818, and to certain deeds supposed to refer to this plan; to the testimony of several surveyors in regard to the accuracy of this plan, and by whom it was made, and other plans based upon it. The plan itself has been produced before us. It is, without doubt, an ancient plan. It is stated by the counsel for the tenants in their brief that it purports to show nearly 100 acres of land, and we assume this to be so. It is drawn on a scale of four rods to an inch, and this fact is stated on the face of it. It shows the Punch Bowl road, and indicates the lines of the Brighton road, and of what is now the extension of Beacon street (though the two latter are not named) from the junction of the three roads; the marshes between the Brighton road and the Charles river; the marshes between the roads; and the marshes on the southeasterly side of the Punch Bowl road and the creek, which is the southeasterly boundary of the White marsh. It further shows the division of the marshes among the several owners, and the contents of each lot. On the margin are the names of the owners of marshes adjoining the three roads, with figures corresponding to the contents stated in the plan, and also the amounts of land under the road, and, in some instances, under the canal. The plan is not dated, and does not bear the name of any surveyor; but there was abundant evidence in the case that it was made by Mather Withington, who was a surveyor of acknowledged skill and accuracy, and who has long since deceased. There was also evidence, from a date in the field notes, that the survey was made in July, 1818. The plan appeared by the evidence to be well known to surveyors, and had been used and tested by them in their own surveys, and there was evidence that no earlier survey of the Brookline marshes was known. It is apparent, from an inspection of the plan and the evidence, that it related to actual transactions. It is not to be supposed that such a plan was made for amusement. The Boston & Roxbury Mill Corporation had authority to purchase land, and to build the roads over the marshes. It would be necessary to know who were the owners of the marshes, and how much each man owned, in order to ascertain to whom compensation should be made. A comprehensive survey of the entire tract would be indispensable. When we find still extant a plan of the land and field notes, showing the measurements, it is a fair inference of fact that the surveyor was employed either by the corporation or by the marsh owners, as they were the only ones interested in having the survey made. We do not find in our reports any well-defined statement of the rule in regard to the admissibility of ancient plans. In Chapman v. Edmands, 3 Allen, 512, an ancient plan which was in the possession of the persons under whom the demandants claimed, was held to be admissible against them, on the ground that it was a declaration against their interest. In Drury v. Railroad, 127 Mass. 571, 581, a plan made by Mather Withington in 1816, and a plan of the Blake estate, made in 1805, were admitted in evidence. The original bill of exceptions states that it was not contended that the Blake estate included any part of the estate in controversy, but the evidence was offered for the purpose of showing the boundaries between the Blake marsh and the land of one Clap, through whom the petitioner claimed title, and the position of the creek. It was held that the evidence was, at least, competent as tending to show the position of the creek which governed the claims of all adjacent proprietors of flats, “and in that respect was a common boundary to many interested persons.” As to the Withington plan, which covered the line in dispute, it was said that it “seems to have been admissible also in rebuttal, when accompanied by evidence that it came from the custody of those under whom the respondents claim to derive their title.” We do not understand...