Herrick v. Stover

By the Court, Marcy, J. The evidence of the surveyor was objected to as inadmissible, but received by the court, and it is now contended, that if that decision was incorrect, the plaintiff wholly failed in shewing title to the premises, the foundation of his action failed, and any subsequent errors in favor of the defendant cannot avail him. I think the record was sufficient evidence of the breadth of the road. It gave the distance through the defendant’s land, the course and the quantity of land taken. It is a result of calculation, that a passage way one rod wide on each side of the course stated in the record, for the distance the road ran through the defendant’s land, would require precisely the quantity of land taken for that purpose from the defendant. In legal intendment, the road will be considered as laid out, (the course specified in the record taken as the centre,) of such a width as the quantity of land will permit. Although lire record did not shew on its face the width of the way, it furnished the means of arriving at that fact with certainty; one object, probably, of examining the surveyor, was to make the calculation, (or rather to shew the result of it,) for making which the record furnished the means; his testimony was not offered with the view of altering or contradicting the record; it was not to supply a defect in the record. His testimony was also required for the purpose of locating the premises. The record showing the distance, the course and the quantity of land, the law adjudges, where nothing [585] to the contrary is specified, the breadth in all parts to be equal, and the surveyor was examined to shew from these data what that breadth was. The plaintiff therefore established in a proper manner, that the road was to be two rods wide. The fence built by the defendant on the sides of the road was what is usually called a Virginia feme; the angles projecting equally and alternately into the road, and on to the land of the defendant. Had the defendant a right to build sue!) fence without (he license of the plaintiff? I think he had not. The plaintiff had been assessed, and bad paid for a passage-way two rods wide, and giving one less than that width, was not allowing him all he had acquired and might demand. It is not an answer to this action, to say that he was not interrupted in the use of the road by the fence. The placing of it ten or twelve feet on the land he had acquired for his road gave him a cause of action, unless he had yielded his assent expressly or impliedly to such location. I think the charge of the court in relation to the width of the road exceptionable. So far as the record went, it was unimpeached and unimpeachable, and it shewed, according to the calculation of the surveyor, that a road two rods wide had been laid out. If it had been shewn that this calculation was incorrect, or if the data on which it was made could in any view have furnished a different result, there might have been a question of fact for the jury; but the testimony raised no doubt on this subject; and yet, by the charge of the court, the width of the road was left to the jury as a matter of fact. In this the court erred, and for this error we are obliged to reverse the judgment. As a venire de nova must be awarded, it may be proper to say something upon the other point of the case. What was said at the time the road was laid out and the appraisement made, by strangers or by individual appraisers, the plaintiff not being present, was inadmissible testimony. The expectation of the appraisers as to the mode of locating the fence, unless these expectations were made known to the plaintiff [586] and received his explicit or tacit assent, should not have been £’yen 111 ev*dence to influence the jury. Although the road was ,0 lwo l"°ds wide in the clear, and the plaintiff could h;lve insisted upon such a road, yet, if he gave his assent to have the defendant’s damages assessed with reference to such fence as was built, with the centre on the exterior lines of the road; if he afterwards assented to the location as it was made j. or if he saw the defendant constructing it as it is, and knowing that the angles encroached upon the road and was silent, he ought not, in my opinion, to sustain an action for damages. In either of those cases the law would regard him as having assented to the act which he now complains of as an injury. It was suggested, on the part of the defendant, that as this was evidently a vexatious suit, and the damages which the plaintiff would be entitled to recover wTould be merely nominal, we ought not to interfere, even if there bad been an error. The rule referred to by the counsel for the defendant has never, I believe, been applied to a case like this. The cases in Burrows, 11, 54, 664, were motions for new trials, where verdicts had been rendered against the weight of evidence, and the court refused to grant the applications, because the damages were trivial and the prosecutions appeared to be vexatious. In the case of Edmonson v. Machell, 2 T. R. 4, there was an alleged misdirection to the jury by the judge who tried the cause. The court refused to set aside the verdict or pass upon the questions of law, because they thought justice had been done between the parties. In actions of assault and battery and for trespasses, this court have refused new (rials for the misdirection of the judge wdrere there was little or no injury. In Hyatt v. Wood, 3 Johns. R. 239, (he court refused the motion for a new trial, but they said if the action had been quare clausum fregit, in which the right to the freehold came in question, they should have decided otherwise. Lord Kenyon said, in Wilson v. Rastall, 4 T. R. 753, that he did not recollect a single case, where a mistake of the judge had crept in and swayed the opinion of the juty, in which the court had ever refused to grant a new trial. I apprehend the case before us differs from any to which the rule [587] mentioned in the above cases has been applied. It is much like the case which was considered in Hyatt v. Wood, an exception. The object of this suit is not merely to recover such damage as the plaintiff may have sustained, but it is also to determine the extent of his right to property acquired for a private way. There is also a difference, as I apprehend, in the application of this rule, whether applied to a motion for a new trial or a writ of error. It is said by Jlshursl. justice, in Edmonson v. Machell, that “an application for a new trial is an application to the discretion of the court, who exercise that discretion in such a manner as will best answer the ends of justice.” But where a record is brought into this court for revision, and error is found in if, is it a matter of discretion in us whether we will correct that error or not 1 I have always supposed that the party who has been affected by an error, be the extent of that injury ever so small, can require of us ex debito justilice to correct it. Judgment reversed, and a venire de nova to Rensselaer common pleas.