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CHAPTER XI.

CONFUSION OF BOUNDARIES.

609. HAVING disposed of the subject of Administrations and Legacies, we shall next proceed to the consideration of another head of concurrent jurisdiction, arising from the confusion of the boundaries of land, and the confusion or entanglement of other rights and claims of an analogous nature, calling for the interposition of Courts of Equity in order to restore and ascertain and fix them.

610. In the first place in regard to CONFUSION OF BOUNDARIES. The issuing of commissions to ascertain boundaries is certainly a very ancient branch of equity jurisdiction.1 A number of cases of this sort will be found in the earliest of the Chancery Reports. Thus in Mullineux v. Mullineux, in 14th Jac. 1, a commission was awarded, to set out lands, that lye promiscuously, to be liable for the payment of debts.' In Peckering v. Kimpton, 5 Car. 1,2 a commission was awarded, to set out copyhold lands free from land, which lye obscured; if the commissioners cannot sever it, then to set out so much in lieu thereof.'

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611. It is not very easy to ascertain with exactness the origin of this jurisdiction. It has been supposed by Lord Northington and Lord Thurlow that consent was the ground upon which it was originally exercised. There are two writs in the Register concerning the adjustment of controverted boundaries, from one of which (in the opinion of Sir William Grant) it is probable that the exercise of this jurisdiction in the Court of Chancery

1 Jeremy on Eq. Jurisd. B. 3, ch. 1, § 3, n. 1, pp. 301, 302.

2 Tothill, R. 39 (edit. 1649). See also Wake v. Conyers, 1 Eden, R. 337, See Co. Litt. 169 a; Hargrave's note 23, vii.

note.

8 Ibid.

4 Speer v. Crawter, 2 Meriv. 417.

took its commencement.1 The one is the writ De Rationabilibus divisis, which properly lies where two men have lands in divers towns or hamlets, so that one is seised of the land in one town or hamlet, and the other of the land in the other town or hamlet by himself; and they do not know the boundaries of the towns or hamlets whereby to ascertain which is the land of one and which is the land of the other. In such a case, to set the bounds certain, this writ lies for the one against the other. The other writ is De Perambulatione facienda. This writ is sued out with the assent of both parties, where they are in doubt of the bounds of their lordships or manors, or of their towns. And And upon such assent the writ issues to the sheriff to make the perambulation and to set out the bounds and limits between them in certainty.3 And it is added in Fitzherbert (in which he follows the rule of the Registrum Brevium) that the perambulation may be made for divers towns and in divers counties; and the parties ought to come into the chancery, and there acknowledge and grant that a perambulation be made betwixt them; and the acknowledgment shall be enrolled in the chancery; and thereupon a commission or writ shall issue forth.4

612. Sir William Grant further supposes that the jurisdiction having thus originated in consent, the next step would probably be to grant the commission on the application of one party who showed an equitable ground for obtaining it; such as that a tenant or copyholder had destroyed, or not preserved, the boundaries between his own property and that of his lessor or lord. (a) And to its exercise on such an equitable ground no objection has ever been made ; and, it may be added, no just objection can be made.

613. This account of the origin of the chancery jurisdiction seems highly probable in itself; but however satisfactory it may seem, it can scarcely be said to afford more than a reasonable conjecture, and is not a conclusive proof that such was the actual

1 Ibid.; Regist. Brevium, 157 b.
2 Fitzherb. Nat. Brev. 300 [128].

8 Fitzherb. Nat. Brev. 309 [133].

4 Ibid.; Regis. Brev. 157, and Regula. ibid.

Speer v. Crawter, 2 Meriv. 417.

(a) It is then a case of trust. Attorney-Gen. v. Stephens, 6 DeG. M. & G. 111, 132; infra, § 620, and note (a).

origin. In truth the recent discoveries made of the actual exercise of chancery jurisdiction in early times, as disclosed in the Report of the Parliamentary Commissioners, already referred to in a former part of these Commentaries, are sufficient to teach us to rely with a subdued confidence upon all such conjectural sources of jurisdiction. It is very certain that in some cases the Court of Chancery has granted commissions or directed issues on no other apparent ground than that the boundaries of manors were in controversy.2 And Lord Northington seems to have assigned a different origin to the jurisdiction from that already suggested upon one important occasion at least; namely, that parties originally came into the court for relief in cases of confusion of boundaries under the equity of preventing multiplicity of suits.3

614. The civil law was far more provident than ours upon the subject of boundaries. It considered that there was a tacit agreement or duty between adjacent proprietors to keep up and preserve the boundaries between their respective estates; and it enabled all persons having an interest, to bring a suit to have the boundaries between them settled; and this, whether they were tenants for years, usufructuaries, mortgagees, or other proprietors. The action was called 'actio finium regundorum'; and if the possession was also in dispute, that might be ascertained and fixed in the same suit, and indeed was incident to it. Perhaps it might not have been originally unfit for Courts of Equity to have entertained the same general jurisdiction in cases of confusion of boundaries, upon the ground of enforcing a specific performance of the implied engagement or duty of the civil law. Such a broad origin or exercise of the jurisdiction has however never been claimed or exercised.

615. But whatever may have been the origin of this branch of jurisdiction, it is one which has been watched with a good deal of jealousy by Courts of Equity of late years; and there seems no inclination to favor it, unless special grounds are laid to sus

1 Ante, § 47, 48, and notes, ibid.

2 Ibid. See Lethulier v. Castlemain, 1 Dick. R. 46; s. c. 2 Eq. Abridg. 161; Sel. Cas. Ch. 60; Metcalfe v. Beckwith, 2 P. Will. 376.

