Hale v. Rich

The opinion of the court was delivered by Ross, J. I. The plan of the two lots, the location of the division line between which was the subject of controversy, was made by the plaintiff’s attorney, not a surveyor, and not from any survey of the lots. The plaintiff testified, and was-uncontra224 dieted, that “ it was all right, and located the land correctly, as near as he could see.” The defendants excepted to the ruling of the court allowing the plaintiff to use this plan for the purpose of explaining to the jury what his claim was in relation to the location of the lots, and where the division line was. The charge of the court to the jury, limited the plaintiff’s use of the plan, strictly to this purpose. We find no error in this ruling. It falls within the principle announced in Wood et al. v. Willard et al. 36 Vt. 82. The plan has been produced before this court. When compared with the plan made from actual survey by E. W. Jewett, we see nothing in it that does not fairly represent what he claimed in relation to the location of the two lots, the highways, brook, and other natural objects on them, as well as the location of the pieces sold from the defendants’ lot by their grantor, Mason Peters. We do not think that it is a prerequisite to the admission of a plan for such a purpose, that it should have been made from an actual survey. If the court can see that it is a fair representation of the location of the lots, lines, and natural objects, as the testimony of the party introducing it tends to establish them, it is the right of the court to allow the party to use it, not as evidence, but by way of illustration and presentation of his claims to the jury. Such plans stand related to the triers very much the same as a personal inspection of the locality. From such inspection, the jury would not obtain accurate knowledge of distances, but would obtain a general idea of the relative location of various objects that would be likely to be brought out in the testimony, and in that manner receive aid in understanding, applying, and giving the proper influence to the testimony. It would be the duty of the court to reject any plan that would tend clearly to mislead the jury, or would not fairly represent the relative location of the various objects referred to in the testimony, and having more or less bearing in determining the issue between the party. The defendants’ counsel have especially complained that the jury were allowed to take the plan with them to the jury-room. No exception was taken to this action of the court; but, as is said by the court in Wood v. Willard, if it is permissible to show a plan to the jury for the purpose of aiding [225] them in understanding, applying, and weighing the testimony, we do not see why they do not need, and should not have, that aid so long as they have the testimony under consideration.' We think the defendants have no occasion to complain, in this respect, of the action of the County Court. II. Mason Peters is a grantor in the defendants’ chain of title. As late as 1856, he was in possession of the defendants’ lot, and in connection with N. W. Isham, the then owner of the plaintiff’s lot, located and built the fence which the plaintiff claimed was on the division line between the two lots. The defendants claimed that the division line of the lots was a few rods southerly of this fence. To rebut the testimony introduced by the defendants to establish the line as they claimed it, the plaintiff was allowed to use in evidence copies of two deeds given by Mason Peters while he was in possession of the defendants’ lot, conveying parcels of the lot lying northerly of the disputed territory, and contiguous to the plaintiff’s lot. The division line between the lots is a straight line. The description in these deeds commences at a certain birch tree, and runs easterly and westerly along the division line. The evidence tended to show that this birch tree was on or near the line as the plaintiff claimed it. The declarations of one in possession of real or personal property, qualifying or limiting the extent or character of his possession, are always admissible against those claiming under him. The defendants claim under Mason Peters. On this principle, his declarations in these deeds, as to the location of the division line between these lots, were properly admitted against the defendants. Davis v. Judge, 44 Vt. 500. III. The defendants have excepted to the ruling of the court, submitting whether the plaintiff had acquired title to the land southerly of the fence by adverse possession. It was the duty of the court to submit this question, if there was any evidence tending to establish it. The plaintiff’s testimony tended to show that the fence was built for a division fence by the grantors of the parties, in the summer of 1856, and that the plaintiff and his grantor had been in possession to the fence till December, 1871, [226] more than fifteen continuous years. It was conceded that m April, 1871, the defendants cut a tree on the plaintiff’s side of the fence, and that soon after, a dispute arose in regard to the location of the division lino ; that the plaintiff procured .surveyor Hull to run the line ; the defendants procured surveyor Leach to run it; and in November, 1871, the plaintiff had E. W. Jewett run it. No two of the lines thus run were located in the same place, and neither of them was agreed to by both parties as the true. line. All that time the plaintiff claimed that the fence was on the line, and the defendants, that the true line was some rods south of the fence. The defendants claim that these conceded facts are an interruption of the plaintiff’s possession. We think that no more can fairly be claimed for them than that they tended to show such interruption, and that the court committed no error in submitting to the jury, under proper instructions, to find whether the plaintiff had acquired title to all land south of the fence, by adverse possession. The facts in the case at bar are unlike those in Admr. of Russell's Estate v. Maloney, 39 Vt. 579. In the latter case, the parties mutually agreed to waive the line that had been run, and to get a surveyor and have the line rerun. The court held, that after this agreement, and until the line was rerun, each party’s possession was coextensive with his deed, and no further. There is no. statement in the exceptions of any evidence tending to show that the plaintiff, after the dispute arose, abandoned, or agreed to abandon, his possession to the disputed tract. We find no error in'the proceedings in the County Court, and the judgment of that court is affirmed.