Fowler v. Savage

Chapman, J. The defendants admit, that the acts complained of, by the plaintiff, were done by them ; and justify, on the ground, that there was a public highway over the locus in quo. The question, then, is, whether the evidence offered by the defendants, was admissible to prove the existence of such highway. 1. Was the survey, or laying-out, of the committee of the •town in 1762, offered and admitted in evidence, admissible 2 It was inadmissible on two grounds : First, it was not accompanied with any evidence, that any •-such committee was ever appointed. An execution is not admissible, without being accompanied with the judgment on •which it issued ; nor is the laying-out of a highway, by a committee appointed by the county court, without producing the -decree of the court, appointing them, as well as their acceptance of it. This is a rule founded on the best good sense, for the judgment, if produced, might be a void one. The committee may — 96 — have exceeded their powers. The court may not have accepted their report. Every reason which could be urged in favour of the rule, as applicable to those cases, can, with equal force, he urged here. No such committee may ever have been appointed ; Or if they were, their powers may have been particularly limited, and they may have exceeded them ; or, lastly, the town may have refused to accept of such laying-out ; and the non-production of the record of their appointment, and the acceptance by the town, creates a strong presumption, that were it produced, it would operate against the defendants. Secondly, had the record of their appointment and the acceptance of the laying-out been produced, it would not have varied the case. The town, in 1762, had no such power. It was given them by statute, in 1773. But it is said, we ought to presume they then had such power. This would be to carry the doctrine of presumption to an unheard of length. Suppose the survey in question had been signed by as many constables or grand-jurors, nay, by as many individuals, acting in their private capacities ; upon the principle of presumption, as claimed in this case, we ought to presume, that there was a law in existence, at that time, which authorised their proceedings. If I am thus far right, it would seem to be unnecessary to discuss the other points in the case ; since there must be a new trial, if the court erred in admitting the survey to be given in evidence. It may not, however, be improper to observe, that verdicts and judgments, between other parties, may, in some cases, be given in evidence. In cases where they operate in rem—create a title, &c., they are admissible, on the same principle that conveyances, which transfer a title from one to another. Where a title to land is acquired, by the levy of an execution against A., the judgment is admissible in a trial in ejectment against B. ; and so would be a deed from A. to the plaintiff; and for the same reason. The plaintiff, in the one case, derives his title from the levy, and, in the other, by his deed. On this principle, the decisions of courts of admiralty are admissible : they transfer property. It is also true, they are sometimes admissible to prove the existence of a public highway ; but never, except where the party claims, by prescription ; and then, merely to corroborate the presumption of — 97 — there having been a grant. A user of sufficient length to create a presumption, must first be proved; and then, in aid of that user, the judgment &c. is admissible. But when the grant itself is produced, (or, as in this case, the survey itself,) such evidence is wholly irrelevant. It is not admissible to give a construction to the grant; nor to make valid, that which, on the face of it, is invalid. In this case, there has been a user of but six years, which creates no presumption in favour of the defendants. The user of what is called the equivalent highway, is wholly foreign to the subject. It conduces only to prove, that a highway was once laid out, in that place ; but certainly not that one has been laid out in a different one. As to the reservation by the proprietors ; I need only remark, that such a reservation gave no authority to the town. I purposely avoid giving any opinion as to what length of time will be required to deprive the public of a right to a public highway, which has been shut up. It is a question of great importance, and attended with much difficulty. A user of twenty years, which, in England raises a presumption of a grant, is essentially different from a prescription. The latter is created by a user, of such length, that “ the memory of man runneth not to the contrary.” Persons acting for themselves, are presumed to be vigilant, in preventing encroachments being made on their property ; and it is therefore reasonable, that they should lose their rights by their own laches ; but it may be questionable, whether the public, who necessarily act by agents, who may be unfaithful, should be subject to the same penalties. I am not aware, that this question has ever been made before the Supreme Court. Brainard and Bristol, Js. were of the same opinion. Peters, J. In trespass quare clausum fregit, the defendants justified under a public right of way, and the authority of the select men of Middletown ; and in support of their defence, offered in evidence, 1. A survey of a highway j laid out in 1762, over the locus in quo, by persons styling themselves a committee. 2. A verdict and judgment of the superior court, in 1813, in a similar action, for a similar trespass, in the same place, between this plaintiff and Calvin Kelsey, who justified under the same right, and the same authority. The court below ad — 98 — mitted this evidence; and the plaintiff now claims a new trial, because, 1. The survey is void. 2. The verdict was between other parties. I concurred in the admission of this evidence on the circuit, and have not changed my opinion. This survey is an ancient transaction, and has been acquiesced in, by the proprietor of the land, and those claiming under him, from its date to the plaintiff’s entry in 1806. This acquiescence appears by their furnishing an “ equivalent passage,” under an express and continued recognition of the public right, which is tantamount to possession, accompanying and following the deed. White v. Crawford, 10 Mass. Rep. 183. But the survey is said to he void for uncertainty. This I cf nnot discern ; as it locates the highway by metes and bounds, by courses and distances, in length and in breadth. “ Id certum est quod certum reddi potest.” It does not indeed appear by whom the committee were appointed ; but their act is recorded among the acts of the town and proprietors; and considering the manner in which our ancient highways were reserved, or left by the proprietors, or laid out by their committees, or by select men, or their committees, we are bound to say, “ that all shall be presumed, which would make this ancient impro-priation good,” according to the maxim, “ Omni a presumuntur solemniter esse acta :” for “ Ternpus est edax rerum ;” and “ God forbid, that ancient grants and acts should be drawn in question, although they cannot be shewn, which was at first necessary to the perfection of the thing.” 