8 Wake v. Conyers, 1 Eden, R. 334; s. c. 1 Cox, R. 360.

* See 1 Domat, B. 2, tit. 6, §§ 1, 2, pp. 308, 309; Co. Litt. 169 a, Hargrave's note 23; Dig. Lib. 10, tit. 1, 1. 1, per tot.

tain it. The general rule now adopted is, not to entertain jurisdiction, in cases of confusion of boundaries, upon the ground that the boundaries are in controversy,1 (a) but to require that there should be some equity superinduced by the act of the parties; (b) such as some particular circumstances of fraud; or some confusion, where one person has ploughed too near another; or some gross negligence, omission, or misconduct on the part of persons whose special duty it is to preserve or perpetuate the boundaries.2 (c)

616. Where there is an ordinary legal remedy there is certainly no ground for the interference of Courts of Equity, unless some peculiar equity supervenes which a Court of Common Law cannot take notice of or protect. It has been said by Lord Northington that where there is no legal remedy it does not therefore follow that there must be an equitable remedy, unless there is also an equitable right. Where there is a legal right, there must be a legal remedy; and if there is no legal right, in many cases there can be no equitable one. On this account he dismissed a bill to settle the boundaries between manors, it appearing that there was no dispute as to the right of soil and freehold on both sides the boundary marks (which right was admitted by the bill to be in the defendant), and that the right of seigniory alone (an incorporeal hereditament), and not that of the soil, was in dispute. And his Lordship on this occasion remarked that all the cases

1 But see Lethulier v. Castlemain, 1 Dick. R. 46; s. c. 2 Eq. Abridg. 161; Sel. Cas. in Ch. 60.

2 Wake v. Conyers, 1 Eden, R. 331; s. c. 1 Cox, R. 360. See Miller v. Warmington, 1 Jac. & Walk. 473; Eden on Injunctions, ch. 16, pp. 361, 362. 8 Ibid.

(a) Kilgannon v. Jenkinson, 51 Mich. 241; Haskell v. Allen, 23 Maine, 448; Stuart v. Coalter, 4 Rand. 74; Hale v. Darter, 5 Humph. 79; Topp v. Williams, 7 Humph. 569; Wetherbee v. Dunn, 36 Cal. 249; Norris's Appeal, 64 Penn. St. 275; Tillmes v. Marsh, 67 Penn. St. 507; O'Hara v. Strange, 11 Ir. Eq. 262; Ireland v. Wilson, 1 Ir. Ch. 623; Dickerson v. Stoll, 4 Halst. Ch. 294; DeVeney v. Gallagher, 5 C. E. Green, 33, 34.

(b) Stuart v. Coalter, supra; Norris's Appeal, supra; Tillmes v. Marsh,

supra; Beatty v. Dixon, 56 Cal. 619; Wetherbee v. Dunn, 36 Cal. 249; DeVeney v. Gallagher, 5 C. E. Green, 33. Equity may perhaps enforce an oral agreement to fix a boundary. Jamison v. Petit, 6 Bush, 669; sed qu. The necessity of discovery to ascertain and fix boundaries will give equity jurisdiction. Brown v. Wales, 42 L. J. Ch. 45.

(c) O'Hara v. Strange, 11 Ir. Eq. 262; Speer v. Crawter, 2 Meriv. 410; Attorney-Gen. v. Stephens, 6 DeG. M. & G. 111, 133.

where the court has entertained bills for establishing boundaries have been where the soil itself was in question, or where there might have been a multiplicity of suits.' 1

617. So in a case where a bill was brought by one parish against another to ascertain the boundaries of the two parishes in making their rates, and a number of houses had been built upon land formerly waste, and it was doubtful to which parish. each part of the waste belonged, Lord Thurlow refused to interfere, and observed that the greatest inconvenience might arise from doing so. For if a commission were granted, and the bounds set out by commissioners, any other parties, on a different ground of dispute, might equally claim another commission. These other commissioners might make a different return; and so, in place of settling differences, endless confusion would be created.2 In another report of the same case he is reported to have said if he should entertain the bill, and direct an issue in such a case as that, he did not see what case would be peculiar to the Courts of Law; and he did not know how to extract a rule from the Mayor of York v. Pilkington (1 Atk. R. 282).3 Where there was a common right to be tried, such a proceeding was to be understood. The boundary between the two jurisdictions was apparent. That is the case where the tenants of a manor claim a right of common by custom, because the right of all the tenants of the manor is tried by trying the right of one. But in the case before him he saw no common right which the parishioners had in the boundaries of the parish. It would be to try the boundaries of all the parishes in the kingdom on account of the poor-laws. The ground of dismissing the bill seems, from these 1 Ibid.

2 St. Luke's v. Leonard's Parish, or Waring v. Hotham, cited by Ch. Baron McDonald, in Atkins v. Hatton, 2 Anstr. R. 395; s. c. 2 Dick. 550.

8 Waring v. Hotham, 1 Bro. Ch. R. 40, and Mr. Belt's note (2). The case of the Mayor of York v. Pilkington, 1 Atk. 282, was a bill brought to quiet the plaintiffs in a right of fishery in the river Ouse, of which they claimed the sole fishery, against the defendants, who (as was suggested in the bill) claimed several rights, either as lords of manors or as occupiers of the adjacent lands; and also for a discovery and account of the fish taken. The defendants demurred to the bill as being matter cognizable at law only. Lord Hardwicke at first sustained the demurrer, but afterwards overruled it. Lord Thurlow disapproved of this final decision; and to this a part of his reasoning in 1 Bro. Ch. R. 40, is addressed.

4 Waring v. Hotham, or St. Luke's v. St. Leonard's Parish, 1 Bro. Ch. R. 40; s. c. 2 Dick. 550. See Metcalfe v. Beckwith, 2 P. Will. 376.

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