1. The general rule that monuments control courses and distances
reasserted in reference to lands situated in New Hampshire.
2. A well known tract of land, embraced in an old patent and
long referred to by name in the laws of the state, containing
settlements which had been subject to the census and tax laws, if
called for in a subsequent grant made by the state, as the boundary
of a new grant, is such a monument as will draw to it the limits of
such subsequent grant, although its exterior lines were never
actually run and located on the ground, and the state will be
precluded from injecting a still later grant between the two prior
ones.
3. The premises in a grant were described as beginning at a
fixed point, and thence
"running east seven miles and one hundred and seventeen rods to
Hart's Location; thence southerly by the westerly boundary of said
location to a point so far south that a line drawn thence due south
shall strike the northwest corner of the Town of Burton; thence
south to said northwest corner of Burton; thence westerly,"
&c., to the beginning.
Held:
1. That if, when the grant was made, there was a tract well
known as Hart's Location, lying easterly and in the vicinity of the
land granted, and if it had a westerly boundary to which the
granted tract could by any reasonable possibility extend, then
Hart's Location was a monument which controlled the courses and
distances of the survey, and this though the western boundary of
Hart's location had never been actually surveyed on the ground, and
though the northwest corner of Burton did not lie due south from
any part of said western boundary.
2. That in such case the connection between the two monuments --
the western boundary of Hart's Location and the northwest corner of
Burton -- would be the shortest line between them, though the
course should be different from that named in the grant.
The facts are stated in the opinion of the Court.
Page 103 U. S. 317
MR. JUSTICE BRADLEY delivered the opinion of the Court.
This is a writ of entry brought by the Bartlett Land and Lumber
Company against Saunders to recover possession of a certain tract
of land in Grafton County, New Hampshire, described as follows:
"Beginning at the northwest corner of the Town of Albany, and
thence running north about 3 degrees east, 3 miles and 65 rods, to
a spruce tree marked, and from thence north about 6 degrees east, 4
miles and 95 rods, to a fir tree marked, and from thence south
about 87 1/2 degrees east to the westerly line of Hart's Location,
and to the easterly line of Grafton County as established by the
Act approved July 3, 1875 entitled 'An Act establishing the east
line of Grafton County,' and from thence along the east line of
Grafton County to the bound begun at, and containing 8,000 acres of
land, more or less."
The defendant filed a plea defending his right in and denying
disseisin of all the land described in the plaintiff's writ which
is included in the following-described tract,
viz.:
"Beginning at the northwest corner of the Town of Albany,
formerly called Burton, and thence running north about three
degrees east, three miles and sixty-five rods, to a spruce tree
marked, and from thence north about six degrees east, four miles
and ninety-five rods to a fir tree marked, and from thence south
about eighty-seven and one-half degrees east to the westerly line
of Hart's Location; thence southerly by the westerly line of Hart's
Location to the point in said westerly line nearest to the
northwest corner of said Albany; thence in a straight line to the
northwest corner of said Albany."
He disclaimed title to the remainder of the land claimed in the
demandant's writ.
Upon these issues the cause came on to be tried, and after the
demandant's evidence was adduced, the court instructed the jury
that, upon the case made thereby, the demandant was not entitled to
recover. A verdict was given for the defendant and judgment
rendered accordingly. The present writ of error is brought to
reverse this judgment.
Page 103 U. S. 318
The specific points raised upon the trial upon which the court
was called upon to pass are presented by a bill of exceptions,
which exhibits the evidence in detail. Such parts of this evidence
as may be necessary to understand the matters of law raised by the
writ of error will be adverted to.
The demandant, on the trial, produced and deraigned title under
a quitclaim deed from James Willey, Land Commissioner of the State
of New Hampshire, to Alpheus Bean and others dated Nov. 26, 1831,
made by authority of a resolve of the legislature which included
the lands claimed in the writ.
