(112 Me. 209) MAY V. LABBE. (Supreme Judicial Court of Maine. Oct. 3, 1914.) 1. ENTRY, Writ of (§ 21*)-PLEAS-NUL DISSEISIN-PRIMA FACIE CASE. In a real action tried on a plea of nul disseisin, a warranty deed to plaintiff, or to the one from whom plaintiff has a quitclaim deed, is sufficient prima facie evidence of title in plaintiff to authorize a verdict in his favor, unless defendant proves a better title. [Ed. Note. For other cases, see Entry, Writ of, Cent. Dig. §§ 39-42; Dec. Dig. § 21.*] 2. ENTRY, WRIT OF (§ 20*)—Proof of TITLE— DESCRIPTION OF LAND. Where in a real action plaintiff claimed title under a mortgage foreclosure, it was not material that the land described in the mortgage was not the same as that described in the writ, if the mortgaged land included that sued for and described. [Ed. Note.-For other cases, see Entry, Writ of, Cent. Dig. §§ 34-38; Dec. Dig. § 20.*] 3. ENTRY, WRIT OF (§ 21*)-EVIDENCE-PRESUMPTIONS-OCCUPATION. A grantee's occupation, in the absence of evidence to the contrary, is presumed to be under and in accordance with his deed, and coextensive with the premises therein described. [Ed. Note.-For other cases, see Entry, Writ of, Cent. Dig. §§ 39-42; Dec. Dig. § 21.*] 4. ENTRY, WRIT OF (§ 21*)—EVIDENCE-SUFFICIENCY-DESCRIPTION OF LAND. Where, in a suit to recover real property, plaintiff claimed under a warranty deed and a foreclosed mortgage, evidence held to show prima facie that the land described in the writ was included within the boundaries specified in the mortgage and deed. [Ed. Note.-For other cases, see Entry, Writ of, Cent. Dig. §§ 39-42; Dec. Dig. § 21.*] Exceptions from Supreme Judicial Court, Aroostook County, at Law. Writ of entry by Levi H. May against Docite Labbe. At the close of plaintiff's case, the court directed a verdict for defendant, and plaintiff brings exceptions. Sustained. Argued before SAVAGE, C. J., and SPEAR, CORNISH, KING, HALEY, HANSON, and PHILBROOK, JJ. James D. Maxwell, of Island Falls, for plaintiff. J. A. Laliberte, of Bangor, and A. S. Crawford, of Ft. Kent, for defendant. KING, J. This action is a writ of entry to recover a tract of land in the town of Ft. Kent, Aroostook county. The plaintiff claims to own the westerly part of that portion of lot 18 south of the St. Francis road, and the defendant owns the easterly part thereof. Their ownerships adjoin, and the real con troversy between the parties is the location of the line, extending from the St. Francis road southerly to the south line of lot 18, which marks the eastern bound of the plain tiff's land and the western bound of that of the defendant. The demanded premises are thus described in the writ: "Commencing at an iron pin driven near the center of Campbell brook at the bridge where the St. Francis road crosses said brook; thence southerly parallel with the east line of said lot 18 to the south line of said lot 18; thence westerly along the south line of lot 18 fortyeight rods to the southwest corner of lot 18: thence northerly along the west line of lot 18 to the St. Francis road; thence easterly along the line of the St. Francis road to the place of beginning." The defendant filed a disclaimer as to all the premises demanded except a strip 183.8 feet wide on the easterly side thereof, between the two lines as claimed on the one side and the other as the true line, and as to that strip he pleaded nul disseisin. The plaintiff introduced several deeds of conveyance to himself, and to others under whom he claimed, and also the testimony of two surveyors each of whom had made certain surveys and a plan of the premises, and rested his case; whereupon, on motion therefor, a verdict was directed for the defendant, and the case is before this court on exceptions to that ruling. [1] There was no evidence of actual possession of the demanded premises by the plaintiff or those under whom he claimed title. But in a real action tried upon a plea of nul disseisin a warranty deed to the plaintiff, or a warranty deed to one from whom the plaintiff has a quitclaim deed, is sufficient prima facie evidence of title in the plaintiff to authorize a verdict in his favor, unless the defendant proves a better title. Rand v. Skillin, 63 Me. 103. The plaintiff introduced, among others, two conveyances to himself containing full covenants of warranty, one a warranty deed from Susan R. Mitchell, and the other a warranty mortgage deed from Charles Wiles which had been foreclosed. But the defendant contends that there was no sufficient proof to identify the land described in the writ as the same land described in those warranty