Counce v. Studley , 75 Me. 47 ( 1883 )

Barrows, J.

The description in the petition of the parcel of land of which partition is sought in this process appears to be sufficiently definite; but if the report of the commissioners appointed to make partition be accurate in its description of the lot as they found it (and this does not seem to be disputed) then the description in the petition is incorrect; and the commissioners have divided a lot which does not conform to that described in the petition. According to the call in the petition, the south line of the lot in question should be a straight line two hundred and five rods and fifteen links in length, beginning at the westerly shore of North Pond at the north east corner of Edwin Cushing’s lot and running westerly (which means west, Brandt v. Ogden, 1 Johns. 158; 2 Washburn’s R. E. 1st ed. 631,) by said Cushing’s north line to the south west corner of the home farm of the late Benjamin Gerrish and at land formerly owned by Daniel Newcomb, deceased. But it appears by the commissioners’ report and the statement in the exceptions that Cushing’s north line was not a continuous westei’ly line from the point begun at to the southwest corner of the Gerrish farm, but that there was a jog in it running north easterly at right angles with its general course, somewhat more than two rods and fifteen links ; so that after running westerly a distance of one hundred and nine rods upon a line parallel with Cushing’s north line and distant two rods and fifteen links at right angles therefrom at the point of beginning the commissioners came to land of said Cush-ing and thence ran " north easterly partly by said Gushing’s land, four rods at right angles with said Cushing’s line,5’ in order to malte the division line between the parties, and again westerly and parallel with Cushing’s line ninety-six rods to reach the land formerly owned by Daniel Newcomb, deceased. One of the consequences is, that as the land south of the division line thus established was assigned to the respondent he has his portion in two pieces, to one of “which he can have no access except on the land assigned to the petitioner, or land belonging to third persons and the report of the commissioners provides no way by which he can reach this strip. That this would always be a grave objection to the acceptance of a report, especially where the omission of all mention of the fact by the commissioners would seem to indicate that their attention had not been called to it as affecting the value of the parcel so situated, cannot be doubted. Whether it is an objection which is necessarily fatal, or whether it is one which is addressed to the discretion of the judge who hears the case at nisi prius, and is not the subject of exceptions, we have no occasion now to decide. The report cannot be accepted on account of the error in the description of the lots partition of which was ordered. Inasmuch, however, as there appears to be no controversy as to the petitioner’s ownership of the share which he claims in the lot, however the same may be bounded, and as the case will still be before the court at nisi prius, we see no reason why the order for an interlocutory judgment may not be stricken off, the petition amended so as to describe the lot correctly, and a new warrant issued. The case differs herein from Swanton v. Crooker, 52 Maine, 415, where the petitioner’s title was disputed and might depend upon the description given.

There is nothing before us to justify the respondent’s motion to dismiss; but so far as the order at nisi prius included the acceptance of the report, and the confirmation of the partition,

The exceptions are sustained.

Appleton, C. J., Walton; Daneorth, Virgin and Peters, JJ., concurred.