Opinion
No. 4720.
Submitted April 8, 1959.
Decided June 30, 1959.
1. The Trial Court's determination of the location on the ground of the boundary line between the plaintiff's and defendants' premises was warranted by the evidence.
MOTION by plaintiff for a determination of the location of the northwest corner of his land situated on the east side of Chestnut Street in Portsmouth.
In a prior hearing (Pike v. Hartford, 100 N.H. 473) the Trial Court ruled "The northwest corner of the petitioner's land is found to be a point which is 25 feet south along Chestnut St. of the northwest corner of the tract which was first conveyed out of the Mendum Estate and now owned by the petitionees. The evidence is insufficient for a more specific finding."
This motion was referred to a master (Leonard C. Hardwick) by the Court, Leahy, C.J.
The master's report was in part as follows:
"The plot of land owned by the petitioner and petitionees is bounded on the south by Porter Street (formerly known as Warren Street) on the west by Chestnut Street and on the north by Congress Street . . . .
"The distance on Chestnut Street between Porter Street and Congress Street is approximately one hundred and fifty feet, as indicated by various deeds and leases.
"On July 23, 1894 Elvira P. Mendum conveyed to Charles H. Mendum a tract bounded southerly by Warren (Porter) Street and having a frontage on Chestnut Street of `seventy-five feet, more or less'. The northerly portion of this tract was deeded by the estate of Charles H. Mendum to Amon O. Benfield, the petitionees' predecessor in title, on January 16, 1902. The Chestnut Street boundary is described as having a frontage `twenty-five feet'. The southerly boundary as described in the deed was fixed as a twelve foot passageway. There was thus left out of the tract as described in the deed of July 23, 1894, from Mendum to Mendum a lot with frontage on Chestnut Street of fifty feet `more or less'.
"On December 30, 1902, the Charles H. Mendum estate deeded to Arabella Cotton the petitioner's predecessor in title. The deed merely described the westerly boundary as `Beginning at the northwesterly corner of the lot on Chestnut Street at a common passageway twelve feet wide and running southerly by Chestnut Street to Porter Street'. However by the decree of this Court in the prior hearing of this case [Pike v. Hartford, supra,] it was determined that title to the twelve foot passageway vested in the petitioner. Thus the petitioner acquired title to a tract with a frontage on Chestnut Street of fifty feet `more or less'.
"On July 11, 1914, John S. Melcher deeded to Fernando W. Hartford, the petitionees' predecessor in title, a tract bounded northerly by Congress Street with a frontage on Chestnut Street of `a distance fixed by plan in the offices of the assessors of taxes of said Portsmouth as seventy-five and 2/10 feet to land of Amon O. Benfield'.
"A building known as the DeWitt Hotel is now situate on petitioner's tract. The building itself was remodelled in 1903 when the roof was raised. No change was made in the foundation wall . . . .
"There is no available record of the specific layout of Porter Street or Congress Street that would definitely fix the corners of Congress and Chestnut or Porter and Chestnut Streets . . . .
"The line of the buildings on Congress Street easterly from Chestnut Street is not a straight line. However, the Master finds that the southwesterly corner of the foundation wall of the DeWitt Hotel building marks the junction of Porter and Chestnut Streets and that the northwesterly corner of the foundation wall of the Hartford building located on the petitionees property marks the junction of Congress and Chestnut Streets.
"The Master finds that the description in the deeds from Melcher to Hartford dated July 11, 1914, describing the Chestnut Street frontage as `seventy-five and 8/10 [sic] feet' and the deed from Mendum to Mendum dated July 23, 1894, describing the Chestnut Street frontage as `seventy-five feet' more or less indicates an intent of the original divider to split the Chestnut Street frontage in two equal parts. This would fix the westerly terminus of the boundary line between these two tracts where it intersects Chestnut Street at exactly one half the distance between the point marked by the northwesterly corner of the foundation of the Hartford building and the southwesterly corner of the foundation of the DeWitt Hotel building. Having thus determined that point, the westerly terminus of the boundary line between petitioner's and petitionees' property where it intersects Chestnut Street would lie twenty-five feet southerly in accord with the conveyance from Mendum to Benfield on January 16, 1902 . . . .
"In accordance with the direction of the Court, the Master establishes the northwesterly corner of the petitioner's land and the southwesterly corner of the petitionees' land at a point on Chestnut Street situate twenty-five feet southerly of one half the distance between the southwesterly corner of the foundation of the DeWitt Hotel building and the northwesterly corner of the foundation of the Hartford building. The boundary line between land of the parties shall then extend easterly on a straight line to corner as previously found by the Court in prior hearing."
