Yanish v. Tarbox

51 N.W. 1051, 49 Minn. 268, 1892 Minn. LEXIS 168

• Court: Supreme Court of Minnesota
• Decided: April 7, 1892
• Status: Published

Opinion

ColliNS, J.

On the trial of this action, which was brought to determine an adverse claim made by defendants to a part of lot four (4) of block twenty (20) in Olivier’s addition to West St. Paul, it became necessary for the court below to construe in the light of the testimony which had been produced the description found in a certain deed of conveyance, wherein the original patentee from the general government — one Belland — and his wife were grantors, and D. A. J. Baker grantee. The tract of land was described in said deed and in others,' through which defendants claim title to a part of lot four. (4) by metes and bounds, as follows: “Beginning at *' * *, the southeast corner of land, sold by Henry Belland to Joseph Craig; running thence south, twenty-seven degrees and ten minutes west, (27° 10/ W.,) six and seventy-nine one-hundredths chains, (6 79-100,) to a stake; thence north, seventy degrees and forty minutes east, (N. 70° and 40/ E.,) five and eight one-hundredths (5 8-100) chains, to a stake at the center of county road; thence north, thirty degrees and forty-five minutes east, (30° and i5' E.,) along the center line of said road, seven and thirty-four one-hundredths (7 34-100) chains to a stake; thence north, seventy-six degrees west,,(76° W.,) five and sixty-nine and one-half one-hundredths (5 and 69|--100) chains, to the point of beginning; containing three and eight-tenths (3 8-10) acres of land, be the same more or less.”

The deed bore date February 22, 1856, and was duly recorded some months prior to the laying out and platting of Olivier’s addition on the same government subdivision. The starting point mentioned, fixed and well known as “Craig’s Corner,” is, admittedly, easily located on the ground. From thence, reading the'description without any information or knowledge as to the location of the county road, the center line thereof being designated by courses and distances as the third boundary line, no error or uncertainty, appears until the last line is -reached. This, according to the deed, is thence, by a given course and distance, “to the point of beginning;” but the given course and distance, if followed, would terminate this last line about 200 feet north of Craig’s corner, the agreed place of beginning. The lines described by courses and distances would not complete the inclosure of any land. Without sufficient testimony as to the location of the county road, and hence as to the sites of the stakes in its center line, the description by courses and distances would, of necessity, govern. Where there are no monuments, or, if monuments once existing are goné, and the place where they originally stood cannot be ascertained, the courses and distances, when explicit, must govern, and cannot be controlled or affected by parol. Linscott v. Fernald, 5 Greenl. 497; Bell v. Morse, 6 N. H. 205; Bagley v. Morrill, 46 Vt. 94; Wilson v. Hildreth, 118 Mass. 578; Drew v. Swift, 46 N. Y. 204; Clark v. Wethey, 19 Wend. 320. But, while these courses and distances were explicit, the course and distance of. the last line would have to be rejected as erroneous, and effect given to the more certain description found in the deed, — thence “to the point of beginning.” Owings v. Freeman, 48 Minn. 483, (51 N. W. Rep. 476.) This follows from the general rule, applicable also to this entire description, that in identifying boundary lines fixed and known monuments or objects called for in a description — the point of beginning, Craig’s corner, and the county road and stakes therein, being such in this case — must prevail over .given courses and distances; the order of applying descriptions or boundaries being — First, to natural objects; second, to artificial marks; and, third, to courses and distances. 3 Washb. Real Prop. p. 631; Haynes v. Young, 36 Me. 557; Keenan v. Cavanaugh, 44 Vt. 268; Morse v. Rogers, 118 Mass. 572; Cunningham v. Curtis, 57 N. H. 157; Watson v. Jones, 85 Pa. St. 117; Muhlker v. Ruppert, 124 N. Y. 627, (26 N. E. Rep. 313.)

Should we read the description according to courses and distances, but rejecting those mentioned in the la,st line as erroneous, and bringing this line to the point of beginning, no part of lot four (4) would be brought within the boundaries of the tract of land conveyed by Belland to Baker; and it is this reading and construction which are insisted upon by plaintiffs.

