
    David Heaton & al. vs. Thomas Hodges.
    Where by the terms of the grant of a tract of land, a line commences at a known monument, and from thence runs in a certain course a specified distance to another monument, but which latter monument was never erected, or cannot be found, the grant is limited to the distance specified, to be ascertained by admeasurement.
    Where a grant of land is made with reference to a plan, the survey actually ' made at the time, if it can be ascertained, is to govern; but if no survey was made, or if it cannot be ascertained, and no natural monuments marked on the plan upon the line exist; the extent of the line is to be settled by the length of line given on the plan, according to its scale, exactly measured.
    And this rule applies, although it should be found, by measuring from one monument to another, given on a different part of the plan, that large measure was made on that part.
    This was a writ of entry on the seisin of the demandants. They derived their title to the lot in question, being 95 containing 110 acres, from Knapp and associates to whom the Commonwealth of Massachusetts granted the territory, now embraced within the limits of Brewer &f Orrington, on the 29th of June, 1785, the deed being recorded May 2,1798. The tenant claimed title under the grant of the Provincial Legislature of Massachusetts, of six Townships on the east side of Penobscot river, made on the 2d of March, 1762, of which Bucksport was one, and it was admitted that the tenant had title to lot No. 196, from the proprietors of said township. The resolves of the Legislature of Massachusetts passed March 17,1785, and July 8, 1786, confirmed the grant of 1762. Said lots are laid down on the allotments of said towns respectively, and partly cover each other, and the only question between the parties is, where the northerly corner of Bucksport is located in said grant of 1762. The parties agree that the line between said grants on Penobscot river commences at where a hemlock tree stood and runs north 70° east. The grant to the proprietors of Bucksport gives the length of the line 5 miles and 184 rods to a stone monument, but no such monument can be found. It appears from marked trees -on said line, that it was run so long ago as forty-four years. The tenant claims, as the comer of Bucksport, a beach tree, now fallen down which stood on the true course of said line, and about 178 rods greater measure, than that mentioned in the grant. There was evideuce that tbe beech tree was known and claimed as a comer by the proprietors of Buckspori, as early as the year 1801, when the lots on the back line of that town were run out, when the tree was alive, but the surveyor, Greeley, could not recollect the age of the marks upon it at that time. The demandants also proved that the south-westerly line of Brewer was run out as early as 48 or 49 years ago, and that a birch slump on said line, where it is intersected by the line aforesaid, leading from the hemlock on Penobscot river to the beech tree, claimed by tlie tenant as the corner of Buckspori, was marked 5 miles 184 rods ; and according to the survey made by Addison Bodge, appointed by the Court in this case, this birch stump was five miles 198 rods and 20 links from the hemlock tree on Penobscot river. .From the south to north line of Brewer, was 6 miles 22 rods and 20 links. If the birch stump, or a point nearer Penobscot river, is the true comer of Buckspori, the demandants maintained their action; but if the beeclx tree is the true comer, then the tenant maintained his defence. The tenant introduced the testimony of the surveyor to show, that he had measured the plan returned by the original surveyors, which was adopted by the Provincial Legislature, and wbicli was to be referred to in the case, in two or three instances, where the distance was marked on tbe plan, and measured the distance upon the face of the earth; and also several instances where he measured the plan and compared the actual admeasurement from the same points on the earth, and found that the surveyors had allowed an excess of ten or twelve per cent.; the defendant also proved by the testimony of Philip Greeley, that be had been acquainted with surveys made 40 or 50 years ago, and had uniformly found an excess as great as ten per cent. The counsel for the tenant contended that inasmuch, as it appeared, that at the time this survey was made, an excess of ten or twelve per cent, had been allowed by tlie surveyors in other parts of the lines of said township, and generally in the survey of the six townships, to preserve consistency in the said survey, the juiy ought to allow the same excess on tlie line from tlie hemlock on Penobscot river to the beech tree claimed as the corner of Buckspori by tbe tenant; and he requested the Court so to instruct the jury. There was no scale on the plan of the six townships, referred to in the original grant of the township, now Buckspori, and the five other towns. The demandants had proved that the lines running from the birch stump were the more ancient. Weston C. J., at the trial, instructed tire jury that the original survey, if it could be ascertained, would govern the location; and that, if that could not be shewn, the distances on the plan, if made by a scale, should be taken; but if there were no scale on the plan, and the original location could not be proved, the termination of the line from the hemlock was to be fixed by measuring the distance given in the grant, exactly on the face of the earth. The jury returned their verdict for the demandants. If they were not properly instructed, the verdict was to be set aside, and a new trial granted.
    When the case came on for argument, the plan was produced, and it was discovered, that there was a scale upon it, and that it was protracted upon a scale of 160 rods to an inch; and that the length of the line in dispute, as laid down on the plan, was precisely eleven inches.
    The case was briefly argued by Mellen and Abbott, for the tenant ; who contended, that the only correct and legitimate mode of proceeding in ascertainiiig the termination of the line .extending from the river, as the stone monument could not be found, was to take the ratio of large measure, proved to have been made by the actual measurement of portions of the plan, where monuments could be found, and apply that ratio to all the lines, where existing monuments did not forbid.
    And by J. McGaw and F. H. Allen, for the demandants;
    who contended, that they were entitled to recover, either on the ground, that the line of the defendant extended only to the birch; or by ascertaining the distance by applying the scale on tire plan, 160 rods to an inch, which would give a shorter line still, five miles and 160 rods.
    
