If the real matter in controversy between these parties is the ownership of the strip of land forty-two feet long by four inches wide, covered by the north half of the north wall of the Johnson block, at the west end, as stated in the case, they have apparently succeeded to an extraordinary degree in avoiding the settlement of that controversy by the trial already had.
The plaintiff in his writ demands an undivided half of a strip eight inches in width, extending from Elm street to Church street, the northerly line of which is the north line of the Johnson block, — this line being also described as running at right angles to Elm street. The defendant pleads nul disseizin as to that portion of the demanded premises north of a line described as commencing four inches south of the northwest corner of the Johnson block; thence running forty-two feet at right angles to Elm street; thence north four inches parallel with Elm street; thence east, at right angles to Elm street, to Church street; and non tenure as to the rest.
I think it cannot be said but that upon the face of the record both of these descriptions are well enough would perhaps have saved some trouble and expense to the parties if the defendant had in the outset marked the line to which he claimed on the ground by visible monuments, and then described it in his plea by such monuments; but a right angle, erected at a given point upon a given line, certainly locates a line with mathematical precision, the only condition being that the line adopted as a base shall be precisely located. If the line of Elm street is located on the ground with mathematical certainty, line making a right angle with that street on the east side, and starting from a given point, is also located with mathematical certainty. So the plea could not be rejected, or held bad upon demurrer.
If there is a dispute as to the direction of the line of Elm-street, the settlement of that dispute determines the location of a line perpendicular to that street.
The evidence reported, and the defendant's diagram annexed to the case, show that the defendant claimed that the line, described in his plea as running at right angles to Elm street, ran in a different direction from the line described in the writ, as making a right angle with the same
street at the same point. That is, he claimed that, starting four inches south of the north-west corner of the Johnson block and running forty-two feet at right angles to Elm street, then making an offset of four inches to the north and continuing still at right angles, to Elm street, the line comes out on Church street three inches south of the northeast corner of the block, that is, of the east end of the line which is described in the writ as making a right angle with Elm street. But the plaintiff has described his north line by a visible monument on the ground, namely, the northerly line of the Johnson block; and by this he is bound, and must stand or fall at the trial.
If at the trial, as seems to have been the case, the defendant fixed the location of the line to which he claimed in the position indicated on his plan, then, most obviously, there was a controversy between the parties, not only as to the four-inch strip, but also as to the long strip three inches wide on Church street, five and a half inches wide near the middle, and running to a point on Elm street.
A verdict was ordered for the defendant on his plea of nul disseizin. Now, one of two things certainly follows: either the verdict settles the defendant's right to this strip, which would be the case if the line described in the plea is located on the ground as laid down in the plan; or it settles nothing at all with reference to this strip, which would be the case provided it was not ascertained at the trial where the line described in the plea is located on the ground. If we take the latter view, then the case manifestly must go back for the trial of this question, before any practical result can be reached. But if the former view be taken, then the question is, Was there evidence to be submitted to the jury tending to show that the line was in a different place from that claimed by the defendant? — and I think there was. But suppose there were not; or, suppose the question as to the true location, on the ground of a line making a right angle with Elm street, had been submitted to the jury, and they had found upon it in favor of the defendant, there still comes another question, which I clearly think ought to have been sent to the jury, and that is, whether there had been such adverse occupation of the premises between 1845, when the bakery was built, and the date of the writ, August 20, 1872, as to make a good title to this strip in the plaintiff; — and I am of opinion that there was such evidence. It is true, Brown testified that if the firm of Worthen Co., of which he was a member when they built the bakery, built over the line, he did not intend to claim beyond the line. But he says they did not intend to go beyond the line with their building; and I think the unequivocal act of erecting a permanent brick building, and occupying it for more than twenty years, is evidence of a claim of ownership of the ground on which it stands, which might properly be considered by the jury in connection with the somewhat equivocal declaration of the witness upon the question of how the firm of Worthen
Co. claimed to occupy the land.
For these reasons I think no judgment can be rendered on this verdict, which will establish the right of the defendant to the long,
narrow, and pointed strip of land lying north of what he claims to be the true line between the two lots, and between that line and the north line of the Johnson block.
