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House of Lords.

Reported by JAMES PATERSON, Esq, of the Middle Temple, Barrister-at-Law.

Friday, June 22.

LYLE v. RICHARDS.

map

Boundary-Evidence-Map incorporated in deed Parol evidence to alter or explain map-Parcel or no parcel-Falsa demonstratio-Question for judge. A grant of a mine to R. described the boundary on the south to be by a straight line of 355 fathoms "from V.'s house" to a boundstone (describing it), "which said premises are particularly delineated by the on the back of this deed." The map represented the line to be drawn from the north-east corner of V's house. In an action of trespass against R. parol evidence was given, which the jury believed, that V.'s house was wrongly placed on the map : Held, by Lords Cranworth, L.C. and Chelmsford, that the judge ought not to have left it to the jury to say from which corner of V's house in its proved altered position the line was to be drawn: for that it was a question of law for the judge alone, and he was bound to hold that wherever V.'s house was situated the boundary must be drawn from the north-east corner thereof (Lord Westbury dissenting, and holding that it was a question for the jury, and not for the judge). This was an appeal from a judgment of the Ex. Ch., reversing the judgment of the Court of Q. B.

The action was trespass brought by the resp. against the apps. The declaration charged that the defts, broke and entered a certain mine of the plt.'s called the West Basset Mine. The defts. paid into court a sum of 525/, and the plt. replied that that sum was not enough.

The plt. was lessee of the West Basset mine, and the defts. were lessees of the South Wheal Frances mine, which was south of the former mine. The question in dispute came to be what was the boundary between the two.

The plt. relied on a sett or grant made to him by Lady Basset in 1852. The defts., in answer, insisted Vol. XV., N.S., No. 356.

that the locus was not included in that sett, but in two prior setts made to themselves in 1843. In reply to that the plt. relied on an earlier sett in 1835 made by the same grantors, and which included the same parcels as the setts of 1843, but which described the boundary in such a way as to show that the plt.'s contention as to boundary was right. The ultimate question came to be what was the south boundary of the sett of 1835.

The indenture of 24th March 1835, executed by Lady Basset, described the parcels of the West Basset, then called Wheal Haste mine, as follows: that is to say, to be bounded on the north and west by the estate of Bosleake, the property of Edward William Wynn Pendarves, Esq., and the estate of Treskillard, the property of Lord Grenville; on the south by a straight line of about 355 fathoms from John Vincent's house, at the south-west extremity of the sett, to a boundstone at the north-west extremity of South Wheal Basset sett; and from thence Carnkie, to a boundstone fixed at the south-west corner of North Wheal Basset sett; and from thence due north, by the magnet about 170 fathoms, to a boundstone fixed at the south-east corner of Bos

eastward, by the north side of the road leading to

leake estate, and which said premises are particularly delineated by the map on the back of this sett, and are situate in the parish of Illogan, in the said county of Cornwall, to have, hold, &c.

Parol evidence was given to explain that John Vincent's house was wrongly placed on the said map, and that its true position was very different from what the map represented, viz., that the boundary ran from the north-east corner of John Vincent's house; and if the true site of John Vincent's house had been represented on the map, then it was contended that the boundary would no longer run from the north-east corner of such house.

The whole case was left to the jury, and they found for the plt., leave being reserved to the defts. to move to enter a verdict for themselves on the footing of a different line of boundary from that found by the jury.

