Opinion
No. 4090.
Decided March 4, 1952.
The determination of the location on the ground of the starting point of a disputed boundary line between adjoining lands of the parties is a question of fact and the findings of the Trial Court must be sustained if supported by the evidence. Where the Trial Court determined upon sufficient evidence and a view the location of a large rock referred to in a deed as the starting point of the disputed boundary the Court was justified in altering the deed's description to have it conform to the location of this monument. An inquiry of the defendant as to what land she intended to convey was properly excluded where the intention was not communicated to the plaintiff grantees.
BILL IN EQUITY, to determine the boundary line between adjoining lands of the parties in Plaistow. On July 3, 1941, the defendant conveyed to plaintiffs part of her premises there situate by a deed having the following description: "A certain tract of land, with all the buildings thereon, situate in Plaistow, . . . bounded and described as follows: beginning at a stake and stones on Sweet Hill Road . . . by land of Sargent, . . . thence running by an old stone wall and fence about sixty (60) rods to a stake and stones on a high ridge near the old ox-bow; thence Northerly about twelve rods, to the highway leading from Newton to Haverhill; thence Northeasterly by said highway to the culvert at land . . . now of one West; thence running Northwesterly by land of said West to a stake at other land of said Crocker; thence Southwesterly; thence Northwesterly; thence Southwesterly — these three courses all by the bed of an old stone-wall by other land of said Crocker — to a stake at the base of a large rock; thence turning and running Southwesterly in a straight line by other land of said Crocker, six hundred and thirty-three (633) feet, more or less, to a stake at said highway first-mentioned, said last mentioned stake being seven feet East of the point where a line drawn from said highway at a right angle to said highway strikes an old well on said other land of said Crocker; thence turning and running Easterly or Southeasterly by said highway . . . about nine hundred and thirty-eight feet (938 ft.) to the point begun at. Said land hereby granted contains, as is believed, thirty-three acres, more or less . . . ." Emphasis supplied.
The controversy centers around that part of the description which is italicized although the issue to be decided is the location of the line which begins with the words "thence turning and running Southwesterly in a straight line" and ends with the words "an old well on said other land of said Crocker."
The plaintiffs claim that the starting point of this disputed boundary is at a point marked by an iron pipe at the base of a large rock on the easterly side of a barway or opening leading through a stone wall to other land of Crocker. On their contention this line would extend a distance of 588.5 feet.
The defendant, Crocker, claims that the starting point of that boundary is a point approximately 125 feet easterly along the wall from the point claimed by the plaintiffs and on her contention the line would extend the distance of 633 feet called for in the deed.
The Court (Goodnow, C.J.) after hearing with a view made findings and a decree in accordance with plaintiffs' contention.
Defendants' exceptions to the admission and exclusion of evidence (only those hereinafter discussed were relied on in this court) and to the denial of their motion to set aside the decree as being against the law, the evidence and the weight of the evidence were reserved and transferred.
George R. Scammon (by brief and orally), for the plaintiffs.
William H. Sleeper, Wayne J. Mullavey and Robert Shaw (Mr. Mullavey orally), for the defendants.
The main issue in this case is centered on the location on the ground of the starting point of the boundary in dispute. This was a question of fact for the Trial Court (Andrews v. Todd, 50 N.H. 565, 568; Coburn v. Coxeter, 51 N.H. 158, 162; Smart v. Huckins, 82 N.H. 342, 347) whose findings must be sustained if there is evidence to support them. Ballou v. Ballou, 95 N.H. 105, 106. We think there is.
The parties are in agreement that the starting point of this boundary was at a stake at the base of a large rock as it is stated in the deed. On the view the Court found a large rock where the plaintiffs maintain this line starts; there was none at the point contended for by the defendants, "nor at any other spot between the two claimed points." This may have furnished "a vital part of the evidence." Tetreault v. Gould, 83 N.H. 99, 102; Connors v. Turgeon, 96 N.H. 479, 481.
Further the disputed course in the deed starts with the words "thence turning and running Southwesterly." From the point claimed by the plaintiffs it would be necessary to "turn" in order to go southwesterly, but from the point claimed by the defendants there would need to be little "turning" as the direction would be practically one of continuing southwesterly rather than turning and running southwesterly. The next course in the deed, the direction of which is not in controversy, also starts with the words "thence turning" and there is no doubt that there is a definite change of direction similar to that which occurs in the course in controversy as determined by the Court.
Having thus determined on sufficient evidence the location on the premises of the large rock at which the disputed boundary starts the Court was justified in altering the description in the deed to have it conform to the location of this monument. Coburn v. Coxeter, supra, 162; Bartlett v. LaRochelle, 68 N.H. 211, 214; Morrison v. Johnson, 92 N.H. 219, 220.
Defendants excepted to the exclusion of a question asked of defendant Crocker as to whether she intended to convey any part of the land near the opening in the wall where the Court located the large rock and another similar question. It appears that these questions pertained to some intention on the part of the defendant Crocker which was not communicated to the plaintiffs. These questions were properly excluded. Smart v. Huckins, 82 N.H. 342, 348.
Exceptions overruled.
All concurred.