deeds to the plaintiff. In both of them the description of the land conveyed is substantially the same, and in the mortgage deed it is as follows: being my homestead on which I now live, and "The west part of lot (road) No. (18) eighteen, bounded on the northerly side by the St. John river, on the easterly side by land occupied by of said lot No. 18, and on the westerly side by Docite Labbe, on the southerly by the rear line land of John White." ries of the land as described in the mortgage It is suggested that neither of the boundais the same as the corresponding boundary of the lot as described in the writ, but we apprehend that the defendant relies chiefly on his claim that the eastern line in the mortgage description is not shown to be the same We will, however, briefly refer to each of as the eastern line in the writ description. the boundaries. that lot 18 is bounded on the north by the St. [2] 1. An examination of the plan shows John river, and that the St. Francis road crosses the lot from east to west some distance south of the river. The tract describ *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes 91 A.-59 ed in the mortgage is the west part of lot 18, extending the length of the lot from its rear on the south to the St. John river on the north, while the lot described in the writ extends only from the south line of lot 18 to the St. Francis road. If, however, the land described in the mortgage includes that described in the writ, it cannot be a material objection that it includes more than that. 2. It seems certain that the southerly line of the tract described in the writ is the same as the southerly line of the tract described in the mortgage; for the writ description bounds it on the south by "the south line of lot 18," and the mortgage description bounds it on the south by "the rear line of said lot No. 18" and that must be the south line of the lot. 3. In the writ description the tract is bounded on the west by "the west line of lot 18"; while in the mortgage description the language is "and on the westerly side by land of John White." But in the mortgage the tract described as conveyed is called "the west part" of lot 18. Where is the westerly boundary of the "west part" of lot 18? Is it not the west line of the lot? We think it should be so inferred, prima facie at least. And the fact that the mortgage description specifies the westerly boundary of the lot as land of John White is not inconsistent with the fact that it is also the west line of lot 18. The writ tract is bounded on the west by the west line of lot 18, and we think the mortgage tract is so bounded on the west, by a fair construction of its description. 4. In the writ the easterly line of the lot is described as follows: "Commencing at an iron pin driven near the center of Campbell brook at the bridge where the St. Francis road rosses said brook, thence southerly parallel with the east line of said lot 18 to the south line of said lot 18." In the mortgage the tract is bounded on the east "by land occupied by Docite Labbe." No evidence was introduced to show the western line of Labbe's occupation at the time the mortgage was given, July 31, 1896. But the plaintiff introduced Labbe's deed (a warranty deed to him dated September 28, 1881), containing the following description: "A parcel of land in Ft. Kent, being a part of lot No. 18 of the St. John river lots, and bounded as follows: Commencing at the southeast corner of lot No. 18; thence running northerly on the east line of lot No. 18 to the Campbell brook; thence in a southerly course of said brook to a post on the south side of the county road; thence southerly parallel with the east. line of said lot No. 18 to the rear line of said lot; thence easterly to the first-mentioned bound." [3] A grantee's occupation, in the absence of evidence to the contrary, is presumed to be under and in accordance with his deed, and coextensive with the premises therein described. Moulton v. Edgcomb, 52 Me. 31. In the absence of any evidence in this case showing that Labbe was in occupation of any land line is presumed to be the line of his occupation. It follows, then, that the tract described in the mortgage to the plaintiff is bounded on the east by the west line of the tract as described in Labbe's deed. Where is that line? Is it substantially the same as the east line of the lot described in the writ? Each line extends from a point at the county road, called also the St. Francis road, "southerly parallel with the east line of said lot" to the rear or south line of the lot. Do those lines commence at the