Sullivan Granite Co. v. Gordon

Appleton, G. .J. This is a real action to recover what is claimed as a portion of lot seventy-one, in the town of Sullivan. The defendant .purchased part of an adjacent lot of one Miller in 1841. The land was run out at the time the defendant received his deed. The act of Miller, who has since deceased, at the time the land was so run out, in pointing out the north-east corner of his lot, and his declaration that the spot thus pointed out was such north-east corner, were received subject to all legal objection. It is well settled that the declarations of the owner of a tract of land, as to its boundaries, while in possession, are admissible against him, and all persons claiming title under him. But here the acts and declarations have no reference to the corners of lot seventy-one. The act of pointing out a corner is no transaction with which these parties, so far as relates to this suit, have any connection. Neither party derives title to the premises in controversy from Miller. The corners of his lot are not those of the one in dispute. The declarations of Miller are but hearsay: They ax-e xxoxxe the less hearsay, because the declarant may have been, at the time, ixx possessioxx of the lot, to the corner of which his declarations x’elate. Ixx all the cases in this State axxd ixx Massachusetts, ixx which declax’atioixs have been received, they related to the land ixx coxxtroversy, were made by the declarant while ixx possessioxx, axxd were offered ixx evidexxce against him or those deriving title .xxnder him. Chapman v. Twitchel, 37 Maine, 59. Bartlett v. Emerson, 7 Gray, 174. “ The exceptioxx to the general ride excluding heai’say evidence,” x’exnarks Gray J., in Hall v. Mayo, 97 Mass. 418, which perxnit the introduction of reputatioxx or tradition, or of declarations of persons deceased, as to matters of public or general interest, or questions of pedigree, do not extexxd to a question of private boundary, ixx which no considerable number of persons have a legal interest.” [523] In Daggett v. Shaw, 5 Met. 223, tbe declarations related to tbe same land of which the declarant was in possession, when they were made. They were declarations against interest, and therefore received. Exceptions sustained. Cutting, Walton, Dickerson, and Danforth, JJ., concurred. Kent and Barrows, JJ., did not concur.