Clark v. Boardman

Heard at the February term, 1868, decided at the February term, 1869. The opinion of the court was delivered by Pierpoint, C. J. The defendant insists that the county court erred in excluding the evidence offered by him, of what passed between the defendant and the plaintiff at an interview that took place a short time after the cutting of the elm tree by the defendant, which is one of the acts complained of. We think this evidence was properly excluded. It was not admissible as tending to rebut malice. Whether the act was-maiicious, or not, was for the court to determine on an application for a certificate under the statute. Again, the declaration of the defendant, made after the trespass was committed, would not be admissible to show the motive of his acts, even though the declaration was made to the plaintiff. It was not admissible as tending to show an acknowledgment by the plaintiff that the defendant was in the adverse possession of the land where the elm tree stood. Conceding that the plaintiff on that occasion said all that the defendant offered to prove, it has no tendency to prove such an admission. The defendant then claimed that he was in adverse possession but the plaintiff did not assent to such claim, and what he did say shows [677] that he did not strictly acquiesce therein. It was not admissible as a part of the res gestee. It occurred too long after the act complained of to come under that head. The plaintiff’s first request to charge the jury was substantially complied with. Whether the Slocum piece was embraced within the description of the locus in quo, in the plaintiff’s declaration, was in dispute between the parties and was to bo determined upon all the evidence bearing upon the point by the jury; it was not a simple question of construction. The court submitted the question distinctly to the jury, and told them that the plaintiff could not recover for any trespass proved that was not committed upon the premises described in the declaration. Under the charge no verdict could have been rendered for any trespass committed upon the Slocum piece, unless the jury found that the premises described in the declaration .embraced that piece.- As to the second request, the court charged the jury that the breaking and entry by the defendant into the close so described was the substantive ground of the action, and that so far as such breaking and entry was effected by the act or means of breaking down a fence belonging to the close, the damage occasioned thereby might properly be taken into consideration as a part of the damages to be recovered for. We think the defendant cannot complain of the charge. The plaintiff, in actions of this kind, can recover for the natural and necessary consequences of the act charged. Hutchinson v. Granger, 13 Vt., 386. In this case the plaintiff was allowed damages only for the very act of breaking the plaintiff’s close. No objection is made in this court to the charge in answer to the third request. The fourth request was properly denied. The question here is not whether this request contains a correct legal proposition, but whether the defendant was, upon the verdict in the case, entitled to such a charge. The exceptions show affirmatively that there was no evidence tending to show that any of the grantors, in the chain of title under which the defendant’s farm was held, ever claimed any right or title to the said strip of land between the old highway and the [678] river. This being so, there was no evidence to warrant such request, or a charge in acccordance with it. No question is raised here upon the motion in arrest, hence we have no occasion to consider it.. The judgment of the county court is affirmed.