It is obvious, from an inspection of the plan, that the verdict on the plea of non tenure is affected by the same considerations. It would seem probable that if the defendant should maintain the issue on the plea of nul disseizin, and at the same time establish the location of the line-described in that plea as claimed at the trial and indicated on his plan, the verdict as to tenure should be the other way, — for the reason that the flooring timbers entered by the defendant in the wall east of the forty-two feet, in that case, may not have extended beyond the line of his own land.
I think the verdict upon the issue presented by both pleas must be set aside, and a new trial granted.
If the real controversy is as to the ownership of the four-inch strip, the parties can consider whether it will not be well to amend their pleadings, in accordance with a suggestion in the case, so as to show it. If that is not the controversy, it will be best at the next trial to have the facts settled upon which their respective rights depend.
I think the deed from J. B. Hall to R. P. Hall, dated September 16, 1859, was admissible to disprove the plaintiff's seizin; and in the view I take, it is immaterial whether the deed of J. B. Hall to the plaintiff was sufficient to give color of title or not. Here was a wall which had furnished support to two adjacent buildings from the time the Tremont house was built to the date of the writ, a period of at least twenty-three years. Assuming the plaintiff's claim as to the location of a line at right angles with Elm street to be correct, one half of it stood on his land and the other half on the strip in controversy. Probably it had become a party wall, at least so far that the proprietor of each building had acquired an easement of support as against the proprietor of the other.
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If the real matter in controversy between these parties is the ownership of the strip of land forty-two feet long by four inches wide, covered by the north half of the north wall of the Johnson block, at the west end, as stated in the case, they have apparently succeeded to an extraordinary degree in avoiding the settlement of that controversy by the trial already had.
The plaintiff in his writ demands an undivided half of a strip eight inches in width, extending from Elm street to Church street, the northerly line of which is the north line of the Johnson block, — this line being also described as running at right angles to Elm street. The defendant pleads nul disseizin as to that portion of the demanded premises north of a line described as commencing four inches south of the northwest corner of the Johnson block; thence running forty-two feet at right angles to Elm street; thence north four inches parallel with Elm street; thence east, at right angles to Elm street, to Church street; and non tenure as to the rest.
I think it cannot be said but that upon the face of the record both of these descriptions are well enough would perhaps have saved some trouble and expense to the parties if the defendant had in the outset marked the line to which he claimed on the ground by visible monuments, and then described it in his plea by such monuments; but a right angle, erected at a given point upon a given line, certainly locates a line with mathematical precision, the only condition being that the line adopted as a base shall be precisely located. If the line of Elm street is located on the ground with mathematical certainty, line making a right angle with that street on the east side, and starting from a given point, is also located with mathematical certainty. So the plea could not be rejected, or held bad upon demurrer.
If there is a dispute as to the direction of the line of Elm-street, the settlement of that dispute determines the location of a line perpendicular to that street.
The evidence reported, and the defendant's diagram annexed to the case, show that the defendant claimed that the line, described in his plea as running at right angles to Elm street, ran in a different direction from the line described in the writ, as making a right angle with the same
street at the same point. That is, he claimed that, starting four inches south of the north-west corner of the Johnson block and running forty-two feet at right angles to Elm street, then making an offset of four inches to the north and continuing still at right angles, to Elm street, the line comes out on Church street three inches south of the northeast corner of the block, that is, of the east end of the line which is described in the writ as making a right angle with Elm street. But the plaintiff has described his north line by a visible monument on the ground, namely, the northerly line of the Johnson block; and by this he is bound, and must stand or fall at the trial.
If at the trial, as seems to have been the case, the defendant fixed the location of the line to which he claimed in the position indicated on his plan, then, most obviously, there was a controversy between the parties, not only as to the four-inch strip, but also as to the long strip three inches wide on Church street, five and a half inches wide near the middle, and running to a point on Elm street.