same point? From a study and consideration of the deeds, the plans of the surveyors and their testimony, we think the reasonable conclusion is that they do commence at substantially the same point. The northeast corner of the land described in the Labbe deed is at the point where the east line of lot 18 crosses the Campbell brook, and the plan shows that point to be not far south of the St. John river. From that point the boundary called for in the deed, taken in connection with the deed therein referred to and introduced, is up the brook in a southerly or southwesterly course "to a post on the south side of the county road." The plan shows the location of the Campbell brook and from that it clearly appears that the brook crosses the St. Francis road only at one point. It follows, therefore, from the description in the Labbe deed, considered in connection with the plan, that the location of the post called for in the deed as on "the south side" of the county road is at the place where the road crosses the brook. The iron pin called for in the writ description is also at the place "where the St. Francis road crosses said brook." In the deed the post is designated as on the "south side" of the road, and in the writ the "pin" is described as driven "near the center" of the brook. It is true that it is not shown that the location of the pin is identical with that of the post, but, if their locations are not precisely the same, they cannot be but a few feet apart; for they are both where the road crosses the brook, and the brook is quite small. It seems perfectly clear that the northwest corner of Labbe's lot as described in his deed is at the junction of the road and brook, and from that point his west line runs southerly parallel with the east line of lot 18. It is equally clear that the northeast corner of the lot described in the writ is also at the same junction of the road and brook, and that from there its east line also runs southerly parallel with the east line of lot 18. And we think it is a proper inference, from all the evidence in the case, and in the absence of any proof to the contrary, that the west line of the Labbe lot is substantially the same as the east line of the lot described in the plaintiff's writ. [4] It is therefore the opinion of the court, after a careful examination of the deeds introduced, considered in the light of the facts surveyors, that there was at least prima | (112 Me. 202) PERRY v. AMES. (Supreme Judicial Court of Maine. Oct. 3, REFERENCE (8 99*)—REPORT-CONCLUSIONS OF The award must stand even though it is contrary to law. Portland Mfg. Co. v. Fox, 18 Me. 117; Brown v. Clay, 31 Me. 518; Mitchell v. Dockray, 63 Me. 82; Deering v. Saco, 68 Me. 322. Whether or not the referee states in his report his findings of law, and whether upon examination the court might deem them unsound, is entirely immaterial. The finality of the award upon questions of both law and fact rests, not upon whether the grounds of the decision are discoverable, and if so reWhere the parties by agreement under viewable, but upon the fact that the inderule of court submitted the case to a referee aft-pendent tribunal, from which no appeal lies er the adoption of Supreme Judicial Court Rule 48 (70 Atl. xiii), providing that no stipulation should be allowed for a review by the court of the decision of the referee on any question of law or fact submitted, the award cannot be reviewed by the court for errors of law shown by the terms of the report itself, even though the award is contrary to law, in the absence of a showing of fraud, prejudice, or mistake, which means more than mere error in judgment on the part of the referee. [Ed. Note. For other cases, see Reference, Cent. Dig. §§ 148-156; Dec. Dig. § 99.*] Exceptions from Supreme Judicial Court, Knox County, at Law. Action by Oliver G. Perry against Fred Y. Ames. To the ruling of the presiding justice accepting the report of a referee, the defendant excepts. Exceptions overruled. Argued before CORNISH, BIRD, HALEY, and HANSON, JJ. Frank H. Ingraham, of Rockland, for plaintiff. A. S. Littlefield, of Rockland, for de fendant. to the court, has determined the issues and that determination, in the absence of fraud, prejudice or mistake, must stand. The word "mistake" used in this connection does not mean an error in judgment either upon the facts or the law, but some unintentional error, as, for instance, in a mathematical computation. It is used in much the same connection as in R. S. c. 91, § 1, par. 7, authorizing the court to grant reviews. Pickering v. Cassidy, 93 Me. 139, 44 Atl. 