Dudley v. Elkins

Bell, J. An agreement fixing the dividing line between adjoining owners is binding, although the agreement is by parol. Prescott v. Hawkins, 12 N. H. 26, and cases there cited; Enfield v. Day, 7 N. H. 467; Clough v. Bowman, 15 N. H. 511; Carlton v. Redington, 21 N. H. 301. A like agreement between owners of adjoining lands, that the line between them shall be ascertained and settled by a surveyor, is, when executed, conclusive upon them and all claiming under them. Sawyer v. Fellows, 6 N. H. 107, and eases there cited. Possession up to a line is evidence from which a jury may infer such an agreement. Richardson, Chief Justice, Enfield v. Day, 7 N. H. 468. The charge of the court -was in strict accordance with these decisions; that the parties might agree that a surveyor should run and establish the line, and if the surveyor, in pursuance of such agreement, and while it was unrevoked, did so run, mark and establish the line, the parties and their grantees would be bound by it; but at [85] any time before the line was actually run and established either party might revoke the agreement; that there was evidence in the case competent for them to consider, as tending to prove such an agreement and consequent establishment of the line, and if they found the facts to he so the line was binding on the parties. If the line was run by a surveyor employed by both parties, without an.agreement to be bound by his line, and the parties afterwards agreed to the line as run, they would be bound by it. Though the parties at the time were dissatisfied with the line, yet, if they acquiesced in it, and each party, on his own side, cut, as he had occasion, up to the line and no further, from 1825 to 1856; and each knowing what was so done by the other, neither made any complaint, it would be evidence from which the jury, if they deemed it sufficient, might find an agreement to abide by the line; but such occupation, to be evidence, must be uninterrupted and undisputed. This statement of the law, as substantially given in the charge, seems to us correct. As to the question of fact, whether there was competent evidence before the jury to prove an agreement and settlement of the line by the surveyor, or by the parties, the defendants requested the court to instruct the jury that there was no competent evidence to prove an agreement to abide by the line run by Parsons, either before or after it was run. It seems to us, according to the case, there was no foundation for this request. It is there said the demand-ants’ evidence tended to show that there was a verbal agreement between the Dudleys and the Pages that Parsons should run the line, and they would abide by his decision; while the defendants’ evidence tended to show that no agreement of any kind was made that day. It is now contended that the sons of J. & P. Dudley, the owners, were not authorized to make such agreement. They [86] were only directed to go and see to it, and attend to the running. It was competent for the jury to consider the relations of the parties, the situation of the owners and of the property, the acts of the parties at the successive runnings, in connection with the long acquiescence of the parties interested since, if they regarded that as proved, in putting a construction upon the loose and uncertain directions, and to determine if the language used gave authority to agree upon the line. It could not with propriety be said there was no evidence of such authority. As to the second instruction requested, it was not warranted by the facts stated, and we think the rule laid down to the jury on that point by the court was correct.' Long acquiescence is evidence of an agreement to a line. Rockwell v. Adams, 6 Wend. 469; Jackson v. Ogden, 7 Johns. 245. The third, fourth and fifth instructions were substantially given to the jury. The last, that if there was an agreed line it cannot avail the plaintiff, because he is limited by his deed to the true range line, was not called for upon the evidence. By the deeds it appeared that the land conveyed by J. & P. Dudley to Nathaniel Dudley and by him to the demandant, was bounded towards the southeast by the range line running southwest. In giving a construction to these deeds it is competent for the court to consider the condition of things at the time, as understood by the parties, so far as they are enabled by the evidence to do it; and if it appeared that the location of the range lino had been in doubt, and had been settled by agreement with the adjoining owners, the deed might be fairly construed to bound the land conveyed by the line thus settled, whether it included more or less than the original range line would embrace; since the term, range line, might apply to the original range line, or to the supposed range line, as established by the parties. [87] The case of Robinson v. Miller, 37 Me. 312, is relied on by the defendants, as establishing the principle that the plaintiff can derive no advantage from the agreed line, to which, as such, no reference is made in his deed; that to allow him to recover under the agreed line is to contradict or vary the plain and unambiguous stipulations of his deed, and to enlarge his grant in a manner unauthorized by law. The counsel probably did not advert to the difference between the views of the courts of Maine and Massachusetts, and those of the courts here and in some other States, on this subject. In the first named States an agreement of parties to establish a line is not conclusive. It is merely strong evidence of the accuracy of the line thus established. Whitney v. Holmes, 15 Mass. 153; Gove v. Richardson, 4 Greenl. 327; 9 N. H. 477; Sparhawk v. Bullard, 1 Met. 95; Clark v. Stone, 1 Met. 378. Here, if the parties agree on the range line which is their boundary, as between them, it is the range line conclusively, and when they speak of the range line they may well be understood as meaning that line. There, if the parties agree on a line as the range line, it is not, even as between them, the range line, but the agreement is merely evidence that the agreed line is the true range line, and when the party speaks of the range line he must be understood to refer to the true line. The result from our decisions seems most reasonable and satisfactory, since it can hardly be supposed that the seller of land, using the same description by which he holds it, would not intend to convey to his line as settled, or that he would not intend to give to the buyer the advantage of his settlement as to a disputed line. Hearsay evidence is generally inadmissible; and it cannot be asked, even on cross-examination, what others have said, though the apparent object is to ascertain a reason for the party’s noticing and recollecting another fact. A [88] witness may be asked if anything that was said at the time enables him to recollect, but he cannot be asked what was' said, if that would introduce testimony otherwise improper. The question to Nathaniel Dudley was, therefore, properly disallowed. The question to Benjamin Page was evidently leading. It was easy to avoid the objection — Was any agreement made ? by whom ? at what time ? or What, if any, agreement did you make, and when ? Judgment on the verdict.