Franklin Wharf Co. v. City of Portland , 46 Me. 42 ( 1858 )

The opinion of the Court was delivered by

Hathaway, J.

Under the pleadings, the burden of proof is upon the appellants, to establish their title to the land, upon which the street was located, by the defendants. Their title appears to have been derived, through mesne conveyance, from the Portland Marine Railway, as by their deeds to Abel Chase & als., of July 1, 1850.

One of the boundaries of the land conveyed, as described in the deeds, was the south-westerly side line of Thames street.

Thames street, the line of which was named as the boundary, was in tide waters, was never made, and has never had existence, as a street, at the place where it was named as a boundary, except on the records of the town of Falmouth; and the Judge properly instructed the jury, that its location, by the town of Falmouth, in 1760, was void.

Although the side line of the street, as located, might be a sufficient designation of the boundary of the land conveyed; yet, the location being void — there being, in fact, no street there — and, as it does not appear that the complainants, or those under whom they claim, ever owned any portion of the land upon which such void location was made — the deeds, under which the appellants derive their title, did not include any part of the land covered by such void location. Bangor House v. Brown, 33 Maine, 314.

The instruction of the Judge, therefore, that “ the jury might consider the title of the petitioners proved, to the centre of the street, as originally located in 1760,” was erroneous. It is unnecessary to consider the other questions presented in the case. Exceptions sustained.

Tenney, C. J., and May, Goodenow, and Davis, J. J., concurred.