James Thomas & al. vs. Moses Patten & als., 13 Me. 329

The action was continued for advisement, and the opinion of the Court afterwards drawn up by WestoN C. J. The tenants are the owners of lot number thirty-nine, according to a plan made by Moses Hodsdon, May 14, 1801. There being no other description of that lot, its location must depend altogether upon the plan. And the courses, distances and other particulars in that plan are to have the same effect, as if recited and set forth in the deed. Davis et al. v. Rainsford, 17 Mass. 207; Ripley v. Berry et al. 5 Greenl. 24.

This is a rule of law well settled in our practice, in reference to deeds, containing no other description of the land conveyed, than the number of the lot and the number of the range, according to the plan of a township. The plan referred to in the deed, under which the tenants hold, has been produced ; and there does not appear to be any difficulty in locating the lot, according to the plan.

For although the surveyor has testified, that one of the side lines of lot number seventy-three, which on the plan produced, is also one of the side lines of thirty-nine, was not drawn upon the plan, when it went from his hands ; yet the other side line and the two end lines of thirty-nine being delineated, and the exact distance between the side lines marked on the plan, the true boundaries of that lot may be ascertained with entire precision.

The location of the whole range or tier of lots, of which this is one, is found by an exact admeasurement, according to the plan, from water-street, which is a fixed point. But it is insisted that this location is to be controlled by the monuments put down by the surveyor, subsequent to the plan, and prior to the deed. Had he established monuments at the angles, and had afterwards made a plan, which was intended to be a delineation of his survey, the plan must have yielded to the monuments, if there had been any discrepancy between them.

But no such construction has obtained, where the survey was subsequent to the plan. In Esmond v. Tarbox, 7 Greenl. 61, cited in the argument, although the survey was made by one surveyor, and the plan referred to by another, yet the survey preceded the plan, and the monuments held decisive in that case, were set up at the time of the survey. In Makepeace v. Bancroft, and in Davis et al. v. Rainsford, monuments were referred to in the deeds, which were afterwards located, and it being justly inferred that they were intended to conform to the deeds, they were regarded as conclusive upon the parties.

Here the monuments put up by the surveyor, were neither referred to in the deed, nor marked on the plan. The surveyor testifies that the error in the plan was discovered in 1802, and thereupon by a new' survey, the gore, a part of which is sought to be recovered in this action, was averaged between the lots, and stakes put down accordingly at the new corners thus established.

As his plan was made only the year before, and deeds had not then been given, to carry into effect the contemplated partition, it is somewhat remarkable, that a new plan was not made, or that the former one was not corrected, or at least some explanatory certificate entered upon it. And it is still more remarkable, that in the following year, when deeds of release were given, reference was made to a plan, then recently discovered to have been erroneous, without the slightest intimation, that- measures had been taken for its correction.

This accords so little with the conduct of men of ordinary prudence, as to throw distrust upon the accuracy of the surveyor, as to the time of the new survey ; and it illustrates the danger of suffering written memorials to be explained or modified by parol testimony, resting in memory ; especially after the lapse of many years.

But assuming, as it is proper to do, for the purposes of this inquiry, that the surveyor’s testimony is correct, both as to what was done and the time when, the new survey, and the monuments thereupon established, were not intended or designed to conform to the plan referred to in the deed under consideration ; so that this case bears no resemblance to those before cited. And wo are very clearly of opinion, that by law, lot number thirty-nine must depend for its location upon the plan of 1S01, to which, and to which alone, it refers for a description of the land, upon which it was to operate.

There is great reason to believe, that the proprietors of these lands, when apprized of the existence of the gore, then of trifling value, divided it among themselves, by widening their respective lots, and that the demandants assented to this arrangement, and participated in the division. And if, without violating the principles of law, the partition thus made could be held effectual, it would seem best to accord with the equity of the case. But lands can neither be conveyed, nor divided by parol. The law requires that this should be done by deed.

If parties will be so improvident as to pursue a different mode, and their confidence in each other turns out to have been misplaced, we are not at liberty to bend the law to meet the apparent justice of such a case. More injustice would be done than remedied, by thus unsettling the rules of law. There is no doubt, that one tenant in common may oust his co-tenants, and acquire by lapse of time, and by force of the statute of limitations, an estate in severalty. This effect could not arise from exclusive possession alone, because he would be presumed to hold for himself and his co-tenants.

But if long continued, without any claim on their part, and especially if their right had been denied or resisted, it would be evidence of ouster. In Rickard v. Rickard, 13 Rick. 251, several descents had been cast, and the estate in controversy had been settled in the probate office, in a manner inconsistent with the continuance of an estate in common. The other co-tenants, whose interest had not been asserted for over seventy years, were there held barred by the statute of limitations.

A tenant in common, who ousts his companion, is a wrongdoer, and we are aware of no reason, which presents his claim more favorably, than that of a disseisor. If his possession be continued and exclusive, and under circumstances from which an ouster may be inferred, the right of his co-tenant may be lost by lapse of time. The report states, that the tenants had used part of the land from time to time, as a place for the deposit of lumber. This seems to imply, that their occupancy of the land in this manner, was not constant, but remitted.

At any rate, as it applied to only part of the land, and was consistent with a tenancy in common, it does not justify the verdict, which excludes the demandants from the whole. On a further trial, the tenants will have it in their power to make as much of this point, as by law they may. Upon the whole, we are of opinion, that the jury were properly instructed at the trial; and as their verdict does not conform to their instruction in point of law, it is set aside, and a new trial granted.