683. It was formerly the frequent practice to refer cases under a rule of court, both parties reserving the right to except in matters of law. This practice, however, was prohibited by the rule of court adopted in 1908 (rule 45 [70 Atl. xiii]), which reads: "In references of cases by the court no stipulation will be allowed for a review by the court of the decision of the referee upon any question find the facts and report questions of law for deof law or fact submitted; but the referee may cision by the court." In the case at bar, the reference was made CORNISH, J. Exceptions by appellant to without reservation in compliance with this the ruling of the presiding justice accepting rule of court, and the referee reported no the report of the referee to whom the pend-question of law for decision by the court. ing cause had been referred by agreement of The parties were therefore bound by the the parties and under rule of court in the or-award, and the report was properly accepted. dinary form. The objection raised by the appellant to the acceptance of the report is that "the referee made an error in law in his decision holding the defendant liable," and he states the reasons for his contention, based upon the terms of the report itself. But this objection, even if true, is unavailing. In the absence of fraud, prejudice, or mistake on the part of the referee his finding is conclusive on questions both of law and fact. This rule has been reiterated in a long line of decisions from Smith v. Thorndike, 8 Me. (8 Greenl.) 119, down to Armstrong v. Munster, 103 Me. 29, 67 Atl. 573, and Stewart v. Leonard, 103 Me. 128, 68 Atl. 638. The reason for the rule is that the parties, having submitted their cause without reservation to a tribunal of their own choosing, are bound by a decision of that tribunal, and should not be permitted to afterwards return to the tribunal which they once abandoned and seek there a correction of the award on the ground that the referee has made an erroneous decision. Exceptions overruled. (112 Me. 204) SHACKFORD v. NEW ENGLAND TELE- 1. APPEAL AND ERROR (§ 927*)-REVIEW-DI- In considering exceptions to the direction of a verdict for defendant, the court is not to weigh conflicting evidence, but only to determine whether the evidence considered most favorably for the plaintiff would have warranted a verdict in his favor. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. $$ 2912, 2917, 3748, 3758, 4024; Dec. Dig. § 927.*] 2. TELEGRAPHS AND TELEPHONES (§ 15*) RIGHT TO USE OF HIGHWAY-LOCATION OF POLES. Where a permit, given pursuant to Laws 1885, c. 378, for the placing of telephone poles and wires along a highway, did not fix specifical the location of the poles, the company is bound to exercise reasonable care in selecting locations for them within the limits of the road For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes so as not unreasonably to interfere with travel, and whether it had exercised such care or not is a question for the jury. of the accident he was driving southerly on the road from White Rock to South Windham, and that at a point in the road at the [Ed. Note.-For other cases, see_Telegraphs and Telephones, Cent. Dig. 89; Dec. Dig. top of Ward's Hill in Gorham, while pass 15.*] 3. Telegraphs and Telephones (§ 20*)-Ac TIONS AGAINST COMPANIES BURDEN OF In an action for personal injuries caused by plaintiff's wagon striking a guy wire alleged to be so attached to a telephone pole of the defendant as to constitute a dangerous obstruction to travel upon a public road, the burden is upon the plaintiff to show that the guy wire was within the road limits. [Ed. Note.-For other cases, see Telegraphs and Telephones, Cent. Dig. § 13; Dec. Dig. § 20.*] 4. TELEGRAPHS AND TELEPHONES (§ 20*)-AC TIONS AGAINST COMPANIES-SUFFICIENCY OF In such action, evidence held not sufficient to warrant the jury in finding that the guy wire was within the road limits as originally established, or as broadened by prescription. [Ed. Note.-For other cases, see Telegraphs and Telephones, Cent. Dig. § 13; Dec. Dig. § 20.*] 5. TELEGRAPHS AND TELEPHONES (§ 10*) CONSTRUCTION-HIGHWAY BY PRESCRIPTION -EXTENT OF RIGHTS ACQUIRED-GUY WIRES. While a highway may be established or widened by prescription, the rights of the public therein are limited to the land used prescriptively, and a telephone guy wire two feet outside the traveled way cannot be upon a prescriptive highway. [Ed. Note.-For other cases, see_Telegraphs and Telephones, Cent. Dig. § 6; Dec. Dig. § 10.