The demandant also produced a prior deed under which the
defendant claimed the land described in his plea, being a deed from
Abner R. Kelly, Treasurer of the State of New Hampshire, to Jasper
Elkins and others, dated Aug. 31, 1830, and made by authority of a
resolve of the legislature, which deed purported to convey the
following-described tract in the County of Grafton, New Hampshire,
to-wit:
"Beginning at the northeast corner of the Town of Lincoln and
running east seven miles and one hundred and seventeen rods to
Hart's Location; thence southerly by the westerly boundary of said
location to a point so far south that a line drawn thence due south
shall strike the northwest corner of the Town of Burton; thence
south to said northwest corner of Burton; thence westerly along the
northern line of Waterville to the eastern boundary of Hatch and
Cheever's grant; thence northerly and westerly by said grant to the
east line of Thornton; thence by said line of Thornton northerly to
the line of Lincoln, and along this line to the point first
mentioned."
The principal question in the cause was whether the premises
thus granted to Elkins and others by the last-named deed embraced
the land described in the defendant's plea; if they did, as was
held by the judge at the trial, the defendant's was the elder title
to the land in dispute, and the title of the demandant failed, and
there is no error in the instructions as to the documentary
title.
The beginning corner of the premises granted to Elkins and
others was conceded to be a well known point, and the general
position of the first line of survey, which is described as
"running east 7 miles and 117 rods to Hart's Location," was not
disputed;
Page 103 U. S. 319
nor was the position of the northwest corner of the Town of
Burton (now Albany) disputed, it being a common point to which both
parties referred; nor were the lines of the Elkins survey from the
northwest corner of Burton "westerly along the northerly line of
Waterville, &c., to the point first mentioned" brought in
question. The only point in dispute was the eastern boundary of the
Elkins tract, the defendant contending that, by virtue of the deed
of 1830, it extended eastwardly to Hart's Location, covering the
disputed territory, and the demandant contending that it did not
extend further to the eastward than the northwest corner of Burton
(or Albany), and a line drawn north from that point.
The language of the grant is
"east 7 miles and 117 rods to Hart's Location; then southerly
by the westerly boundary of said location to a point so
far south that a line drawn thence due south shall strike the
northwest corner of the Town of Burton; thence"
&c. Now if, when the grant was made, there was a track known
as Hart's Location lying easterly and in the vicinity of the land
granted, and if it had a westerly boundary to which the granted
tract could by any reasonable possibility extend, no more apt
language for this purpose could have been adopted. It would be a
monument which would control courses and distances. If more or less
distant from the point of beginning than seven miles and one
hundred and seventeen rods, still it would control the survey. If a
line drawn due south from any point of its western boundary would
not strike the northwest corner of Burton, then they must be
connected by a line not running due south. The line of shortest
distance between said boundary and said northwest corner would be
the proper one, and this is the one that was adopted. Hart's
Location is called for, and to that location we are bound to
go.
The evidence was overwhelming and uncontradicted to show the
existence and notoriety of Hart's Location. It is a large tract of
land lying on both sides of the Saco River, directly to the
eastward of the Elkins tract. On the 27th of April, 1772, this
tract was granted by Governor Wentworth, in the name of the King,
to one Thomas Chadbourne. The plaintiff produced in evidence a copy
of that grant, having a plat or survey of the tract annexed to it.
The premises granted are described as follows:
Page 103 U. S. 320
"Beginning at a birch tree being the southwesterly corner bounds
of a tract of land granted to Mr. Vere Royse; from thence running
north four hundred and seventy rods, from thence extending westerly
the same breadth of four hundred and seventy rods, the distance of
two hundred and eighty-five rods, from thence running northwesterly
six hundred rods, from thence running nearly a north course
thirteen hundred rods until it meets the notch or narrowest passage
leading through the White Mountains lying upon Saco River."