      Mellen, afterwards submitted a written argument, which is sufficiently noticed in the opinion of the Court.
   After a continuance for advisement, the opinion of the Court was drawn up by

Weston C. J.

The title of both parties originates from the same source. But the tenant deduces his from an elder grant; and he has a right therefore to have his lot located according to that grant, whether it does or does not conflict with the title of the demandants. The starting point at Penobscot river, from which the line in controversy is to he run, and the course of that line are known and agreed. By the grant, under which the tenant claims, that line was to be five miles and one hundred and eiglity-four rods in length, and to terminate at a stone monument. That monument, or the place where it stood, cannot now be ascertained. If the terminating point is not to be located more than five miles, one hundred and ninety-eight rods and twenty links from Penobscot river, the demandants have prevailed in their action.

The grant before stated, was made or confirmed with reference to a plan. It was understood on both sides at the trial, that there was not to be found on that plan, any scale, by which it was delineated. It has since been discovered, by a more thorough examination, that it was protracted upon a scale of one hundred and sixty rods to an inch. And it appears, that the length of the lino in dispute, as there laid down, is exactly eleven inches. This is equal only to five miles and an hundred and sixty rods. Whether upon this state of facts, the length of line, as deduced from the plan, or that which is actually given in the grant, is to govern, we are under no necessity of determining. If the tenant is to be restricted to either, upon exact measure, he fails in his title.

But it is contended, that from ike plan, and other facts proved at the trial, such large measure should he accorded to him, as would give him the demanded premises. And there is reason to believe, from those facts, as well as from the known and acknowledged liberality of admeasurement in the surveys of that period, that such would be the result, applying to this line the same ratio of extension and enlargement. And if this were a question now for the first time presented, not having been before settled by tlie decisions and practice of our Courts, the argument, submitted by the senior counsel for the tenant, would be entitled to great weight and consideration. But a different rule having heretofore been adopted, we feel constrained to regard it as no longer an open question.

It is of the highest importance, that settled rules of law, affecting the title to real estates, should be adhered to and preserved. The true location of lots of laud, made with reference to plans, as ancieut as that under consideration, delineating lines, some of which had been made from actual survey, and others platted without being surveyed, has frequently been before the Supreme Judicial Court, both before and since our separation. We have understood the rule applied in. such cases has been, that the survey actually made, if it can be ascertained, is to govern' the location. But if that could not be shown, or if none was made, and the lines were not drawn with reference to natural monuments, they were to be settled by the length of line given on the plan, according to its scale, exactly measured. It may have been deemed, that a departure from this rule, would be productive of too much uncertainty, from the want of unifonnity in the excess of admeasurement allowed by different surveyors, as well as in that, which may have been made by tire same surveyor.

We have been referred to no adjudged case in the reports, presenting this question, prior to the separation. A decision, however, was made upon it by the whole Court, in Bowman v. White, in 1801, prior to the commencement of the Massachusetts Reports, which is’ noticed in Loring v. Norton, 8 Greenl. 61. Since the separation, the case of the Proprietors of the Kennebec Purchase v. Tiffany, 1 Greenl. 219, may be regarded as being directly in point. The tenant’s title there, depended upon Winslow’s plan, made in 1761. Winslow surveyed and fronted the lots on Kennebec river, there marking the corners of each ; and upon this base, he platted on his plan three tiers or ranges of lots, west of the river, each represented, by the scale on the plan, as one mile in length, and fifty rods in width; but he did not actually run any lines, or make any corners, except at the river. The space between the comers of each lot at the liver, was generally found to be fifty-four rods, instead of fifty.

It thus appeared, that the excess of admeasurement made by Winslow, was about eight per cent. Accordingly when Dr. Mc-Kecknie was employed by the proprietors, seven years afterwards, to survey a tract further west, but adjoining that laid down on Winslow’s plan, in order to ascertain the westerly line of Winslow’s lots, he measured three miles and seventy-two rods, instead of three miles, allowing about the same excess, which Winslow did in his survey on the river. We are not aware, that a single argument has been urged, in favor of liberal admeasurement, in the case before us, which did not apply with equal force in that case. Winslow’s rod was proved to be longer by four parts in fifty, than the exact rod. His rod was necessarily applied, in ascertaining the width of each lot, and why was it not adopted also in ascertaining its length 2 McKecIcnie, an experienced surveyor of that day, so applied it. But the Court overruled this practical, but subsequent location, made in that early day, by a surveyor of the proprietors, and applied the exact rod to Winslow’s scale, in determining how far his lots should extend westerly from the river.

The late Chief Justice of this Court, who had been many years in extensive practice, prior to our separation, sustains his opinion in that case, by a reference to the application of the same rule to a tract of land, on the eastern side of the river. The result was, that on both sides, upon the principle of exact measurement, the proprietors succeeded in establishing their claim to a strip of land -between tracts, before supposed by their surveyors and themselves, to have been contiguous. A stronger case for the application of the rule now contended for, cannot well be imagined. And yet we doubt not both those decisions were in accordance with what had been previously settled and decided in Massachusetts. Loring v. Norton, where the opinion of the Court was delivered by Judge Parris, was decided upon the same principles.

In tlio case under consideration, neither the length of line given in file grant, or deduced from the plan, exactly measured, will give the tenant any part of the land defended; and in our judgment no other rule, than that of exact measurement, can be legally applied.

Judgment on the verdict,  