Graves v. Fisher , 5 Me. 69 ( 1827 )

Weston J.

There being no question about the side lines of the lots A. or B. the flats in controversy belong to the plaintiff as the owner of A. if that lot extends to the river. The title of both the parties to their respective lots, is derived from a conveyance by James Bowdoin of lot A., to Abraham Preble. Jun., and of lot B. to Abraham, Preble. By that conveyance, lot A..is bounded easterly on Cathance river. Lot A. then very clearly embraced these flats. It is contended, however, that this plain and necessary result is to be controlled and modified by a certain plan, made by John Merrill, in 1772, upon which these lots were delineated. No plan is referred to, or mentioned in Boutdoin’s deed ; but it is urged, that the designation of the lots by letters implies and supposes a plan. This does not necessarily follow. A survey might be made, and the lots now owned by the parties, and the rear lots upon which they were bounded, might receive the names of A. B. C. and D. without making a plan. And if a plan was made, and A. did not, as laid down upon it, go to the river; if the owner did not refer to the plan, and thought proper distinctly and' expressly to extend it to the river, in his conveyance, he had a perfect right so to do; and the grantee would hold accordingly. But if the plan exhibited to the referees, and now produced to the court, had been referred to, the limits of A. would not thereby be curtailed. By that plan, the whole easterly line of A. is bounded on Cathance river. It is true, Molasses creek is there represented as entering upon the south side ofB., and extending northerly thereon; whereas, in fact, it enters upon A. But this mistake in the location of the creek, does not change the rights of the parties. The creek is not given as a boundary in the deed; but each lot is expressly bounded on the river; both in the deed and on the plan. When the survey was made, the waters of the river might have been so high, that the mouth of the creek might appear to the eye to be on B., and this may account for its having been thus delineated; but, however occasioned, this error in a part of the plan, altogether immaterial in fixing the location of the lots, can have no legal influence in the decision of the cause.

As to the objection to one of the referees, it appeared that prior to the hearing, being acquainted with the premises, he had a strong impression in regard to the merits of the case in controversy ; but he insisted that his mind was open to conviction; that he had n'e prejudice against the defendants, and that be was prepared to give due weight to whatever might be offered or urged in their favor. Referees are chosen and selected by the parties; and not unfre-quently from the knowledge they are supposed to possess of the facts and principles, which should influence their decision. If, at die time ' of their award, they should avow that the opinion they then gave was one which they had entertained prior to the hearing, and that nothing had appeared to change it, although their minds were open to conviction, and no imputation of unfairness could otherwise rest upon them, the court might, in the exercise of their discretion, accept their report. In this case, it is apparent, from facts which are undisputed, that the decision of the referees was in accordance with law, and that they could not, without violating law, have decided otherwise.

The exceptions are overruled; and the judgment of the court below affirmed.