Evarts v. Young

The opinion of the court was delivered by Ross, J. This is an action of trespass on the freehold. The plaintiff and defendant are proprietors of lands lying contiguously to each other. The contention is in regard to the boundary line between their lands. The plaintiff had been in possession of the land lying south of the disputed line, since 1824, claiming to own it. Anson Evarts, his brother, about the same time went into possession of the land north of the line in dispute, and continued therein to the time of his decease, in 1874, claiming to own it. The defendant derives title through Anson Evarts. The plaintiff claimed that the “ red line ” on the plan introduced by him was the true line, while the defendant claimed that the line [333] starting from or running through the “ stone corner ” was the true line. The plaintiff’s testimony tended to show that he and his brother Anson and father Reuben, in 1831, procured a surveyor, Judge Beeman, to run the line — not on the line between the lots — so that there was an exchange of a small amount of land between them, and that the line thus run was acquiesced in by him and Anson Evarts until the death of Anson Evarts, in 1874, and was the line to which he claimed. This testimony was uncontradicted, except by the declarations of Anson Evarts, made within the last twelve or fifteen years, that the “ stone corner ” was the corner of his land, and by a declaration of the plaintiff made nineteen years before the trial, in regard to the location of the end of a wall built by him running at right angles with the line. The declarations of Anson Evarts were allowed to be shown, against the exception of the plaintiff, and were allowed by the court to be used as tending to show where the line between them in fact was. In giving, or allowing to be given, to this evidence this scope and effect, we think the County Court erred. A party is not allowed to show his own declarations or the declara, tions of those through whom he claims title, in his own favor, unless such declarations accompany and give character to some act affecting his title, and so become a part of the res gestee. This subject has frequently received the consideration of this court. In Wood v. Willard, 36 Vt. 82, it was held that the declaration of the grantor as to where his line was, made at the time he sold and conveyed the premises to the plaintiff and while upon the premises pointing out the line, were not admissible. On the other hand, in Kimball v. Ladd, 42 Vt. 747 ; Noble v. Sylvester, 42 Vt. 146 ; Perkins v. Blood, 36 Vt. 273, it is held that the declaration of a party or of a person through whom the party derives title, made while exercising a right or easement, and tending to show that he claimed to exercise it in his own right, or that he had not abandoned his prior possession or right to á piece of property, are admissible for such purpose only. Under this rule the declarations of Anson Evarts allowed to be shown, were admissible to rebut the testimony of the plaintiff tending to show that, at the several times when they were made, Anson Evarts [334] was acquiescing in the line claimed by the plaintiff, and only for such purpose. They were not admissible for the purpose of showing where the Beeman line was, nor where the true line between him and the plaintiff then was ; and on the question of acquiescence they should be confined strictly to the periods of time at which they were respectively made, and not be allowed as tending to show that he had not from 1831 to the time of making such declarations, acquiesced in the line as the plaintiff’s testimony tended to show. Acquiescence is the state of a party’s mind regarding a particular subject or thing, and his declarations on that subject or thing, are the indices of his state of mind thereon at the times they are respectively made. These declarations, although Anson Evarts has deceased, do not fall within the rule established in Wood v. Willard, 37 Vt. 377, Powers v. Silsby, 41 Vt. 288, and some other more recent cases, allowing hearsay testimony, or declarations in regard to ancient boundaries between the estates of private individuals. The rule for the admission of such testimony, as expressed by Piebpoint, C. J., in Wood v. Willard, supra, is, “ that the declarations of deceased persons who had actual knowledge as to the location of such boundaries, or who, from their connection with the property itself, or their situation and experience in regard to such boundaries and the surveys thereof, had peculiar means of knowledge so that it may fairly be inferred that they had actual knowledge of the same, made at a time when they had no interest to misrepresent, . . . may be received as to the location of such boundary, when from lapse of time there can be no reasonable probability that evidence can be obtained from those who had actual knowledge on the subject.” It is an important.qualification that the declarant, at the time of making the declaration, should have no interest to misrepresent. Anson Evarts making a claim in his own favor, was not thus disinterested. Whether the transaction in regard to the Beeman line was of such antiquity as to allow this class of testimony for the establishment of its location, is not admitted nor decided, as this testimony for this purpose is held inadmissible, on the ground that Anson Evarts, when [335] he made the declarations, was interested in having the stone corner established as his corner. There may be some question whether the plaintiff was not entitled to a fuller compliance with his request. The charge of the court states the doctrine in regard to the establishment of a line by acquiescence correctly, but fails to call the attention of the l'ury to the fact that if the plaintiff’s evidence established that line where he claimed it to be by fifteen years’ acquiescence immediately following 1831, the burden would be then cast on the defendant to show it had been subsequently changed to the place where he claimed it to be. We are not able to see for what purpose the proprietors’ records of the town of Georgia were admissible, as neither party, as we understand the exceptions, claimed the original lot lines to be the true line between them. Neither is it manifest to us how the plaintiff could have been prejudiced by their admission. We should have been reluctant to have reversed the case on this exception, as, at most, we regard this testimony immaterial to the determination of the issue on trial. Judgment reversed, and cause remanded.