Kenniston v. Hannaford , 55 N.H. 268 ( 1875 )

If the doctrine be correctly stated in the cases of Elliot v. Heath, 6 N.H. 426, Flagg v. Bean, 25 N.H. 49, 65, Woodman v. Lane,7 N.H. 241, and Mills v. Pierce, 2 N.H. 11, that the same certainty required in the description of the premises in a conveyance of land will be sufficient in a writ of entry, it would follow that the north wall of Johnson's block would be a monument, and would control the given course, so that if the north line of Johnson's block is not at right angles with Elm street, it will still be the true boundary of the land demanded. The land demanded in the writ is just one half of the party wall extending back one hundred and twenty feet. There is no mistake about this, and there is in the declaration no dispute about straight lines and angles, and the demand is of one half of the party wall; and if it be true that the line described in the defendant's plea does not run parallel with the north line of the party wall, but diverges to the south, then it follows that there is a considerable portion of the east end of the party wall as demanded in the writ which is not disclaimed at all, and the plea of nul disseizin as to the west end covers considerably more than the north half.

The evidence tends strongly to show that the person who built Johnson's block built exactly according to his claim. It is true, he says, substantially, he did not intend to claim more than he owned, and that he did not intend to build on what he did not claim. The evidence, taken together, tends to show clearly a practical location of Johnson's block on the lot described in the deed, acquiesced in for more than twenty years, and settling conclusively that the north line of that block is the original dividing line between the lots.

If this be so, the defendant's deeds bounding on the same monument, the courses and distances must be controlled by it, and he cannot make out a title to anything more than the north half of the west end. The evidence tends to show all this, and of course to show that the defendant has no title to a portion of the land embraced in his plea of nul disseizin, and that he has not disclaimed all the land claimed in the writ on the east end. At the same time the defendant's evidence tends to show otherwise, and that if he makes out his title he maintains his plea of nul disseizin as to the portion on which he supported the beams of his extension, and that he has never occupied anything which he disclaims. There being thus evidence each way on both the pleas, the verdicts which were ordered must be set aside. I agree, however, with my brother LADD, that the evidence of Allen should not at another trial be received without further information as to the monuments which he assumed to indicate the lines of the streets.

FOSTER, C. J., C. C., concurred.

Verdict set aside.