*] Exceptions from Supreme Judicial Court, Cumberland County, at Law. Action by Robert F. Shackford against the New England Telephone & Telegraph Company. From a verdict directed for the defendant, the plaintiff excepts. Exceptions overruled. Argued before SAVAGE, C. J., and CORNISH, HALEY, HANSON, and PHILBROOK, JJ. William Lyons, of Westbrook, for plaintiff. Payson & Virgin, of Portland, for defendant. SAVAGE, C. J. Action on the case to recover for personal injuries sustained by the plaintiff, July 15, 1908. The writ is dated May 20, 1913. At the conclusion of the evidence the presiding justice directed a verdict for the defendant, and the case comes before this court on the plaintiff's exceptions to that direction. ing a standing automobile, his horse became frightened and shied, so that the off forward wheel of his wagon ran against and locked into a guy wire placed there by the defendant to sustain one of its poles, whereby he was violently thrown from the wagon and injured. The guy wire was stretched from the top of the pole to the ground about six feet towards the traveled part of the road from the bottom of the pole. The plaintiff further alleges that the pole and guy wire were within the limits of the road; and he contends that the bottom of the guy wire was placed so near the wrought or traveled part of the road as to constitute a dangerous obstruction to travel upon the road. The defendant pleaded the general issue, and, further, by way of brief statement, that pursuant to the provisions of chapter 378 of the Public Laws of 1885 it had obtained, on June 1, 1895, a written permit from the selectmen of Gorham to erect and maintain poles and wires thereon upon all the streets and highways in Gorham, and that if the guy wire complained of was within the limits of the road on which the plaintiff was traveling, it was a legal structure, by virtue of the permit so obtained. The statute referred to in the plea provided that no telephone company should "construct lines upon and along the highways and public roads of any city or town, without first obtaining a written permit, signed by the mayor and aldermen, or selectmen, specifying where the posts may be located, the kind of posts, and the height at which and the places where the wires may be run." The case shows that the selectmen of Gorham issued a permit to the defendant to "erect and maintain poles and wires thereon on all streets and highways in the town of Gorham." We have no occasion now to pass upon the validity of this permit, but if we assume that it was sufficiently specific as to places where poles might be erected upon and along the roads and streets, the defendant should unquestionably be held to the exercise of reasonable care in so placing them within road limits as not unreasonably to interfere with the rights of travelers upon the road. The selectmen were vested with the power of prescribing the precise location of each pole and the necessary sustaining structure like a guy, and a pole and guy placed as so prescribed would, without any question, be a legal structure, and the defendant would not be liable for the consequences of maintaining it as prescribed. But where, as in this case, the permit was general, and the location of poles not specific, the company [2] The plaintiff alleges that on the day erecting the poles would be bound to exer [1] In considering exceptions of this kind, it is not the province of the court to weigh conflicting evidence and ascertain its comparative value, but only to determine whether the evidence, considered most favorably for the plaintiff, would have warranted a verdict in his favor. Johnson v. N. Y., N. H. & H. R. R., 111 Me. 263, 88 Atl. 988. cise reasonable care in selecting places so as not unreasonably to obstruct public travel. And in this case, assuming that the guy complained of was within the limits of the road, it was a question for the jury to say whether the defendant had exercised reasonable care and judgment in placing the guy where it was. A verdict for the defendant should not have been directed on that ground. [3] But the plaintiff's right to recover, if he may be entitled to a verdict in other respects, depends in the end upon whether the guy wire was within the road or without it. If the guy was within the road, or if upon the evidence a jury would have been warranted in so finding, then the direction of a verdict for the defendant was erroneous. In such a case the question of liability is for the jury under proper instructions. But if the guy was outside the road limits, upon private property, or if a jury would not have been warranted in finding that it was within the road