Melcher v. Merryman

Howard, J. Whether the plaintiff was entitled to a verdict, upon the evidence, cannot now be the subject of in [603] quiry, as the appropriate motion and report for that purpose are wanting. The exceptions present no such question. Exceptions were taken to the exclusion of certain deeds offered in evidence by the defendants. The deed, Rodick to Bishop, did not embrace any part of the premises in controversy ; nor did it appear to be important, either in tracing the title, or explaining the possession of the parties, or those through whom they claimed. The defendants failed to show that, when presented, it would furnish material or competent evidence, and it was therefore properly excluded. "When the deeds of Dunlap to Melcher, and Dunlap to Thomas Merryman, were offered by the defendants, the plaintiff had not shown or claimed any right or title through any of the parties to those conveyances; and, as it was admitted that they did not purport to embrace any of the land in controversy, they were not then material, and their exclusion was then proper, and furnished no just ground of exception. If, subsequently, the plaintiff, by introducing evidence of title derived through Dunlap, opened the way for the admission of Dunlap’s deed to Melcher, previously offered by the defendants, and then excluded, it could not be considered as in the case, or before the Court, unless again offered as evidence. It could not be available to either party until it was offered, after it had become admissible, and was then either admitted or rejected. It appears, however, that when the counsel for the defendants referred, in his argument, to that deed as explaining, or referring to a corner named in a deed offered by the plaintiff, the counsel of the latter withdrew his objections to its introduction for that purpose. But then, even, it was not introduced, and formed no part of the evidence presented, after it had been legally rejected. Exceptions were also taken to the directions of the presiding Justice, respecting the rules to be observed in determining the line between the lands of the parties to the suit. It was admitted, that they claimed to be owners of land in different adjacent lots; neither claimed any rights upon [604] the lot of the other. It became important at the trial for the jury to determine where the line between those lots would fall, and whether it was originally run and traced upon the earth. To enable them to determine those facts, they were referred to the evidence, with directions that an original location of the line, if shown to have been run and marked, was to be ascertained by tracing it from monuments established, or places where monuments were proved to have been placed or found in such location, in direct lines, whether such monuments were more or less distant from each other. No substantial objection is perceived to these instructions, while the doctrine prevails, that in tracing and determining lines upon the face of the earth, monuments should control courses and distances, and while straight lines between given points are the shortest and most.direct. That the plaintiff’s possession should be considered as coextensive with his grant, where there was no adverse possession, cannot be questioned; indeed, the principle is admitted by the defendants to be sound, though its application is held by them to be incorrect, upon the facts supposed to be proved. Such possession is sufficient to enable the plaintiff to maintain trespass quare clausum fregit. Exceptions overruled. — Judgment on the verdict. Rice and Cutting, J. J., concurred.