The Court of Q. B. discharged the rule, and on

the court were bound to treat this as if in the description of the parcels the language had been, not a line from John Vincent's house, but a line from the north-east corner of John Vincent's house. This shows that the locus in quo was not included in the sett of 1835. But if not included in the sett of 1835 it could not be included in that of 1852, for in the setts of 1843, under which the defts. derive title, their northern boundary is clearly made to be the same as the southern boundary of the plt.'s sett established in 1835. The result is, that it is immaterial to consider what was the boundary line intended to be drawn in 1852, for even if it had been expressly designated as a line drawn from the south-east corner of the house, that would not have warranted a finding that the locus in quo was part of the plt.'s sett. Lady Bassett had already in 1843 granted to those under whom the defts. claim title a right to take all minerals south of the line adopted in 1835; i. e. south of a line from the north-eastern corner of John Vincent's house. Therefore she had no power to grant to the plt. in 1852 that which she had already granted to the defts., or to those under whom they derive title. Great reliance was placed on the fact that the map, on which so much depends, was shown to be very inaccurate. John Vincent's house is placed on the map from forty to sixty fathoms more to the west, and considerably more to the south, than its true position would warrant; so, again, the boundstone appears by the map to be on the hedge or bank running along the south side of the road to Carnkie, whereas it is in fact in the middle of that road. These inaccuracies,, however, appear to me to be unimportant. The map is referred to not for the purpose of showing the site, either of the house or the boundstone. The facts as to the true position of the house and the boundstone are ascertained by other means. The use of the map is to clear up what without it was uncertain; namely, from what part of the house the line was to be drawn, and for that purpose the exact site is immaterial. The map is undoubtedly drawn on a very small scale, and if from that circumstance, or from any other cause, it could be considered doubtful to what part of the house the line was drawn, the view I have taken might have been different. But the plan, though on a small scale, clearly indicates that wherever John Vincent's house was situate, the boundary line was to be drawn from its north-eastern corner. Translating (so to say) the map into words, it is as if the description had been, "the boundary to the south is a line drawn from the north-east corner of John Vincent's house, which is situated sixty fathoms to the west of the southernmost point of the road," whereas, in fact, the house is situate within five fathoms of this point. This inaccuracy would not, as I think, have been material. The boundary line would still be a line drawn from the north-east extremity of the house wherever situate, assuming, of course, that the jury were satisfied that the house really existing is that which was referred to in the deed. The circumstance that its locality was erroneously described would not affect the description of the boundary line, namely, that it was to be a line drawn from the north-east corner. When once the jury was satisfied that the house known as John Vincent's house is that referred to in the deed, the error in the description of its locality is no more material than if it had been an error in describing it as brick-built instead of stonebuilt, or as a house of three stories instead of two. No error is material which would not prevent the jury from being satisfied that the existing house is the house referred to in the deed. I have treated it as clear (as did the Ex. Ch.) that the boundary line

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and that the existing house, called John Vincent's house, is that referred to in the sett of 1835. Strictly these are both questions for the jury. It was for them to say, looking at the map, to what part of the spot there designated John Vincent's house the boundary line was drawn. But it is so plainly drawn to the north-east corner that this has always been assumed as a fact that is, it has been assumed that if this precise point had been put to them they must and would have so found. So, again, it was the duty of the judge to ask the jury whether they were satisfied that the existing house, called John Vincent's house, is the house intended to be described on the map. In deciding this the jury would have to consider, on the one hand, the fact that there is no other house known by that name; and, on the other hand, the erroneous position of the house on the plan. Mere error of position on the plan cannot of itself be decisive. If the house itself had been five miles off the jury would, of course, have come to the conclusion that such a house could not have been what was meant to be designated. If, on the other hand, the house drawn on the plan was only one yard out of its proper place the jury would disregard such an inaccuracyin fact, it is misplaced by about 100 or 150 yards to the west, and by 10 or 20 to the south. It was for the jury in these circumstances to say whether the actual house was or was not that intended in the sett and map of 1835 as forming one terminus of the boundary. Assuming, as we must assume, the jury to have been satisfied that in spite of the error in its position on the map the house as it exists on the land is the house intended, and that the line on the plan is drawn to the north-east corner of the house, it was the duty of the judge to tell them, as matter of law, that the boundary line is the line drawn from the north-east corner of the actual house to the boundstone. The Court of Ex. Ch. has assumed, and I think very reasonably assumed, that on these two questions of fact the jury must be considered to have found, first, that the line on the plan is drawn to the northeast corner of what is there called John Vincent's house; and, secondly, that the actual house, called John Vincent's house is that referred to in the map and description under the name of John Vincent's house. Assuming this to be so, it follows as matter of law (having regard also to the two setts of 1843) that the locus in quo could not form part of the sett of of 1852. On these grounds I have come to the conclusion that the judgment of the Ex. Ch. was right, and so that the judgment of your Lordships ought to be for the resps. and that the appeal ought to be dismissed with costs.