The Court denied plaintiff's motions that the master's report be set aside as against the law, the evidence and the weight of the evidence and for a decree "that the southwesterly corner of the original Mendum tract and of the petitioner's land derived therefrom is the southwesterly corner of the foundation of the DeWitt Hotel adjacent to the intersection of Chestnut and Porter Streets" and "that the northwesterly corner of petitioner's land is a point on Chestnut Street situated not less than fifty feet northerly from the southwesterly corner of petitioner's land at the intersection of Chestnut and Porter Streets." The Court accepted and approved the master's report and issued a decree in accordance with its recommendations.
Plaintiff's bill of exceptions to the denial of his motions, the approval of the master's report and to the Court's decree was allowed and transferred.
Leo Liberson for the plaintiff, furnished no brief.
Griffin, Harrington and Brigham for the defendants, furnished no brief.
The main issue in this case is the location on the ground of the northwest corner of plaintiff's land. This is a question of fact and if there was any evidence to support the findings and recommendations of the master the Trial Court's action in approving his report and issuing a decree in accordance therewith must be sustained. Harris v. Crocker, 97 N.H. 311, 312; Fagan v. Grady, 101 N.H. 18, 22.
Plaintiff owns the DeWitt hotel situated at the corner of Chestnut and Porter Streets. When a double house was converted into the hotel in 1903 its foundation was not altered. There was evidence that the southwesterly corner of its foundation wall sets at the intersection of Chestnut and Porter Streets.
The Hartford building owned by the defendants is situated at the corner of Chestnut and Congress Streets. It was erected "in the '20's" and a plan received in evidence shows the northwesterly corner of this building to be at the intersection of Chestnut and Congress Streets.
A plan recorded with a deed in 1815 was introduced in evidence. It showed the distance on the easterly side of Chestnut Street between Porter and Congress Streets to be 150 feet.
By deed dated July 23, 1894, Elvira P. Mendum conveyed to Charles H. Mendum a tract bounded southerly by Warren (now Porter) Street and having a frontage on Chestnut Street of "seventy-five feet more or less." The northerly part thereof having a frontage of "twenty-five feet" on Chestnut Street was conveyed to Amon O. Benfield the defendants' predecessor in title. The balance with a frontage on Chestnut Street of fifty feet "more or less" and bounded on the south by Porter Street is now plaintiff's property.
The lot at the corner of Congress and Chestnut Streets on which the Hartford building is located was acquired by defendants' predecessor in title on July 11, 1914, from John S. Melcher. The deed described a tract bounded northerly by Congress Street, with a frontage on Chestnut Street of "a distance fixed by plan in the office of the assessors of taxes of said Portsmouth as seventy-five and 2/10 feet to land of Amon O. Benfield."
On the basis of the 1815 plan showing the distance on the east side of Chestnut Street between Porter and Congress Streets to be 150 feet and the above conveyances of these premises as being "seventy five and 2/10 feet" and "seventy five feet more or less" along Chestnut Street between Porter and Congress Streets the master could properly find that this "indicates an intent of the original divider to split the Chestnut Street frontage in two equal parts."
Having found that the northwest corner of the Hartford building marked the northerly end of the frontage on Chestnut Street and the southwesterly corner of the foundation of the DeWitt hotel the southerly end of it the master could properly find that "the westerly terminus of the boundary line between these two tracts where it intersects Chestnut Street at exactly one half the distance between the point marked by the northwesterly corner of the foundation of the Hartford building and the southwesterly corner of the foundation of the DeWitt Hotel building."
The parcel situated north of this midway point marking the westerly terminus on Chestnut Street of the boundary line between the two original tracts is owned by the defendants. Out of the tract south of that point the defendants' predecessor in title was conveyed a lot having a frontage on Chestnut Street of 25 feet (being "the tract which was first conveyed out of the Mendum Estate") and the balance of the land adjoining on the south is plaintiff's property. The master could therefore properly fix the northwesterly corner of plaintiff's land and the southwesterly corner of defendants' land "at a point on Chestnut Street situate twenty-five feet southerly of one half the distance between the southwesterly corner of the foundation of the DeWitt Hotel building and the northwesterly corner of the foundation of the Hartford building." As there is no dispute between the parties as to the easterly terminus of the boundary between their land the "boundary line between land of the parties shall then extend easterly on a straight line to corner as previously found by the Court in the prior hearing."
There being evidence in the record in support of the master's findings and recommendations, the Trial Court's approval thereof and decree in accordance therewith and the denial of contrary motions by the plaintiff were proper. Fagan v. Grady, 101 N.H. 18.
Decree affirmed.
All concurred.