The stakes mentioned in the description as the visible termini of the second and third lines called for could not be found upon the ground. There were no signs of a road in this immediate locality which would answer to that referred to; and it therefore became of vital importance to defendants that with reasonable certainty they should fix the former sites of these stakes, or locate the county road, the center of which-was made the easterly boundary line, one of the missing stakes marking each end thereof. There seemed to be no record evidence of the line of this road, and parol testimony was resorted to, not only for the purpose of fixing the site of the road, but for locating the stakes. And on this testimony the trial court found, in effect, the fact to be that the stake at the easterly end of the second line, in the center of the county road, was south, instead of north, seventy degrees and forty minutes east, (70° 40/ E.,)-five and eight one-hundredths (5.08) chains, from the stake at the southerly end of the first described line, over which line and stake there was no dispute; and that defendants’ easterly boundary-line, being the center line of the county road, run northerly from that point, obliquely across the upper end of lot four. (4,) the prescribed course and distance, to a point indicated by a stake standing when the deed was made, in the center of the county road. Taking this to be the real terminus of defendants’ boundary line on the east, a line running westerly on the course and for the distance stated in the deed named would practically strike the place of beginning. It would inclose a tract of land of about the number of acres called for. By these findings of fact the error in description was squarely placed, located, and thrown into the second course or call; the court holding that it was intended to read in the deeds, and that the proper construction of each deed is, that such course or call should be “ thence south, seventy degrees and forty minutes east,” instead of “thence north, seventy degrees,” etc. With the construction of the trial court the tract actually contained three and seventy-one one-hundredths (3.71) acres, and with the other construction there would be but two and sixty-five one-hundredths (2.65) acres. In either case the tract is trapeziform, the angles being less acute with the construction adopted by tue court than under the other.

The appellants attack these findings of fact as to the location of the. county road, and consequently as to the sites of the stakes which marked each end of the easterly boundary line, as unsupported by the evidence; and upon a careful examination of all testimony bearing upon the findings we are of the opinion that the appellants’ assignments of error as to this must be sustained.

The sufficiency of the testimony depends wholly upon that given by Henry Belland, a son of the original grantor. It seems that prior to the conveyance to Baker the land in controversy was known as the “Woodbury Tract.” In 1855 — about one year before .the Baker deed was made — it was surveyed out, and Henry, then a boy of 15 years, _ “went around with the crowd” and saw a stake stuck “down in a hollow north of” what has since been known as “King Street,” “about fifty or sixty feet north” thereof “in block 19.” This stake would not be far from where the court located the beginning of the fourth, or last, course of the description. . T>om that corner, the witness stated, the surveyor ran southwesterly across what is,now block 20, — which is south of 19, — across Mohawk to Baker street, where another stake was stuck. How long these stakes remained the witness does not know, save that in the year 1878 he found a stake in that locality, which he supposed to be the one placed in 1855, at or near what was afterwards called “Baker Street,” about where the court located' the commencement of' defendants’ third,, or easterly, boundary line. While it may not be of much consequence, it will be noticed that the witness in his description of this survey reversed the line, — that is, he had the surveyor running his first course easterly from the starting-point, instead of southerly, as the description of .the deed clearly indicates was the manner in which the lines therein mentioned were run, if run at all.

It was not made to appear on the trial what interest a person bearing the name of Woodbury had in the land when the survey was made, or why or for whom it was made. There was no attempt to connect Woodbury with Belland, or with Baker, or the survey with either, or with the Baker deed, executed and delivered one year after-wards. The testimony of the witness as to a county road in that vicinity was still more uncertain and unsatisfactory. There were no signs remaining of a former road, except in front of an old house in the north end of block 19. The witness stated there was a road, “most of the Woodbury tract” being on the north side of it. This was the road as traveled; but it was not straight, at one point “taking a circle around,” in the words of the witness. Again, there was a laid-out county road then, of which the witness said: “I knew pretty near, in that locality, where the road was laid officially; but we didn’t travel it as the road was located.” There was no effort made to fix the site of either of the stakes in the road as laid out, or as traveled, the nearest approach thereto being, on cross-examination, when Belland stated that the stake first set by the surveyor, in what became block 19 on the plat, “was right close to the old county road,” which at that point ran around a natural depression in the ground. While the testimony indicates that defendants’ claim is correct, we regard it as insufficient to fix and locate with reasonable certainty the stakes or the road on the easterly boundary, so as to throw the apparent error in the description out of the last line, where it would ordinarily be placed, and into the second, or to overcome the apparently certain description by courses and distances explicitly set forth in the deed. For this reason a new trial must be had, and in respect to such new trial it may be said that if the line of the old county road can be established, and the original stakes, or the sites which they formerly occupied, can be established or located with the certainty before mentioned, then the deeds from the senior Belland and wife to Baker, and from the latter to Lamprey, defendants’ predecessor in interest, may be construed in accordance with defendants’ contention.

(Opinion published 51 N. W. Rep. 1051.)

There is nothing in appellants’ position that Sache was a bona fide purchaser of the whole of lot four (4) for value. In the warranty deed from the original owner, Belland, and his wife, to Mrs. Blum, recorded January 28, 1857, the grantors conveyed “lot number three, (3,) and all their interest in lots numbered four (4) and five (5,) in block numbered twenty, (20,)” etc. The description was peculiar and significant. It was sufficient to put Mrs. Blum and all subsequent purchasers on inquiry, and no one claiming thereunder could acquire a greater interest in lot four (4) than was actually held, according to the record, by Belland when he executed and delivered his said deed.

Judgment reversed.

Mitchell, J., absent, sick, took no part.