A verdict was ordered for the defendant on his plea of nul disseizin. Now, one of two things certainly follows: either the verdict settles the defendant's right to this strip, which would be the case if the line described in the plea is located on the ground as laid down in the plan; or it settles nothing at all with reference to this strip, which would be the case provided it was not ascertained at the trial where the line described in the plea is located on the ground. If we take the latter view, then the case manifestly must go back for the trial of this question, before any practical result can be reached. But if the former view be taken, then the question is, Was there evidence to be submitted to the jury tending to show that the line was in a different place from that claimed by the defendant? — and I think there was. But suppose there were not; or, suppose the question as to the true location, on the ground of a line making a right angle with Elm street, had been submitted to the jury, and they had found upon it in favor of the defendant, there still comes another question, which I clearly think ought to have been sent to the jury, and that is, whether there had been such adverse occupation of the premises between 1845, when the bakery was built, and the date of the writ, August 20, 1872, as to make a good title to this strip in the plaintiff; — and I am of opinion that there was such evidence. It is true, Brown testified that if the firm of Worthen Co., of which he was a member when they built the bakery, built over the line, he did not intend to claim beyond the line. But he says they did not intend to go beyond the line with their building; and I think the unequivocal act of erecting a permanent brick building, and occupying it for more than twenty years, is evidence of a claim of ownership of the ground on which it stands, which might properly be considered by the jury in connection with the somewhat equivocal declaration of the witness upon the question of how the firm of Worthen
Co. claimed to occupy the land.
For these reasons I think no judgment can be rendered on this verdict, which will establish the right of the defendant to the long,
narrow, and pointed strip of land lying north of what he claims to be the true line between the two lots, and between that line and the north line of the Johnson block.
It is obvious, from an inspection of the plan, that the verdict on the plea of non tenure is affected by the same considerations. It would seem probable that if the defendant should maintain the issue on the plea of nul disseizin, and at the same time establish the location of the line-described in that plea as claimed at the trial and indicated on his plan, the verdict as to tenure should be the other way, — for the reason that the flooring timbers entered by the defendant in the wall east of the forty-two feet, in that case, may not have extended beyond the line of his own land.
I think the verdict upon the issue presented by both pleas must be set aside, and a new trial granted.
If the real controversy is as to the ownership of the four-inch strip, the parties can consider whether it will not be well to amend their pleadings, in accordance with a suggestion in the case, so as to show it. If that is not the controversy, it will be best at the next trial to have the facts settled upon which their respective rights depend.
I think the deed from J. B. Hall to R. P. Hall, dated September 16, 1859, was admissible to disprove the plaintiff's seizin; and in the view I take, it is immaterial whether the deed of J. B. Hall to the plaintiff was sufficient to give color of title or not. Here was a wall which had furnished support to two adjacent buildings from the time the Tremont house was built to the date of the writ, a period of at least twenty-three years. Assuming the plaintiff's claim as to the location of a line at right angles with Elm street to be correct, one half of it stood on his land and the other half on the strip in controversy. Probably it had become a party wall, at least so far that the proprietor of each building had acquired an easement of support as against the proprietor of the other. If Hall had no seizin at the time of his deed to the plaintiff, that deed, of course, gave the plaintiff no seizin; and, admitting that the deed was sufficient to give color of title, the question would be whether there was such an entry and possession under it as to invest the plaintiff with the actual seizin.
The first inquiry is one of fact, namely, What did the plaintiff do with respect to the premises after the deed? — and if it appeared that he did anything, then would come the question of law whether his acts were sufficient to clothe him with the seizin to the extent of the boundaries set down in his deed. But the case shows that he did nothing, at least nothing more than to continue in the general occupation of the Johnson block. The defendant was also, at the same time, in the general occupation of the Tremont house. Neither tore down the wall between them, nor any part of it. The occupation by each of his own premises was entirely consistent, not only with an easement, but with an absolute title in the other to one half the wall. The occupation by both was the same after as it had been before the deed. There was no entry in fact. The learned counsel for the plaintiff says that "It
would be absurd to say that a man has no possession of the walls of house that he is living in as owner, where be has color of title to the land which the walls rest upon, as well as the rest of the land covered by the house, whether by one or several deeds." But the trouble with this is, that, so far as regards the matter of title, the plaintiff and defendant stand on an equal footing, that is, neither of them has any title at all; and so far as regards the matter of possession, there is just as good reason to say that the defendant's occupation of his building must include the land covered by its walls, as there is to say the same thing in favor of the plaintiff. I think the plaintiff's occupation of the block, — no other act of dominion or possession, and no actual entry, being shown, — was entirely insufficient, under the circumstances disclosed by the case, to give him a seizin in fact, such as he must show before he can maintain this action. This condition of his right is shown by the deed from J. B. Hall to R. P. Hall, and therefore that deed was properly admitted in evidence.
As to the testimony of Allen, I think, taken alone, it had no legal tendency to show the mathematical location of a line at right angles to Elm street. In connection with other evidence showing when, how, for what purpose, c., the stone posts were set in the street, there would seem to be no reason why it should not be received.