David Heaton & al. vs. Thomas Hodges, 14 Me. 66

After a continuance for advisement, the opinion of the Court was drawn up by Weston C. J. The title of both parties originates from the same source. But the tenant deduces his from an elder grant; and he has a right therefore to have his lot located according to that grant, whether it does or does not conflict with the title of the demandants. The starting point at Penobscot river, from which the line in controversy is to he run, and the course of that line are known and agreed.

By the grant, under which the tenant claims, that line was to be five miles and one hundred and eiglity-four rods in length, and to terminate at a stone monument. That monument, or the place where it stood, cannot now be ascertained. If the terminating point is not to be located more than five miles, one hundred and ninety-eight rods and twenty links from Penobscot river, the demandants have prevailed in their action. The grant before stated, was made or confirmed with reference to a plan.

It was understood on both sides at the trial, that there was not to be found on that plan, any scale, by which it was delineated. It has since been discovered, by a more thorough examination, that it was protracted upon a scale of one hundred and sixty rods to an inch. And it appears, that the length of the lino in dispute, as there laid down, is exactly eleven inches. This is equal only to five miles and an hundred and sixty rods. Whether upon this state of facts, the length of line, as deduced from the plan, or that which is actually given in the grant, is to govern, we are under no necessity of determining.

If the tenant is to be restricted to either, upon exact measure, he fails in his title. But it is contended, that from ike plan, and other facts proved at the trial, such large measure should he accorded to him, as would give him the demanded premises. And there is reason to believe, from those facts, as well as from the known and acknowledged liberality of admeasurement in the surveys of that period, that such would be the result, applying to this line the same ratio of extension and enlargement.

And if this were a question now for the first time presented, not having been before settled by tlie decisions and practice of our Courts, the argument, submitted by the senior counsel for the tenant, would be entitled to great weight and consideration. But a different rule having heretofore been adopted, we feel constrained to regard it as no longer an open question. It is of the highest importance, that settled rules of law, affecting the title to real estates, should be adhered to and preserved.

The true location of lots of laud, made with reference to plans, as ancieut as that under consideration, delineating lines, some of which had been made from actual survey, and others platted without being surveyed, has frequently been before the Supreme Judicial Court, both before and since our separation. We have understood the rule applied in. such cases has been, that the survey actually made, if it can be ascertained, is to govern' the location.

But if that could not be shown, or if none was made, and the lines were not drawn with reference to natural monuments, they were to be settled by the length of line given on the plan, according to its scale, exactly measured. It may have been deemed, that a departure from this rule, would be productive of too much uncertainty, from the want of unifonnity in the excess of admeasurement allowed by different surveyors, as well as in that, which may have been made by tire same surveyor. We have been referred to no adjudged case in the reports, presenting this question, prior to the separation.

A decision, however, was made upon it by the whole Court, in Bowman v. White, in 1801, prior to the commencement of the Massachusetts Reports, which is’ noticed in Loring v. Norton, 8 Greenl. 61. Since the separation, the case of the Proprietors of the Kennebec Purchase v. Tiffany, 1 Greenl. 219, may be regarded as being directly in point. The tenant’s title there, depended upon Winslow’s plan, made in 1761.

Winslow surveyed and fronted the lots on Kennebec river, there marking the corners of each ; and upon this base, he platted on his plan three tiers or ranges of lots, west of the river, each represented, by the scale on the plan, as one mile in length, and fifty rods in width; but he did not actually run any lines, or make any corners, except at the river. The space between the comers of each lot at the liver, was generally found to be fifty-four rods, instead of fifty. It thus appeared, that the excess of admeasurement made by Winslow, was about eight per cent. Accordingly when Dr.

Mc-Kecknie was employed by the proprietors, seven years afterwards, to survey a tract further west, but adjoining that laid down on Winslow’s plan, in order to ascertain the westerly line of Winslow’s lots, he measured three miles and seventy-two rods, instead of three miles, allowing about the same excess, which Winslow did in his survey on the river. We are not aware, that a single argument has been urged, in favor of liberal admeasurement, in the case before us, which did not apply with equal force in that case. Winslow’s rod was proved to be longer by four parts in fifty, than the exact rod.

His rod was necessarily applied, in ascertaining the width of each lot, and why was it not adopted also in ascertaining its length 2 McKecIcnie, an experienced surveyor of that day, so applied it. But the Court overruled this practical, but subsequent location, made in that early day, by a surveyor of the proprietors, and applied the exact rod to Winslow’s scale, in determining how far his lots should extend westerly from the river.

The late Chief Justice of this Court, who had been many years in extensive practice, prior to our separation, sustains his opinion in that case, by a reference to the application of the same rule to a tract of land, on the eastern side of the river. The result was, that on both sides, upon the principle of exact measurement, the proprietors succeeded in establishing their claim to a strip of land -between tracts, before supposed by their surveyors and themselves, to have been contiguous. A stronger case for the application of the rule now contended for, cannot well be imagined.

And yet we doubt not both those decisions were in accordance with what had been previously settled and decided in Massachusetts. Loring v. Norton, where the opinion of the Court was delivered by Judge Parris, was decided upon the same principles. In tlio case under consideration, neither the length of line given in file grant, or deduced from the plan, exactly measured, will give the tenant any part of the land defended; and in our judgment no other rule, than that of exact measurement, can be legally applied. Judgment on the verdict,