The plat, or survey, annexed to the grant shows the Saco River
running through it. It follows the river on both sides from the
beginning of the survey up to the mountains. It is conceded that
the beginning corner is well known, and the general location of the
tract is undisputed. By the name of Hart's Location it has been
well known for nearly a century past. Its census has been published
in the laws like that of a regular township, and it seems to have
been treated in some sort as a
quasi-township. In the
state census published with the laws of 1815 and again in 1820, the
population of Hart's Location is put down as thirty-five for the
year 1810 and at sixty-five for 1820. In the acts for the
apportionment of the state tax among the several townships of the
state, the
pro rata share of Hart's Location was fixed at
eight cents on a thousand dollars in 1816; at twelve cents in 1820;
at ten cents in 1824; and at eight cents in 1829. By an Act
approved Dec. 24, 1828, it was resolved,
"That Hart's Location, in the County of Coos, be annexed and
classed with the Towns of Bartlett and Adams in said county for the
purpose of electing a representative to the general court until the
legislature shall otherwise order."
The demandant's principal witness stated that it had been a
political organization at one time, and sent a representative to
the general court.
But it was claimed by the demandant, and proof was offered to
show, that the western boundary of Hart's Location, being in a wild
and mountainous region, had never been located on the ground in
1830, and could not be located from the description contained in
the grant because it was too vague and uncertain to admit of a
fixed and definite survey. But the plat annexed to the grant and
referred to by the grant for greater certainty
Page 103 U. S. 321
did show a boundary line, laid down to a scale. If there was no
other evidence on the subject, this would be sufficient to show
that Hart's Location had a boundary, and a definite one, whether it
was ever actually run out on the ground or not. In or about 1803,
on occasion of a general perambulation of the townships of the
state made in pursuance of an act of the legislature, a survey of
Hart's Location was made by one Merrill by public authority and
deposited in the office of the secretary of state. This was also
produced in evidence on the trial, and showed a well defined map of
the location, laid down to a scale -- differing somewhat from the
plat annexed to the original grant, but not more than might be
naturally expected if the original was not used.
There can be no doubt, therefore, that when Hart's Location was
referred to in public acts and resolves, whether for the purpose of
taking the census, taxation, or political jurisdiction, it was
referred to as a defined tract or portion of territory within the
bounds of which the state claimed no proprietary interest. In 1830,
when the legislature, by a resolve, authorized, and by its
treasurer made, to Elkins and his associates a grant of land to
extend from the Town of Lincoln on the west to Hart's Location on
the east, the exterior line extending along "by the westerly
boundary of said location," it is difficult to find any ground for
uncertainty or ambiguity in the grant or to imagine how after that
the state or any persons claiming under the state could with any
show of reason claim that there was no such thing in being as a
Hart's Location having a western boundary, or that the Elkins grant
did not extend to and bound upon it. All rights of the state up to
and adjoining said location were as clearly disposed of as if the
two grants, that of Hart's Location and that to Elkins and others,
had been made in the same instrument -- granting to one party first
Hart's Location as described in Chadbourne's patent and then
granting to Elkins and his associates all the residue of the lands
westward to the Town of Lincoln between designated side lines on
the north and south.
The truth is that Hart's Location itself was the monument
indicated, whatever might be the location of its western boundary.
The existence of the location as a territorial subdivision
Page 103 U. S. 322
of New Hampshire was as notorious and certain as the existence
of any township in the state. It must of necessity have had a
boundary, whether that boundary had ever been actually surveyed on
the ground or not. The state owned all the land lying westerly of
it -- between it and the Township of Lincoln -- and this land had
never been granted to any person. It was wild mountainous land of
little value. The whole area, equal to the extent of a large
township and containing probably seventy or eighty square miles,
was in 1830 valued at only $800. All this tract thus lying to the
west of Hart's Location was granted to Elkins and his associates.
They may have been under an erroneous impression as to the true
location of the western boundary of Hart's Location, but, whatever
it was and whenever found, that was to be the boundary of the
grant.
