George N. Black versus Joseph T. Grant.
Where a deed of part of a township refers to a survey and plan of the township by A and B, surveyors, and it appears that A and B have never made any survey and plan jointly, but after A had surveyed the exterior lines of the township, B took A’s field notes, surveyed the interior lines, and .made a plan of the township, and it is shown that other deeds have been made by the same grantor, with a similar reference under like circumstances, the plan and survey made by B, with the help of A’s field notes, may be regarded as the one referred to in the deed.
Where a deed conveys the south half of a lot of land in a township, “butted and bounded as follows,” and then proceeds to describe the. whole of the south half of the township, up to the south line of land deeded to G, (the owner of the north half,) it will be construed to convey the south half of the township, as, in a case of doubtful construction, a deed is to be construed most strongly against the grantor, and in favor of the grantee.
A tenant who has been in possession for years, may maintain an action of trespass against an intruder who has no title.
Trespass quare clausum, for cutting trees on part of .township No. 21, Middle division, Hancock county. Plea general issue.
The plaintiff claims the southerly half of said township, under a deed to him by Joseph R. Ingersoll and others, *365trustees, by their attorney, John Black, dated Sept. 8, 1853, conveying to him " the south half of a certain lot” of land, lying in township No. 21, " and butted and bounded as follows : ” — the boundaries given are the exterior lines of the township on three sides, and on the fourth (north) side by "land sold to James Grant.”
The defendant, as heir of James Grant, deceased, owns the northerly half of the same township, under deed of the same trustees, dated Dec. 1, 1847. The description is given in the opinion of the Court.
The evidence with regard to the plans and surveys will be seen in the opinion, so far as important.
The defendant testified as to conversations he had with Col. John Black, about the time the deed was made; Black told him the minutes of Dodge’s survey had not been returned to him. Defendant did not know of Dodge’s survey, until after his father took a bond for the conveyance of the land, and had made some payments; did not know of a plan until the trial; discovered that Dodge’s center lino did not give them half of the township in 1859, and told the plaintiff of it; the plaintiff said there was a discount made on the notes, and the defendant had all he paid for.
The alleged trespass was by cutting trees on land south of the center line marked out by Dodge’s survey and plan, but not south of the true center of the township.
The case was heard before Bice, J., at JSFisi Prius, and the facts reported for the full Court to determine, upon the law and facts, what the rights of the parties are, the defendant, if defaulted, to be heard in damages.
Peters and Hale, for the plaintiff.
The plan made by Dodge, according to his own survey of the middle or partition line of the township, and the previous surveys by Peters of the exterior lines, is the one referred to in the deed to Grant. Although not a joint survey by Peters and Dodge, it was their survey in effect, and the only survey and plan of the township which was ever made by any such parties.
*366The deed of Grant bounds his land by the Dodge and Peters line, and he can claim no more than his deed gives him. It is of no consequence what Black said about the line or the township. The line of boundary is a fact, and must control. Grant saw how his land was limited and bounded by his deed, and he cannot enlarge or contradict its terms. The center line marked by Dodge on the face of the earth must govern. Williams v. Spaulding, 29 Maine, 112. Even the plan, being but evidence of the survey, must yield to the line as spotted and marked. As evidence, it however becomes important, for it shows that a line was run, and how, and when, and where.
The question is not whether Dodge’s plan was a handsome one, an accurate one, or what kind of a plan it was; but was it the plan referred to? If so, it decides the controversy.
Dodge’s line gives the plaintiff 6 or 700 acres the most land. But, suppose it had given the defendant the most, would it not have been binding ?
If Dodge’s line does not govern, a new one must be run. But an exact division of the township is impracticable. No two surveys of lines in the woods are alike. No two surveyors would agree in surveying the same line. Col. Black saw the force of this, and would never allow an established line to be changed.
Rowe, for the defendant.
The deed of the plaintiff conveys to him only the south half of the land described. The description embraces the south half of the township to Grant’s line on the north. Hence the plaintiff can have only the south half of the south half of the township, and does not own the land on which the alleged trespass was committed.
The defendant’s deed was prior to that of the plaintiff, and is recognized in the plaintiff’s deed as a valid existing conveyance. 'It conveyed to Grant the northerly half of the town, from the north line to the true centre line. There is no reference to any plan as a part of or to qualify the *367description. After describing the land conveyed, the grantors give their estimate of the number of acres, and refer to the' survey and plan of Peters and Dodge as the basis of their estimate.
The plan referred to in the defendant’s deed is evidently a joint plan of Peters and Dodge, not a survey by one and a plan by the other. The plan introduced by the plaintiff, is not a plan of the township, and does not purport to be, but is imperfect and indefinite. It does not mark out all the exterior bounds, except by dotted lines in part, and does not contain the streams, ponds or lots.
The case fails to show that this is the plan referred to, and it does not appear, by any positive proof, that the township wras ever surveyed at all. The defendant never saw or heard of this plan until it was produced at this trial. If Col. Black knew of it, he would have described it with some approach to accuracy. No man of his precision in business matters would have called this a plan of the township, or a plan by Peters and Dodge. The plan he referred to was a plan of a township six miles square, divided into equal halves, one of which, after deducting the reservations, would contain 9120 acres. Dodge’s plan does not answer the call of the deed in a single particular.
Grant’s line then extends to the exact center of the town. That center has not been precisely ascertained, but is south of the location of the alleged trespass.
