Hanson & a. v. Russel & a., 28 N.H. 111

Eastman, J. At the time this action was commenced, the line between the towns of Bartlett and Albany, formerly Burton, was the dividing line between the counties of Coos and Carroll, Bartlett being in Coos and Albany in Carroll. Such being the fact, the defendants, at the outset, raise the question of jurisdiction, as being one that is decisive of the present suit. This question was not probably anticipated by the plaintiffs when the suit was commenced, but being raised, its decision becomes important to the rights of the parties.

The plaintiffs’ land is set forth as in the town of Bartlett, in the county of Coos, and as bounded on Burton north line, the action being commenced in Coos, and their right of action depends upon the question as to where that line is. If it be, as contended for by the plaintiffs, that the charter line is the one that is to govern between the parties, then the suit was rightly commenced in Coos, and the plaintiffs should have judgment for the trespass. But if the line that was located by the proprietors is the one that is to control, then the cutting was in Albany, and the plaintiffs must fail.

The case shows that the proprietors run and established their line more than fifty years ago, and that the town of Albany has exercised jurisdiction up to that line ever since, and, of course, over the locus in quo. It also appears that the court of common pleas, which is by statute the proper tribunal to act in such cases, has established the same line between the towns of Albany and Bartlett, as the true jurisdictional line. This, although done since the commencement of this suit, and although having no binding effect upon the parties, is still evidence of the fact of the existence of the line.

These facts, disclosed in the case, must, we think, settle the jurisdictional line between the towns and counties. It is such a practical location, so long established and so long acquiesced in, that it must control the question of jurisdiction, and limit the extent of Coos county, in that direction, to the proprietors’ line. But although the locus in quo is within the jurisdiction of Carrol county, and, consequently, the suit was wrongfully brought in Coos, the action being local, yet it does not thereby follow that the plaintiffs have not a good cause of action, which may be sustained in the county of Carroll.

But even were the action rightfully brought, there are not sufficient facts found in the case to enable us to decide the question of ownership to the locus in quo as between these parties. The description in the deed, under which the plaintiffs say they claim, describes the line as Burton north line. At the time the deed was given, in 1831, there were two lines, known to some extent as Burton north lines, one being that which is indicated in the charter, and which the plaintiffs claim as the true one, and the other being that which the proprietors had established.

Now there is nothing in the deed to indicate which of these lines was intended. It may, perhaps, be a latent ambiguity, which might be explained upon a trial of the case. Perhaps a plan was used, in making the deed, which would aid in settling the question; and various other matters might appear, upon a full trial of the case, which would determine clearly the plaintiffs’rights. But we need make no further suggestions upon the merits of the case, since the question of jurisdiction settles the present action. Since the commencement of this suit the town of Bartlett has, by

an act of the Legislature, become a part of the county of Carroll, and no difficulty as to jurisdiction will arise upon another suit. The suggestion of counsel whether the present action could be tried in Coos, Bartlett being now a part of Carroll county, does not, after the conclusion to which we have arrived, require to be examined. It will, however, be found, we think, upon an examination of the act, that the difficulty suggested is provided against. Motion for nonsuit grmted.