It may be true, as stated by the Supreme Court of Massachusetts
in
Morse v. Rogers, 118 Mass. 573, 578, that where a
boundary is inadvertently inserted or cannot be found, or an
adherence to it would defeat the evident intent of the parties,
"the boundary may be rejected, and the extent of the grant be
determined by measurement, or other portions of the grant." But
that is not the case here. The evident intent of the parties was to
go to Hart's Location as a territory or known body of land, without
particular regard to a marked, designated, and visible line. It was
their intent to leave no land belonging to the state between that
territory and the tract granted. This was clearly the principal
object in view, and as Hart's Location must necessarily have a
western boundary somewhere, and as its limits and bounds were
shown, whether correctly or incorrectly, by public maps in the
archives of the state, it could not be said that this boundary was
incapable of ascertainment. To hold this, and abandon the call of
the deed for Hart's Location, and to confine the grantees to
courses and distances, would defeat instead of furthering the
intention of the parties. If the western boundary of Hart's
Location had never been surveyed on the ground, it could be
surveyed, or it could be located by agreement between the owners of
it and the owners of the Elkins grant. They were the only parties
who after that grant had any interest in the matter.
It may well be asked if the call for Hart's Location and its
Page 103 U. S. 323
western boundary can have no significance in the Elkins grant in
1830, how does it suddenly acquire significance in 1831, in the
grant under which the demandant claims? The language used is almost
exactly the same: "thence easterly to Hart's Location; thence
southeasterly by said Hart's Location" &c.
With the accumulated evidence on the subject which was presented
in the demandant's case, most of it of such a character as not to
admit of contradiction, we think that the judge was perfectly right
in assuming that Hart's Location was a monument sufficiently
definite to control the courses and distances given in the grant.
Indeed, we do not see how he could have done otherwise. The fact
that the Town of Burton, which lay to the south of Hart's Location,
extended so far westerly that its northwest corner would not be met
by a line drawn due south from any part of Hart's Location cannot
prevent the Elkins grant from extending to Hart's Location as its
eastern boundary as called for in the deed. As before stated, the
connection between this location and the northwest corner of
Burton, if it cannot be made by a line drawn due south as called
for, must necessarily be made by the line of shortest distance
between them. This is the surveyors' rule and the rule of law.
Campbell v. Branch, 4 Jones (N.C.) L. 313. It is
constantly applied when trees or monuments on or near the margin of
a river are called for in a deed where the river is a boundary.
We think that the judge did not err in relation to the
construction and effect of the Elkins deed.
But the demandant raised another point at the trial -- namely
that the owners of the Elkins grant had estopped themselves from
claiming under it any land eastwardly of a line running north from
the northwest corner of the Town of Burton, or Albany. The evidence
offered on this point tended to show that about or soon after the
date of the Elkins grant the grantees or some of them employed
surveyors to ascertain the extent and boundaries of the grant, and
that a line was run directly (or nearly) north from the northwest
corner of Burton to the north line of the grant, as the supposed
eastern boundary adjoining Hart's Location; but that this was done
without any communication or agreement with the proprietors of
Hart's
Page 103 U. S. 324
Location or any other parties having an interest in the
adjoining lands and in ignorance of the true western boundary of
that location on the land. The evidence consisted of the testimony
as to the declarations of some or one of the grantees as to the
running of such line made over forty years before and of a recent
examination of marked trees which indicated a date corresponding
with the period referred to.
We think that the judge was right in holding that this evidence
was totally insufficient, under the law of New Hampshire or any
other law, to show such a settlement of the line as to estop the
owners of the grant from claiming to the extent of the description
contained in the deed. Conceding that everything was proved which
the evidence tended to prove, it would only show that the grantees
made a tentative effort to find the limits of their property in a
mountainous and almost inaccessible wilderness, without
consultation or communication with any other parties and without
doing any act or thing that could in the least commit them in
relation to such parties. The only line shown to have been the
subject of any agreement was that located by Wilkins in 1850,
parallel to, and two hundred and thirty-five chains from, the Saco,
which was concurred in by Walker, the agent of the owners of the
Elkins grant, and one Davis, who professed to own one-half of
Hart's Location.