on

Lord CHELMSFORD.-My Lords, the action upon which the judgment appealed from was pronounced was brought by the plt., the app., for a trespass by the defts. upon his mine, called West Basset Mine, and taking away copper and other ore, and the sole question to be tried was whether the locus in quo was part of the plt.'s mine. The plt. claimed under a lease from Lady Basset dated Feb. 28, 1852, in which the mine was described to be bounded the south" (the only part of the description of the boundaries necessary to be noticed) "by a straight line of 355 fms. from John Vincent's house at the south-west extremity of the sett, to a boundstone at the north-west extremity of South Wheal Basset sett." At the trial in Cornwall the plt., after putting in the lease of Feb. 28, 1851, called witnesses to prove that the line from John Vincent's house mentioned in the lease ought to be taken from the south side or from about the centre of that house. In the course of the evidence he produced a former lease of the same mine, dated March

similar to it in all respects, except that it contained a reference to a map in these words, "which said premises are particularly delineated by the map on the back of this sett." In this map the line described as the boundary on the south clearly appears to be drawn from the north-east corner of John Vincent's house to the boundary stone. Evidence was given on both sides to show that the situation of John Vincent's house was incorrectly described upon this map. Both sets of witnesses agreed that it was placed upon the line too far to the west, but they differed as to the extent of the error in this respect. The app. by the evidence showed that Vincent's house was placed on the map too far to the south, while in the evidence for the resps. it was stated that if Vincent's house were plotted in on the plan in the Wheal Haste sett in its right place, the whole of the house would be to the south of the boundary line there shown. The resps. put in evidence two leases from Lady Basset, both dated May 17, 1843, under which they held, one of which being a lease of the estate of Grylls in the description of the boundaries included in the locus in quo. The whole case was left to the jury, and they found by their verdict that the southern boundary of the plt.'s mine should be a line drawn from the south-east corner of John Vincent's house to a boundstone at the north-west extremity of South Wheal Basset sett. The defts. in the following term obtained in the Q. B. a rule to show cause why the verdict should not be set aside, and a verdict entered for the defts. instead thereof, or why there should not be a new trial, on the ground that the verdict was against the evidence. Upon this rule being called on for argument it was ordered to stand over till after the decision of a case of Reynolds v. Buckley and others, which was an action of trespass between other parties interested in the same mines, in which an appeal to the Court of Ex. Ch. was pending. There is no statement in the printed case before the House of the particulars of this case of Reynolds v. Buckley and others, nor any explanation given of the way in which it was supposed that the decision in that case would influence the judgment of the Court of Q. B. But all that we are informed about it is that after the decision of that case in the Ex. Ch., the Court of Q. B. ordered that "so much of the rule as sought to enter a verdict for the defts., or reduce the damages, should be discharged, and that so much of the rule as prayed for a new trial should be suspended until the decision of the Court of Ex. Ch. on this appeal, and that, in the event of this court not entering the verdict for the deft., the verdict obtained in the cause should be set aside, and a new trial had between the parties upon payment of costs." Notice of appeal was given by the present resps., and pursuant to the provisions of the C. L. P. A. 1854, a case was stated between the parties, and the question for the opinion of the Ex. Ch. was whether the judgment of the Court of Q. B., in discharging so much of that rule as was discharged, ought to be affirmed or reversed, or, in other words, whether the verdict given for the plt. ought not to be set aside, and a verdict entered for the defts. This question depends entirely upon what should have been the direction of the judge to the jury upon the trial, whether he should not have told them that the southern boundary of the mine was a line drawn from the north-east corner of John Vincent's house, instead of leaving it to them to say from what part of the house that line ought to be drawn. I have had great difficulty in making up my mind whether upon the whole evidence the proper line of the southern boundary was matter of fact for the jury, or was a question for the judge upon the documents produced. After careful consideration of the whole case, and having had the advantage of reading the opinion of my noble and