limits, then, under the circumstances of this case, the plaintiff is not entitled to a verdict. If the defendant is liable at all, it is because he has interfered with the rights of the plaintiff as a traveler upon the road. This is conceded, and requires no discussion. The burden was on the plaintiff, then, to show that the guy was within the road limits. He introduced evidence, which the jury might believe that the bottom of the guy was placed within about two feet outside of the traveled or wrought part of the road. We think it cannot be said that it was within two feet of the direct line of travel up and down the road, but of the line of travel widened as it may have been at that point by the intersection of a crossroad. He also introduced evidence of other features in the situation, such as the ditch by the side of the road and so forth. Some of that evidence is disputed. the guy was placed 2.7 feet outside the road, limit and on private property. It produced at the trial the record of the original laying out of the road by metes and courses, by the selectmen of Gorham in 1820. It has surveyed and retraced, as it claims, the. lines of the original location, and its engineers testified their survey shows that the original road line was, as we have stated, 2.7 feet inside of the guy, and thus that the guy is excluded from the road. But they also testified that they depended upon the statements of men, subject to the defects of human memory, for the location of certain monuments not now in existence, that some lines had to be shortened and others lengthened to fit the supposed termini of the lines as located; that some courses had to be changed for the same reason; and that the variation of the compass seemed to be uneven, less in some places than in others. All this seems to indicate that either the original survey or the one made by the defendant's engineers is inaccurate. And it is more likely that this is true of the former. Magoon v. Davis, 84 Me. 178, 24 Atl. 809. The engineers also testified that in some places they found the wrought or traveled road outside the location on one side, and in some places on the other, which indicates that the position of the wrought road is no certain evidence of where the side lines are. But without further discussion of the defendant's survey, we will say that we do not think that even an admittedly accurate resurvey of the old line, as recorded, nearly four miles long, as this was, with the conditions and results already named, imports such an absolute verity as to the original line of the road as actually laid out, within 2.7 feet, as would justify the court in taking the question from the jury, if there were any credible evidence opposed to it. In this case there is no such evidence. The plaintiff does not admit the correctness of the defendant's survey, but he does not show wherein it is wrong in any respect. And we think that if the public right, which includes the plaintiff's right, depends upon lines as located in 1820, the plaintiff cannot maintain this action. With all its Imperfections, the evidence of the original location, unexplained, and without modification, is too certain to be disregarded by court or jury. The plaintiff offered no evidence of the original location of the road, but seems to have relied upon such inferences as to road lines as might be drawn from the location of the wrought portion of the road with respect to the guy, and from general appear-showing that the guy was within the road ances. And as to general appearances, it may be said that there is little or nothing at this point, outside of the traveled part of the road, to indicate where the road lines are. There are no fences by the roadside. There are no monuments of any kind. There are no physical aspects which help to decide the question. The adjacent field extends in appearance to the shoulder of the road ditch. Northerly of the point in question there are or have been fences on both sides of the road, but it is not shown whether their location would, or not, throw any light upon the location of the road lines at the point of the accident. [5] But the plaintiff says that the limits of the original location afford no certain criterion of the limits of the plaintiff's rights. He says, and it is true, that a highway may be proved by prescription or dedication. Commonwealth v. Old Colony & F. R. R. Co., 14 Gray (Mass.) 93. And where there is a located way, as in this case, its limits may be enlarged by prescriptive use. The public [4] The defendant contends that in fact may appropriate by use land adjoining an |