Brewster v. Churchill

88 A.2d 585, 148 Me. 8, 1952 Me. LEXIS 3
CourtSupreme Judicial Court of Maine
DecidedMay 13, 1952
StatusPublished
Cited by1 cases

This text of 88 A.2d 585 (Brewster v. Churchill) is published on Counsel Stack Legal Research, covering Supreme Judicial Court of Maine primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brewster v. Churchill, 88 A.2d 585, 148 Me. 8, 1952 Me. LEXIS 3 (Me. 1952).

Opinion

Murchie, C. J.

In this action of trespass, a referee, hearing the case with the right of exceptions on questions of law reserved, as authorized by Rule 42 of the Rules of Court, 129 Me. 519, filed a report awarding the plaintiffs a recovery of $1,900, applicable largely to hardwood and softwood timber which the defendant removed from land of the [10]*10plaintiffs under a claim of title thereto. Something was included, it is true, for damage caused to young growth and to the realty, in the course of the defendant’s operation, but if he was the owner of the growth removed, those items would represent nothing more than an incident to a lawful woods operation. Defendant had title, as the grantee, direct or indirect, of parties to whom the plaintiffs had sold all the lumber of both species on a part of their land, to all he removed northerly of the southerly line described, identically, in the two deeds by which plaintiffs conveyed the same. The issue which must control the case is the location of that southerly line.

The line was described in said deeds as follows:

“Commencing at a stone wall at the roadside; thence easterly along said stone wall and continuing in an easterly direction to land now or formerly owned by Fred O. Smith.”

The referee decided that, after following the course of the wall from the roadside to its easterly end, the line ran “due east” therefrom to the westerly line of the Smith property. That decision was one of law and not of fact. It has been said many times in this Court that:

“What are the boundaries of land conveyed by a deed, is a question of law. Where the boundaries are, is a question of fact. An existing line of an adjoining tract may as well be a monument as any other object. And the identity of a monument found upon the ground with one referred to in the deed, is always a question”

for the jury, i.e. one of fact. Abbott v. Abbott, 51 Me. 575, Murray v. Munsey, 120 Me. 148, 113 A. 36; Perkins v. Jacobs, 124 Me. 347, 129 A. 4. No question of identity is here involved. The issue is the location of the southerly boundary.

The defendant filed written objections to the report as required by Rule 21 of the Rules of Court, 129 Me. 511, to [11]*11lay the groundwork for prosecuting exceptions to its acceptance if such action was taken. This was the only procedure available to him to enforce his reserved right. Camp Maqua Young Women’s Christian Association v. Inhabitants of Poland, 130 Me. 485, 157 A. 859; Lincoln v. Hall, 131 Me. 310, 162 A. 267; Staples v. Littlefield, 132 Me. 91, 167 A. 171; Throumoulos v. First National Bank of Biddeford, 132 Me. 232, 169 A. 307. The first of these cases calls attention to the change in practice enforced by the adoption of Rule 42 aforesaid, and the last makes it plain that the principle that allegations of error carried in bills of exceptions must be specific to justify review is applied in referred cases to written objections filed under Rule 21. The controlling force of the objections was emphasized in the recent case of Kennebunk, Kennebunkport and Wells Water District v. Maine Turnpike Authority, 145 Me. 35, 71 A. 2d. 520, where it was said, speaking of a referee’s report and objections, that:

“The report * * * must be interpreted in the light of the (this) alleged cause of action; and the reasons assigned as objection thereto must likewise be interpreted as applicable to the report.”

Before proceeding to a consideration of the issue defendant purports to raise by his Bill of Exceptions, incorporating all material requisite for its determination, including copies of the report and the objections, and carrying assertion that he is aggrieved by all the rulings and findings in the report “for the reasons specifically stated” in the objections, we must resolve that raised by the plaintiffs, in reliance on such cases as Heath, Appellant, 146 Me. 229, 79 A. 2d. 810, and Sard v. Sard, 147 Me. 46, 83 A. 2d. 286, that said Bill is inadequate to present any issue because, as their brief states:

“Nowhere in the Bill are the issues upon which the defendant claims reversal, set forth. The reasons by which defendant claims error are nowhere [12]*12set out in the Bill. There is no allegation that the Justice below found facts without evidence, or made rulings contrary to law.”

The references to the “Bill” and to the “Justice” must be intended to relate to the “objections” and the “Referee.” The Justice whose ruling accepting the report is under review found no facts, with or without evidence, and made no rulings, contrary to law or otherwise, except the one challenged, the acceptance of the report. The ruling controlling the case was, as heretofore stated, that the southerly line of the lot of land described in the deeds aforesaid ran “due east” from the easterly end of the wall which controls its course for twenty-eight and a half rods from the roadside identified as the place of beginning.

If it could be said that the decision was grounded in factual findings, the position taken by the plaintiffs would be entirely sound. Such findings, made by referees, will not be reviewed on exceptions unless under an allegation that the findings were made without support of evidence, or credible evidence, Staples v. Littlefield, supra. This principle would preclude consideration of the amount of the damage award carried in the report of the referee if it was not apparent that that amount was determined by the ruling of law locating the property line rather than by determination of the quantity of growth involved or the measure of the value thereof.

Reference to the objections leaves no doubt that the defendant identifies the stated ruling of the referee as the one of which he complains. The phraseology is confusing, perhaps, in its declaration that the referee ruled that the line went “in an easterly direction,” which he claims “was error,” whereas the ruling was that it ran “due east,” but no more so than the plaintiffs’ references to the Bill and the Justice in designating the objections and the referee.

[13]*13The ruling purports to have been made on the authority of Foster v. Foss, 77 Me. 279, quoting the declaration therein that unless there is some object to direct a course, the words “northerly and easterly” must “be taken to indicate a direction due north or east.”

Before referring to that case, and the language quoted from it, several recitals in the report which seem to be intended to support the construction applied to the deeds should be noted. These are that a line projected easterly along the course of the stone wall would not strike the westerly line of the Smith property, a monument fixing the easterly bound of that described in the deeds, but would intersect that line projected southerly ninety-three feet southerly of the southwesterly corner of said property; that if the line follows a course “due east” from the end of the stone wall, it will strike the westerly line of the Smith property “almost at right angles” and cover “almost the shortest possible distance”; and that the word “continuing,” as used in the description, “does not eliminate the possibility of some deviation of course” at the point identified.

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Cite This Page — Counsel Stack

Bluebook (online)
88 A.2d 585, 148 Me. 8, 1952 Me. LEXIS 3, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brewster-v-churchill-me-1952.