White v. Everest

Hutchinson, J. after alluding to the prominent facts in the case, delivered the opinion of the court. The principal business for the jury was to ascertain where the line is that legally sepa- ' ratesbetween lot 24 and 25. For, we must understand from the case, that the plaintiff owns lot No. 24, and the defendant lot No. 25, excepting that the north ten acres of 24 have become legally attached to No. 25. If it were not so, the party excepting must show it, in order to evince that the decision of the County Court of which he complains is incorrect. Now, the plaintiff contends that the defendanthas gone south, and evicted him from a second ten acres of lot No 24. To show this, the plaintiff has endeavored to establish a line so located as to answer that purpose ; and contends it was the ancient division line made by the proprietors. Or, ifnot, was made by agreement of the owners, and acquiesced in by them so long as to place it out of dispute! The court instructed the jury, that if the line the plaintiff contends for was made in the first division of the town, it must be considered the true line between those lots. Had the jury so found the fact, the plaintiff must have had ,a verdict. The acquiesence in the line made by agreement of the parties falls short of fifteen years. The jury were, therefore, correctly instructed, that this line so made was not conclusive between the parties. If it had been so made, and acquiesced in as a division line fifteen years, that would have rendered it conclusive. An agreement and acquiescence short of that period cannot, of themselves, preclude either party in interest from claiming a true division as other circumstances shall dictate. ' The second question relates to the testimony of Zadock Ev~ erst, who, it seems, was unwilling to testify for the plaintiff to a fact which, if proved, would have made that the plaintiff’s act, which the defendant relies upon as an interruption of the plaintiff’s possession. The court refused to compel Zadock to testify, and [189] the plaintiff excepted to that decision.' It appears by the case that said Zadock had not merely an interest in the question contested, but an interest in the cause on trial; in fact, that he was really the defendant, though not nominally so ; the defendant’s possession being as that of á tenant to said Zadock. Observing this distinction decides the question. Zadock -can no more be compelled to testify against his interest, when his interest is made to appeal-, as stated in the case, than if it appeared of record by his being made defendant. The plaintiff’s counsel urge the hardship of the plaintiff’s situation, aá they would not be permitted to prove Zadock’s concessions if they made for plaintiff. That is, probably, a supposition for the sake of argument. Had evidence of his concessions been offered and excluded, that would have presented a question for the consideration of this court which is not now in the case. Sates, for the plaintiff. Phelps, for the defendant. Judgment must be entered on the verdict with the cost of this motion.