Child v. Kingsbury

The opinion of the court was delivered by Wheeler, J. I. The plaintiff’s counsel insists that there was error in admitting evidence of declarations of Benjamin Hinman and Charles Kingsbury, deceased, because their knowledge of the line about which their declarations were made, was not sufficient, and because they were interested about it. The case shows that the plaintiff admitted on trial that both these persons, were well acquainted with the original lot lines in Derby, and especially acquainted with the lots in controversy at a very early period. The case also shows that each had owned land adjoining the boundary which they spoke concerning. This admission and statement shows such connection of these persons with the boundary, and the land about it, as to leave it very fairly to be inferred that they had actual knowledge concerning the boundary, and to bring the evidence of their sayings very clearly within the rule, in this respect, governing this kind of evidence. The case dees show that these persons had been interested in this boundary before they made the declarations, and perhaps it shows enough so that it may fairly be claimed that they were so interested at the time they were shown to have stated in regard to it. But however this may be, the case does not show that they were interested to misrepresent in regard to what they said about it. . It does not appear that any one was claiming to so locate the boundary as to restrict the land of either, nor that [54] either was so situated as to desire to have it located anywhere but in its true place, nor that in anything either said, he was speaking in subserviency to any wish on his part to maintain any one particular location of the line over another. There are cases, it is true, that would exclude such declarations as these, although they would admit those of deceased persons disinterested in every respect. The chief justice, in the learned opinion in Wood v. Willard et al. 87 Vt. 377, states the rule to be, to admit the declarations of those deceased persons shown to have had sufficient knowledge, not interested to misrepresent, but not requiring that they should be wholly disinterested in the subject. In Smith v. Powers, 15 N. H. 546, the declarant appears to have been so situated that he was interested in the subject of the declarations, but not so as to be considered interested to misrepresent about it. His declarations were held admissible, and the decision is referred' to with approval in the opinion before mentioned. The declarations of deceased persons so situated, appear to have been held admissible in several cases cited in note 87, pages 219, and following, of 1 Phil. Ev., with notes. In Miller v. Wood et al. 44 Vt. 378, Gaius Briggs appeared to have been interested in the lands about the line in controversy, but, having deceased, his declarations concerning it were admitted in evidence without question. The general rule admitting evidence of declarations of deceased persons of competent knowledge, is not questioned in this case, and we think that the evidence admitted by the county court falls within it, as understood and practiced upon in this state. II. The evidence as to what the plaintiff had heard about Cummings’s survey, appears to have been introductory merely, and not material or important. The original survey, in connection with evidence that it was passed from the defendant’s grantor to the defendant at the time he conveyed the land, was proper evidence of claim of title. Kidder v. Kennedy et al. 43 Vt. 717. Perhaps, as Cummings, the surveyor, was dead, it was admissible the same as an oral declaration by Cummings, to the same effect as the survey would have been. Oatman v. Andrew, 43 Vt. 466. [55] III. There was no error in admitting the passage objected to in the deposition of Stearns. Occupation is a fact. The effect of it, when its nature and extent are shown, is a matter of law. The witness stated the extent of this occupation as to time and space, but did not undertake to state any legal conclusion from it Kidder v. Kennedy, supra. IV. That part of the charge wherein the court stated that neither the parties nor their grantors need have been in actual occupancy of the lots, in order to establish the line by acquiescence, is not shown to have been erroneous. It is not claimed but that there was evidence to warrant this- charge, if the principles of law would warrant it; but it is claimed that the rule .of law laid down was erroneous. In Clark v. Tabor, 28 Vt. 222, it was directly held that constructive possession of land adjoining a line acquiesced in, would be sufficient to bind the adjoining owners to that line, if continued a sufficient length of time. V. There was no error in the failure to charge, that is complained of, as there was no evidence to warrant any charge in that direction. Judgment affirmed.