It is alleged by the counsel of the demandant that the law of
New Hampshire on the subject of estoppel as to boundary lines is
peculiar; that an agreement settling such lines, though made by
parol, is binding upon the parties and all those claiming under
them. Conceding this to be true, not the slightest evidence was
offered to show any agreement whatever, or even any communication,
between the adjoining owners prior to 1850, and the line then
agreed upon coincides substantially with that which is now claimed
by the defendant.
It is contended, however, that the running of the hypothetical
line northerly from the Burton corner was an estoppel as regards
the state; that the state, upon the faith of this line's being run
and marked by the Elkins grantees, entered upon the land eastward
of it and granted the same to Bean and others. That is, the state,
by legislative resolve and solemn grant, having in 1830 granted to
Elkins and others all the land
Page 103 U. S. 325
west of Hart's Location, had the right to reenter upon some
eight thousand acres of the same land in 1831 and grant it out to
third parties, because the Elkins grantees, in making an
ex
parte survey, had mistaken the position of the west boundary
of Hart's Location. There is no pretense, certainly no proof, that
this survey was made by any concurrence of the parties or that
there was even any communication between the agents of the state
and the Elkins grantees. The agents of the state simply lay by and
watched the operations of Elkins and company, and finding, or
supposing, that they had made a mistake, and had left a vacant
tract of land between the line they ran and Hart's Location,
stepped in and made another grant to other parties of nearly a
sixth part of the tract granted to the Elkins party. Not a particle
of evidence was produced to show any acquiescence on the part of
Elkins and his associates in this proceeding, or that they had any
notice or knowledge of it. So far as appears, they have never
acknowledged the right of these new grantees, nor have they ever
admitted that anyone had any right to interfere with the extension
of their land eastwardly to Hart's Location. We think no case can
be found that would make out an estoppel under such circumstances
as these.
We have been referred with much confidence to the case of
The Proprietors of Enfield v. Day, 11 N.H. 520. We have
carefully examined this case, and do not find in it anything to
support the proposition contended for. There, the state interposed,
after due notice to the parties and an inquiry by the legislature
in reference to the true and right ownership of a certain gore
between two adjoining townships which by an alleged mistake of a
figure had not been included in the grant (of Enfield) in which it
was intended to be. The south line was south 68� east in the deed,
when it should have been south 58� east. The grant of Grantham was
made a few years afterwards, binding on Enfield, but having the
right course (south 58� east) for its north line. On the
application of the proprietors of Enfield and adjoining townships,
the legislature was applied to to correct this error, and
commissioners were appointed to run the true line, and the disputed
gore was granted to Enfield. The parties acquiesced for twenty
years, and the question
Page 103 U. S. 326
was whether Enfield had sufficient seisin and color of title to
claim the benefit of the statute of limitations, and the court held
that it had. But the court expressed itself with great caution as
follows:
"In this case, we are clearly of opinion the seisin would not
pass by the mere effect of the second grant; but was there not such
a previous reentry and assertion of right on the part of the
government as to constitute, together with the grant, a conveyance
with livery of seisin? An entry upon the land by the government
agents and the running anew and remarking of lines with the express
design of a reconveyance to rectify a former mistake would seem to
be evidence sufficient to show an actual possession in the
government of any given tract."
Was anything of this kind done in the present case? Were the
Elkins grantees notified of any error or mistake? Were they
informed of the intention to regrant a portion of the tract granted
to them? Did they acquiesce in such proceedings? Nothing of the
kind. But the court adds:
"The proceedings of the legislature were had on public notice
and actual service on the proprietors of Grantham. They also had
full knowledge of the subsequent proceedings of the proprietors of
Enfield, in their entry upon and frequent sales of portions of this
gore of land, claiming the whole under the grant from the state,
and must be regarded as acquiescing in such adverse possession and
claim. It is now too late for the proprietors of Grantham to assert
their title."
It is obvious that the cases are totally distinct, and it is
unnecessary to discuss the subject further.
The judge on this part of the case instructed the jury that
there was no evidence before them to estop or bar those claiming
under the Elkins grant from maintaining their line by the westerly
side of Hart's Location, and in this we think he was right.
Judgment affirmed.