Reynolds v. Boston Rubber Co.

35 N.E. 677, 160 Mass. 240, 1893 Mass. LEXIS 63

• Court: Massachusetts Supreme Judicial Court
• Decided: November 29, 1893
• Status: Published

Opinion

Allen, J.

The original owner of the premises now owned by the demandants and by the tenant in 1792 conveyed to the tenant’s predecessor in title a “tract of marsh land” bounded “northwardly on said Blaney upland, a ditch dividing said marsh from said upland,” and in 1808 he conveyed to the demandants’ predecessors in title “ a certain piece of upland ” bounded “ southerly on marsh land, ... a ditch dividing said upland from said marsh land.” The ditch in fact did not exactly follow the line of demarcation between the marsh and upland, which line was curved inward towards the upland something in the form of a bow, but it was a straight cut across, like the string of the bow, so that some marsh land was between the ditch and the line of demarcation which separated the marsh from the upland. This marsh between the upland and the ditch is the land in controversy.

The general rule is familiar, that, when the description of granted premises is clear, extrinsic evidence is not admissible to control it; but when it is uncertain, such evidence may be resorted to, and the acts of adjoining owners showing a practical construction adopted and acted upon are of great weight. Stone v. Clark, 1 Met. 378. Bond v. Fay, 12 Allen, 86. Miles v. Barrows, 122 Mass. 579. Lovejoy v. Lovett, 124 Mass. 270. Macdonald v. Morrill, 154 Mass. 270. In Kellogg v. Smith, 7 Cush. 375, there was evidence of the understanding and occupation of various and successive owners for more than one hundred years.

Such evidence was properly received in the present case ; and if upon the deeds themselves the true boundary line was doubtful, the evidence well warranted a finding that the true boundary was the ancient ditch.

Exceptions overruled.