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learned friend on the woolsack, I agree in the conclusion at which he has arrived. The question to be decided was, what was the boundary intended to be described in the lease to the plt. of 1852. Erle, C. J., in delivering judgment in the Ex. Ch., said that "If the case stood upon that lease, it was very likely the plts. would be entitled to succeed." I shall have occasion presently to consider whether, looking at the question as one of judicial construction of this deed alone, the description of the boundary which it contains is not adverse to the plt.'s claim, but the lease of 1835, with the map annexed, was put in evidence by the plt., and the description of the boundaries corresponding exactly with those in the lease of 1852, the line of the southern boundary is marked on the map as proceeding from the north-east corner of John Vincent's house. If nothing more had been done than merely putting in this lease, as explanatory of the boundaries in the lease of 1852, the question would have been one entirely for the judge. But the plt. who had produced a lease and map, which on the face of them would have been destructive to his case, gaveevidence to show that the map was inaccurate as to the position of John Vincent's house, and thereupon contended that this raised a latent ambiguity, and opened the question as to the part of the house from which the boundary line was to be drawn. It is inaccurate to call this mistake in the map the disclosure of an ambiguity. It is merely the proof of incorrectness in a certain particular in respect of which it appears that the map is no longer to be relied upon. The only inaccuracy which was proved to exist in the map was in the position of John Vincent's house, which is placed more to the west and to the south than it ought to have been, but whatever was its right position there was nothing in the evidence to disturb the fact of the line being drawn from the north-east corner of the house, or to remove it from the face of the map as part of the deed, where it was within the sole province of the judge as a matter of construction. And upon considering closely the description of the boundaries in the lease of 1852, it appears to me materially to aid this construction. For when it is said that the mine is bounded on the south by a line from John Vincent's house, "at the south-west extremity of the sett," the proper construction of the words would seem to be a line from that part of the house which is nearest to the south-west extremity, which must be to the north side. Assuming, therefore, all the facts proved at the trial, the question turned upon the description of the boundaries in the leasesof 1835 and 1852, and the judge ought to have directed the jury that, whatever was the exact situation of John Vincent's house, the proper southern boundary line was from the north-east corner of the house. The Court of Ex. Ch. has properly dealt with the case as one of judicial construction of written documents, and I agree with my noble and learned friend on the woolsack that their judgment ought to be affirmed.

Lord WESTBURY.--My Lords, I am sorry to be obliged to differ from your Lordships. To render my opinion intelligible, it is necessary to state concisely the manner in which the question has arisen. The plt. claimed the minerals in question under a sett or grant made in 1852. The defts. insisted that the minerals were not included in the parcels of that sett, but were included, and in effect passed to the defts. under two prior setts made by the same grantor in the year 1843, which had not expired. These two setts were put in by the defts. Anticipating this defence, the plt. put in evidence at the trial an earlier sett made by the same grantor in the year 1835, and which was in force at the date of the setts of 1843, for the purpose of proving that the