It is only when the grant is made according to a plan distinctly and certainly designated by the deed, that the plan becomes a part of the deed; and, in such case, it is subject to no other explanations, than the other parts of the deed. Ohesley v. Holmes, 40 Maine, 546. The plan of Dodge does not fill this description. *
Monuments control plans. The intention governs all. The deed to Grant describes the township fully and completely, by monuments, and the linos of three adjoining townships, already ascertained and fixed, and a line to be run from the south-west corner of No. 28 to the north-east *368corner of No. 15. This plainly varied from the old line surveyed by Peters, and run south-west, instead of north and south.
It is not pretended that Dodge made a division of the township so described. Such a division is yet to be made, and the line thus found will he the true center line of No. 21, and the southerly boundary of Grant’s land.
The opinion of the Court was drawn up by
Cutting, J.
The plaintiff owns the south, and the defendant the north half of township numbered twenty-one, Middle Division, in Hancock County, and the principal controversy is, as to the divisional line.
Both parties claim under the devisees in trust of the estate of the late William Bingham; the defendant by a deed to his father, James Grant, deceased, (under whom he claims as heir,) prior in time to that of the plaintiff, whose deed describes his northern boundary (the line in dispute) as identical with the southern boundary of the defendant’s grant. So that the principal inquiry involves the construction of certain portions of Grant’s deed.
That deed, after describing the exterior lines of the township, concludes as follows: viz. — '"The part of said township intended to be conveyed by this deed, is the north half thereof, reserving therefrom two lots of three hundred twenty acres each, for public uses in said town, three lottery lots containing eight hundred acres, and six lots of one hundred sixty acres each, sold to settlers, leaving and containing nine thousand one hundred and twenty acres, more or less, according to a survey and plan of said town by Peters and Dodge, surveyors.”
It is contended by defendant’s counsel, that the reference to the survey and plan was confined to the reservations. Had the acres in the reservations, instead of those conveyed, been referred to, there would have been force in the argument. But the question returns, was there a survey and *369plan of Peters and Dodge existing at the time of the conveyance ?
Inasmuch as the defendant was entitled by his deed to the north half of the township, if no plan had been mentioned, and the plaintiff seeks to diminish that quantity by the exhibition of a plan, the burden is on him to prove it to be the plan refei’red to in the deed. This can be done by parole testimony, since the plan was not named as a matter of record. There was no survey and plan made jointly by Peters and Dodge exhibited, or any proof that such ever existed, but the contrary. Still, there must have been some survey and plan recognized by both parties to the conveyance, although, perhaps, designated by a wrong name. Hence, we may, as between these litigants, resort to the parol proof in order to ascertain that factl Upon this subject, the testimony of Addison Dodge is, that, in August, 1852, (which was prior to the delivery of the deed, although antedated for cause as explained by other portions of the evidence,) he surveyed the township, the exterior lines of which were originally run — east line by John Peters, senior — south and north lines bj John Peters, jr. — the west line, north half, by James Peters — the south half by John Peters — that he always had their field notes when he retraced their lines, which were kept at Ool. Black’s office— that his directions were, invariably, to take Peters’ minutes, examine them, and to follow their lines — that by the request of Black he run the divisional line parallel with and three miles south of the north line of the township, and, by bushing and spotting, well defined it — that soon after, he made a plan of his survey and delivered it to Black, (which plan was introduced and identified by him at the trial,) — that ho made the divisional line and projected on the plan the other lines from Peters’ survey. And George 8. Smith swears that he wrote the deed as dictated by Black, this plan being then in his office. Other deeds were introduced, made about the same time by Black, as agent of the proprietors, of portions of other townships, as also the plaintiff’s *370deed, referring to the survey and plan of John Peters and "Addison Dodge and Peters and Dodge; whereas, Dodge states that he never surveyed conjointly with either Peters, but only run interior lines in other townships as in this and made and returned similar plans. Upon such evidence, not materially impeached, we, to whom was referred the question of fact, are of the opinion that the survey and plan of Dodge was the one referred to in the deed. It was virtually the survey and plan of Peters and Dodge, not jointly, it is true, for the exterior lines were run and planned by Peters, and the interior by Dodge, but the parties might well characterize their several operations as a joint one, especially when exhibited on one plan.
There has been no suggestion of fraud, (and the reputation of the proprietor’s agent for honor and integrity forbid the idea,) and, had the township been six miles square, as it was supposed to be, the defendant would have received his just proportion, or, had it exceeded six miles from east to west, as it did from north to south, he would have been entitled to the surplus, in the same manner as the plaintiff now is in the diminution of that distance and the excess in the other direction. As it is, the defendant’s loss is less than two hundred acres, which, by the immutable rules of law, he must endure, rather than to lose the whole hereafter by an unauthorized and arbitrary change of long and well established legal principles.
But, assuming that the Court might arrive at the foregoing conclusion, it is further urged by defendant’s counsel, that the plaintiff has no cause of action, for his deed gives him no title to the premises on which the alleged trespass was committed. Or, in other words, that his deed conveys. only the south half of the south half of the township, leaving a quarter of the township south of the divisional line still in the trustees.
It is true that the deed conveys the south half of a lot of land in the township — "butted and bounded as follows”— describing the whole south half of the township *371and np to the south line of land deeded to Grant. But the boundaries must refer to the land conveyed and not to one half of it. If the construction be doubtful, it should be against the grantor and in favor of the grantee. Besides, it appears that the plaintiff was in possession for years previous to the defendant’s alleged trespass by lumbering thereon, up to the line, which gives a good title as against one who has none.
According to the agreement of the parties, the Defendant is to he defaulted, and heard in damages.
Tenney, C. J., Bice, Appleton, May and Kent, JJ., concurred.