MARY E. MORRISON & another vs. HARRIET E. HOLDER & another.

TORT for breaking and entering the plaintiffs' close on Linwood Street in Lynn, described by boundaries in the declaration, and there cutting down and injuring the plaintiffs' trees and undergrowth on November 13, 1908, and on divers days from that day until December 20, 1908. Writ in the Police Court of Lynn dated December 24, 1908.

On appeal to the Superior Court the case was tried before Ratigan, J. It was not disputed that trees were cut by the defendants on the land claimed by the plaintiffs, and the question tried was in regard to the plaintiffs' right to possession as determined by the ownership of the land. The facts necessary for the purpose of understanding the questions passed upon by this court are stated in the opinion. The jury returned a verdict for the plaintiffs in the sum of $5.59; and the defendants alleged exceptions to the admission of certain evidence, as described in the opinion, and to the refusal of the judge to instruct the jury as requested by the defendants "and to his instructions so far as they are inconsistent with the law." The character of the defendants' requests for instructions is stated in the opinion.

F. E. Shaw, for the defendants.

A. T. Cusack, for the plaintiffs.

BRALEY, J. The action is tort for breaking and entering the plaintiffs' close, with the further allegation that the defendants cut down, damaged and destroyed the trees and undergrowth. If under the R. L. c. 173, § 8, the place of the alleged trespass is designated in the declaration by name, boundaries, courses and distances, the plaintiffs need not prove the boundaries with the precision requisite in a writ of entry, where the whole title to the land described and demanded is put in issue. The judgment, if the plaintiffs prevail, determines only that a trespass has been

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committed on some part of the premises. Hall v. Mayo, 97 Mass. 416.

The plaintiffs and Harriet E. Holder, hereinafter referred to as the defendant, claim title to the land in dispute through mesne conveyances from Nathaniel Holder. The deed, however, of their common grantor to Flint, under which the plaintiffs derive title, antedates by many years the deeds to the defendant, and, if it can be located, they are entitled through the subsequent conveyances which were properly admitted, to the southerly half of all the land therein described. Temple v. Benson, 213 Mass. 128. But as the description is by courses and distances except the westerly boundary, designated as a private way known as Linwood Street, and the southerly corner of the lot is stated as the point of beginning, the southerly line, which is in controversy, cannot be located when the deed is applied to the land.

It is the plaintiffs' contention, that the point of departure should be fixed in the westerly line of the lot sixty-six and three one-hundredths feet southerly of an oak tree standing at the easterly side of the private way, which subsequently became a public street. The defendant, however, places the starting point as being opposite to the tree. If thus located the measurement on the way called for by the plaintiffs' deeds would be about equally divided, and the area of the original grant correspondingly diminished.

A question of fact which the jury were to determine having been raised, the defendant, who put in without objection documentary and parol evidence which she maintained established title in herself, excepted to nearly all the testimony introduced by the plaintiffs. Temple v. Benson, 213 Mass. 128, and cases cited. But, if it is necessary to consider the exceptions at some length, they are devoid of merit. The land conveyed to the parties formed only a part of a large tract owned by Nathaniel Holder, who after the deed to Flint made conveyances from time to time of adjoining parcels, although no plan of the entire premises with the subdivisions seems to have been prepared. The deeds and the plans showing these parcels, and the lots into which some of the parcels have been divided by the purchaser, were admissible as they all related to the original territory out of which the lands of the parties had been carved, and evidence that a natural monument, or a drill

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hole in a boulder, even if not mentioned in the deeds, but which has been treated by contiguous owners as a landmark, while not conclusive is competent where a boundary line is in dispute. Hathaway v. Evans, 108 Mass. 267. Coyle v. Cleary, 116 Mass. 208. Byam v. Robbins, 6 Allen 63, 65, 66. Morris v. Callanan, 105 Mass. 129. Temple v. Benson, 213 Mass. 128. The plaintiffs' surveyor to illustrate his testimony was also rightly permitted to use certain chalks and plans prepared from actual knowledge and surveys, and to testify concerning the location and boundaries of a part of the adjoining lots based upon information derived from a physical examination while in the employment of the company which had bought them.

It is sufficient ground for its admission, that all of the foregoing evidence tended to aid the jury in the proper application of perplexing and ambiguous documentary evidence. Hathaway v. Evans, 108 Mass. 267. Barrett v. Murphy, 140 Mass. 133. It is true that some of the statements of the plaintiffs' witnesses when describing the location of the ancient oak, the boulder with a drill hole, each of which according to their recollection had disappeared long before the trial, and of other monuments or boundaries referred to in the later deeds, were founded upon hearsay. But this objectionable feature was not disclosed in their direct examination, nor referred to by counsel when the defendant excepted. The source of their information was elicited in cross-examination. If the defendant had asked to have this portion excluded, upon refusal, exceptions then taken would have been available. A party, however, who without stating any reasons merely excepts to the admission of evidence appearing on its face to be relevant and admissible, but which afterwards in cross-examination is shown to be incompetent, can have the benefit of his exceptions only as they are pertinent to the question actually presented and passed upon by the judge when the ruling was given. Howard v. Hayward, 10 Met. 408. Holbrook v. Jackson, 7 Cush. 136, 154.

It was settled more than seventy years since in Stone v. Clark, 1 Met. 378, 381, that where the description in a deed is of doubtful import the construction given by the parties may be shown by their acts. The father of the plaintiffs, the third successor in title under the original grant, occupied and improved the premises during his lifetime, and the character and extent of his actual

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occupation could be described by witnesses who obtained their knowledge from personal observation. Graves v. Broughton, 185 Mass. 174. Gray v. Kelley, 190 Mass. 184. His declarations as to the use which he made of the land as a whole, or of the disputed portion, as well as naming the oak tree as marking the middle line running east and west of his ownership, and that he desired so to define the southerly line as to avoid trespassing on land now owned by the defendant, and the description in the deed given by him of the northerly half, having been made during his possession, and before any dispute had arisen over the title; were also competent not only at common law, but under the R. L. c. 175, § 66, where the interest of the declarant may affect the weight, but not the competency of the testimony. Daggett v. Shaw, 5 Met. 223. Wood v. Foster, 8 Allen 24. Luce v. Parsons, 192 Mass. 8, 12. O'Driscoll v. Lynn & Boston Railroad, 180 Mass. 187.

The defendant's exceptions to the refusal to give her requests and to instruct the jury as requested remain. The requests could not have been given in terms, and the questions presented were appropriately covered by the instructions. Very properly the judge declined to instruct upon or to emphasize a part of the testimony, or to assume as matter of law what were controverted issues of fact.

The plaintiffs claimed a fee simple, and the title deed of their ancestor had the same effect as if the grantor had entered upon the land and given actual possession. Ward v. Fuller, 15 Pick. 185. And, being in possession under a claim of right, this of itself, as the judge correctly told the jury when dealing with the fifth request, [Note p370-1] constituted a legal seisin entitling them to occupy and enjoy the premises unless the defendant had shown a better title. Newhall v. Wheeler, 7 Mass. 189. Slater v. Rawson, 6 Met. 439, 444. Peele v. Chester, 8 Allen 89, 92. Perry v. Weeks, 137 Mass. 584, 587.

The exceptions to the instructions "so far as they are inconsistent

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with the law" have not been overlooked, but a general exception which points out no error to the trial court, cannot be considered by this court. Oulighan v. Butler, 189 Mass. 287, 289, and cases cited.

Exceptions overruled.