minerals in question were included in the parcels of the sett of 1835, and did not, therefore, pass by the setts of 1843, nor were included in the parcels of those two setts. The parcels in the sett of 1835 were substantially the same as the parcels in the sett of 1852, with the exception of a map, which is indorsed on the sett of 1835, and referred to in the description of the parcels. The sett of 1835 was material on another ground, because in the parcels and plan of the setts of 1843 the southern boundary line in the sett of 1835 is referred to as forming the northern boundary line of the setts of 1843. The question, therefore, in effect came to be, what was the south boundary line described in the sett of 1835? When the sett of 1835 had been put in by the plt. the defts. fastened upon it, and insisted that it appeared on the map indorsed on the set of 1835 (which being referred to in the parcels became part thereof) that the southern boundary of the sett thereby granted was formed by a line drawn from the north-east corner of a house (the site of which is laid down on the map, and called John Vincent's house) to a certain boundstone therein described. We accept, said the defts., the line from the northeast corner of John Vincent's house as our northern boundary, and it gives us the minerals in question. To this the plt. answered, that the fact of the boundary line appearing on the map to run from the north-east corner of John Vincent's house is an accident resulting from the circumstance of the site of John Vincent's house being inaccurately laid down in that map, and he adduced evidence to correct the map, by proving the true position of John Vincent's house, which, if substituted for the erroneous site in the map, would no longer leave the line to the boundstone running from the north-east corner of the house. This evidence was received, subject to any question of law, and the jury found in favour of the plt., and that the southern boundary of the plt.'s sett was a line drawn from the south-east corner of John Vincent's house (that is, according to its true site) to the boundary stone. Before the court in banco the defts, insisted that parol evidence was not admissible to prove and correct the error in the map, or at all events not to alter or affect the position of the boundary line, which whatever might be the true site of John Vincent's house must, as the defts. contend, be drawn from the north-east corner of it. It is admitted that the map must be treated as incorporated into and forming part of the parcels in the sett of 1835. In my opinion the evidence was clearly admissible. Upon a question of parcel or no parcel parol evidence is always received. The error here is latent, not being discovered until it is shown by extrinsic evidence what was the true site of the house incorrectly laid down in the map, and in a question of the extent or correctness of the parcels in a deed (which are a description of external objects) parol evidence, for the purpose of ascertaining the thing so described or referred to, is admissible. But then the defts. contend that, although evidence may be received for the purpose of correcting the error as to the site of John Vincent's house, and proving its true position, yet that it leaves untouched the position in the map of the boundary line, which they contend is equivalent to a statement in words that the line is to be drawn from the north-east corner of John Vincent's house, whatever may be its true site. This, they contend, is the material and important statement, and that the incorrect setting forth of the site of the house is immaterial, being merely falsa demonstratio. But in this argument there is a false assumption. There is no express statement in

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map, meeting the north-east corner of John Vincent's house, because that house is incorrectly laid down in the map. But so soon as it is admitted, or proved, that the site of the house is erroneously laid down, the relative position on the map of the house and boundary line is disturbed, and it becomes impossible to know from the map or the parcels (as written) whether the boundary line does or does not hit the north-east corner of Vincent's house, according to its true locality. Whether it does or does not do so becomes a further question of fact, to be ascertained by evidence, and not by construction; and therefore for the jury, and not for the court. A map is a picture or representation of external objects with their relative position, and if of two adjoining objects one is laid down incorrectly, the whole of the relative description of the two is incorrect. Suppose in a map of the two adjoining counties of Surrey and Sussex that Sussex is laid down erroneously, and in the map the eastern boundary of Surrey is made to run northwards from the extreme south-eastern boundary of Sussex, and the position of Sussex is then rectified, would it not be absurd to suppose that the alleged eastern boundary of Surrey must remain? The map here is not a statement that the southern boundary line is to run from the north-east corner of Vincent's house in its actual true position, but from the north-east corner of that false site, which is erroneously laid down. There is no independent statement of the connection of the boundary line with the house, but only with the site falsely attributed to the house. In short, the relative position of the boundary line and the house is part of the incorrect description of the site of the house, and the consequence of that error. As soon as the position on a map of one object is proved to be wrong, the whole of the representation of the relative positions of adjoining objects becomes erroneous, and the map must in this respect be redrawn according to the facts, which must be ascertained from evidence. It is no doubt true that the construction of written instruments is matter of law, and that when an instrument is laid before the jury they are bound to receive the interpretation of the effect of that instrument from the judge. But the question here is not of the interpretation of the deed itself, nor even of the construction of the description of the parcels, but of the inference to be derived from a map as to the relative position of two objects laid down as adjoining each other, where one is proved to be erroneously laid down. As soon as that proof was admitted it became obvious that the true position in nature of the thing erroneously laid down, and the true relative position of the adjoining object, must both be ascertained by external evidence. If I rightly understand the judgment of the court below, and the opinions of my noble and learned friends, it is assumed that the map amounts to a statement that the boundary line is to run from the north-east corner of John Vincent's house, wherever that house may be. But with great submission there is no such statement. The map only states that the line runs from the northeast corner of the house, as there laid down. In any mode of regarding the case, even that adopted by my noble and learned friends, it appears to me that the whole question was one of fact, and not of law, and was for the jury and not for the court; and therefore, that the rule, so far as it was sent from the Q. B. to the Ex. Ch., ought to have been discharged.

Judgment affirmed with costs.

Apps.' attorney, J. Finch.