12 Rep. 5. Upon this principle, in Massachusetts, whence many of our laws and usages are derived, it has been decided, that records of proprietors are not admissible evidence of their recent transactions, without producing the warrant calling the meeting ; but in a transaction “ seventy years agone,” it is not required. Mass. Dig. 264. Monumoi v. Rogers, 1 Mass. Rep. 159. And copies of ancient proprietary grants are admissible, without shewing the meeting lawfully holden. Pitts v. Temple, 2 Mass. Rep. 538. To the suggestion that this survey was not admissible, unless proved to have been accepted by the town, it is a sufficient answer, that towns were first authorised to do this, in May, 1773.(a) But at the time of the survey in question, the select men(b) were empowered, by themselves, or others. — 99 — By them appointed, to layout highways ; and it is worthy of remark, that the statute did not require their proceedings to be reported to the town, or recorded. Verdicts and judgments are admissible, and conclusive evidence between parties and privies, whenever the same fact or right is drawn in question. It is however said, that this record is “ res inter alios acta." But the plaintiff is the same, and had an opportunity of vindicating his right against Kelsey, and those under whom he justified. In that case, the exclusive right "of the plaintiff, and the public right of the defendant, and all others, were drawn in question, and passed in remjudicatam. Our judicial proceedings will never come to “ a finite end,” if public officers, who are bound to remove encroachments from highways, and keep them in repair, are liable to be sued for repeating the same acts, in the same place, in infinitum. If the justification of Calvin Kelsey, under the authority of the select men, did not make them and their successors “ privies in law," this controversy is interminable.(c) Fowler may be subjected, in qui tarn prosecutions,(d) for his encroachments ; and every select man and citizen of Middletown, justified in removing them ; and yet the public right of way remain unsettled! A doctrine fraught with such consequences cannot he law: “ Interest Reipublicm ut sit finis liiium." The effect of verdicts and judgments in evidence has long been a questio vexata; but to vindicate the decision of the court, it is not necessary to prove it conclusive ; it is enough to prove them admissible ; and this seems to be agreed in all cases of parties, privies and public rights. Swift's Ev. 19. Phil. Ev. 233. But as the charge under consideration seems to have fallen short of a recent decision of this court, silence would be an acquiescence. It has, indeed, been said, by a Judge, whose opinions I highly respect, in Church v. Leavenworth, 4 Day 274. 277. ‘ That a verdict, when offered in evidence, on an issue in fact, is never conclusive ; and is never a conclusive bar, unless in the former case, issue was joined on a precise point, and the verdict is specially pleaded by way of estoppel.” F or this reliance is placed on the opinion of Ld. Ellenborough, in Outram v. Morewood, 3 East 346. who, in support of this doctrine, carries — 100 — us back to the year-books, where all pleadings were by parol. 2 Reeve’s Hist. 267. But in this case, “ issue was joined on a precise pointand “ it is difficult to assign a reason, why a judgment should not have the same conclusive operation, if given ⅛ evidence, as it would be admitted to have, if pleaded in bar,” especially when, by statute, “ the defendant may give in evidence under the general issue, his title, or any other matter in his defence or justification, except some act of the plaintiff, whereby the defendant is saved or acquitted.” Many cases have been cited : a few have satisfied my mind. In Rex v. St. Pancras, Peake’s Ca. 219. it was holden by Lord Kenyon, that a conviction of one parish for not repairing a road, was conclusive evidence for another parish indicted for not repairing the same road; and in Whately v. Menheim & Levy, 2 Esp. Rep. 608. charging them as co-partners, it was decided by the same learned judge, that a verdict on an issue between the defendants, finding them co-partners, was conclusive evidence in favour of Whately ; and in Strutt v. Bovingdon & al. 5 Esp. Rep. 58. (subsequent to Outram v. Morewood,) in an action for obstructing a water-course, Lord Ellenhorough thought himself bound to tell the jury, that a verdict in favour of the plaintiff against Bovingdon only, for a previous obstruction of the same watercourse, was “ admissible and conclusive evidence of the rights of the parties,” and against all the defien-dants. “ The question on that record,” said his lordship, “ was a question of right ; three of the counts in the former cause and in the present, stating the right claimed by the plaintiff, and the obstruction by the defendants, were nearly in the same words ; and the places where the obstruction was laid, were proved to be the same.” In the duchess of Kingston's case, 11 St. Tr. 261. it is said by Lord Ch. J. De Grey, “ that the judgment of a court directly on the point, is, as a plea, or as evidence, conclusive between the same parties, on the same matter directly in question in another court.” And in the court of appeals of Virginia, Shelton v. Barbour, 2 Wash. 64. it was decided, that “ between parties and privies to the former suit, the verdict is conclusive evidence.” But the case of Canaan v. Greenwoods Turnpike Co., 1 Conn. Rep. 1. 7. is,“ instar omnium,” wherein the same doctrine is explicitly laid down by Trumbull, J., in delivering thé opinion ofthe court. “ A judgment,’’says the learned judge, “ decree, sentence or order, passed by a court of competent jurisdiction, which creates or changes a title, or — 101 — any interest in estate, real or personal, or which settles and determines a contested right, or fixes a duty on one of the parties litigant, is not only final as to the parties themselves, and all claiming by or under them, but furnishes conclusive evidence to all mankind, that the right, interest or duty belongs to the party to whom the court adjudged it. It is admissible evidence in favour of any person, who may be interested to prove the existence of such right or duty as a fact.” I, therefore, do not advise a new trial. Hosmer, Ch. J., being an inhabitant of the town of Mid-dletown, declined giving any opinion. New trial to be granted. Footnotes [(a)] Statutes, page 380. revision of 1750. [(b)] Ibid, p. 88. [(c)] Co. Lilt. 352. a. [(d)] Statutes, tit. 77.