Taylor v. Glenn

The opinion of the court was delivered by Mr. Justice McGowan. The judge who settled this case Stated that “The case proposed in this appeal is greatly contrary to the rule of the Supreme Court, which forbids all testimony except such as bears upon the rulings of the judge as appealed from.” We advert to this very just remark for the purpose of again calling the attention of the gentlemen of the bar tó the growing habit of printing the testimony as it was offered on the stand, leaving it for the court to eliminate, if possible, the precise points proper for its consideration. In an action at law, this is not such “a case” as the rule requires, and necessarily leads to great labor and confusion. It seems that this is the second action by the plaintiff for the recovery of a small strip of land in possession of the defendants, lying along a branch called for as the boundary line between them. The plaintiff contends that since the time her predecessors or grantors came into possession, to wit, since 1797, this branch has changed its bed more to the east, and now runs through her land, cutting off about seven acres of her land on the west side of the present channel of the branch. The defendants contended that the branch never has changed, and that it runs now where it originally ran, and they insist that what the plaintiff claims to be the changed bed of the branch is now, and always has been, the boundary line between the two adjoining tracts; and, as a consequence, they [295] claim the seven acres immediately on the west side of the present bed of the branch as their own land. And, besides, they pleaded the statute of limitations in bar of plaintiff’s recovery. The cause came on to be beard by Judge Pressley and a jury, and there was a second verdict for the defendants. A large mass of testimony is printed in the Brief, but not the charge of the judge. In the effort to ascertain whether there was error of law committed by the judge, it will be necessary to take up the exceptions seriatim, which for the most part relate to alleged error of the judge in excluding certain testimony. First exception. — “That the judge erred in ruling out certain testimony of John D. Nesbit, and refusing to let him testify on the trial, that ‘the stake’ which stands (according to the testimony of a number of witnesses) on the west side of the old bed of the branch as represented on surveyor Clark’s plat, was generally known and called ‘Ramsey’s Stake’- — -Ramsey being the owner of the land on the Avest side of said branch prior to the time the same Avas vested in the defendants in this action.” We have looked through the Brief, and Ave fail to find any foundation for this exception. The Case states, “Nesbit Avas asked if he had heard it called Ramsey’s Stake. Defendants objected. The judge ruled that it Avas competent to prove that McMurray had so called it — he being in possession, and that avouM shoAv his claim of possession. Under this ruling Nesbit testified that he had not heard either McMurray or Ramsey, Avho was in possession on the west side of the branch, speak of that stake as a corner or boundary, but both claimed the branch.” No further exception appears. Second and, sixth exceptions complain of the exclusion of the testimony of Ned McOorkle, Mrs. Taylor, John D. Nesbit, Bob Hood, and others, as to the alleged declarations of W. Harper McMurray, made at the time he Avas in possession of the land of plaintiff (1842-3), “that the old bed of the branch, as it ran doAvn around the hills, Avas the dividing line between him and the Ramseys,” &c. Was it error to exclude these alleged declarations of McMurray, that the old bed and not the running stream of the branch was his line ? The action Avas really for the recovery of land, in which the plaintiff must recover upon the strength of [296] his own title, and the question of “boundary” was only incidentally involved as a matter of location. These declarations of McMurray, when he owned the Taylor land on the east side of the branch, are alleged to have been made moro than forty years ago, and were in his own interest, as extending his land across the running branch, to where he claimed that it formerly ran. The rule certainly is, that “hearsay” evidence is not admissible, and in reference to lands, even parol will not always suffice to prove title. It is hardly necessary to say that great caution should be exercised in the application of any rule which is. opposed to this general and well settled principle on the subject of evidence. It is earnestly urged, however, that there'is at least one exception — that declarations of a deceased person may be received on questions of “boundary” between private estates. In the first place, it does not strike us that this is a case of “boundary” in the sense of the rule. There was no question of doubt as to the “boundary,” which was “the branch.” There was no question as to what was called the old bed. It was not difficult to locate like the imaginary line of a surveyor. Under the pleadings the only issue of fact was, whether the branch ever ran in what was called the old bed, which seems to have been decided by the jury in the negative for the defendants. The alleged declarations of the McMurray family go only to the point that claim was asserted to the old bed, assuming, as it seems, (for that affords no proof of the fact,) that the branch at some remote period must have run there, and afterwards changed its channel. We can understand how the declarations of one in possession may be received as showing the extent and character of that possession; and that in certain cases of that kind, the doctrine of res c/estae may be applicable. But we cannot understand how such declarations of claim (mere opinion) can afford evidence of the fact that the branch had changed its bed, and therefore the title is in the plaintiff. This court has lately had the subject of such declarations under consideration in the case of Sexton v. Hollis (26 S. C., 236), in which Mr. Justice Mclver, in delivering the judgment of the court, said: “In this country, however, the exceptions seem to [297] have been extended so as to render such testimony admissible in cases of boundaries between private estates (Ellicott v. Pearl, 10 Peters, 412), as well as to>admit the declarations of deceased persons, who shall appear to have been in a situation to possess the information, and not interested, on questions of boundary between private estates, as for instance the declarations of surveyors, chain-carriers,;&c. Spear ads. Coate, 3 McCord, 227 (and other authorities). But we are not aware of any other exception which has been recognized either by the courts of this country or of England, and as we are admonished by Chief Justice Marshall, in Mima Queen v. Hepburn (7 Cranch., 290), of the danger of allowing fresh exceptions to a well settled and highly salutary rule of evidence, we are not inclined to do so,” &c. This covers the case of McMurray, who was directly’ interested in disregarding the branch as it runs, and claiming to what is called the ‘‘old bed.” To allow such declarations in support of title would be both novel and dangerous. The third exception complains that it was error to rule out the testimony of W. R. Dunn as to alleged declarations of David Hood, an adjoining landowner (deceased at the time of the trial), ‘‘that the original bed of the branch, up at the head and near to his land, as represented on Clark’s plat, and running round close to the hills, was the line between William Harper McMurray and the Ramseys. And he erred in also ruling out the testimony of John Wallace, wherein he offered to testify that in the year 1874 [when] he first cleared or readied 1 up a part of the land in dispute for Mr. Glenn, J. H. McMurray, now deceased, a son of William Harper McMurray, stopped him from clearing, and told him after that year he must work no more on the land.” What we have already said in regard to the alleged declarations of William Harper McMurray, applies to these of Mr. Hood, except that it [298] was not shown that Mr. Hood had an interest in the subject-matter. It did not appear, however, that he had any special knowledge — like that of a surveyor or chain-carrier — of the mean derings of the branch, so as to make him an exception to the rule above stated. The alleged declarations as to where the line ran “between the Ramseys and William H. McMurray,” unconnected with any certain knowledge than the branch had changed its course, could be little more than mere opinion. Besides, it was stated at the bar, and rather confirmed by what appears in the Brief, that these declarations to Dunn, a surveyor in the cause, were made p>ost litem motam. Exceptions four, five, and seven relate entirely to questions of fact and to alleged insufficiency of proof which this court has no right to consider. The charge is not given, arid we have therefore had no aid from the views of the learned judge below; but we have not been able to discover any error of law for which we would be authorized to order a new trial. The. judgment of this court is, that the judgment of the Circuit Court be affirmed.