Smith v. Forrest

Nesmith, J. The original action of trespass, quare clausum, was [236] commenced by the father of the plaintiff, Jeremiah Smith, now deceased, and the dispute between the parties involves the inquiry as to the true location of their divisional line, running north and south, separating the defendant’s fifty acres from the remainder of lot No. 24 in Northfield, which remainder the plaintiff claims to own. It appears that plaintiff claims to hold and occupy to a divisional line some six rods west of the line insisted upon by the defendant; and this strip of land, six rods in width, is the chief matter in controversy in this case. 1 The case finds that several witnesses, who had known the line claimed to by defendant for several years, and who had known of no other dividing line until recently, were inquired of by defendant, subject to plaintiff’s exception, whether they had ever known or heard of any controversy concerning this line, or these bounds, until this dispute arose. The witnesses answ'ered in the negative. This kind of testimony is of course not conclusive, and liable always to be controlled by evidence of a higher nature ; still it is regarded competent in controversies of this nature. In Fellows v. Fellows, 37 N. H., 78, Bell, J., says, there seems to be no valid objection to the testimony of the neighbors, as to the absence of averse claims. Any circumstances tending to show that the possession was held by the permission or acquiescence of others would weigh heavily against the occupant. The absence of such circumstances ought surely to weigh in his favor. Evidence that no claim of title has been set up, or made for a number of years together, by a claimant to land, is competent, as bearing on the question of acquiescence or ownership in the several claimants. See other authorities quoted by defendant’s counsel. The exception to this evidence cannot prevail. 2. Gardner S. Abbott was also a witness in behalf of the defendant. He was the grandson of Elias Abbott, to whom a seventeen acre lot, being part of lot No. 24, was conveyed by Jeremiah Smith, the owner and plaintiff’s ancestor in the year 1817. Subject to plaintiff’s exception, said Gardner testified that his grandfather, while owner of said seventeen acre tract, and sometime prior to. the year 1830, pointed out to the witness on the ground the bounds of said seventeen acre piece, especially the north-west corner, and the south corner of his land, which were both coincident with the line as now claimed by the defendant. Said Elias has since deceased. At the time this evidence was furnished to the witness, said Elias was the owner and occupant of the land, and must have had the means of becoming acquainted with the facts as testified to by the witness. The general presumption and fair legal intendment are, that any man knows the situation of his real property, both as to its boundaries and possession. * Morse v. Emery, Merrimack county, 1866, not reported ; Hassanfiats v. Kelley, 13 John. 468 ; Etheridge v. Cromwell, 8 Wend. 635. Then such testimony is competent on the other ground, that the declarations of deceased owners and occupants are admissible as to the boundaries of their lands, where it appears from their situation that they had the means of knowledge, and no interest [237] to misrepresent, and when such declarations were in disparagement of their title. Smith v. Powers, 15 N. H. 546 ; Adams v. Stanyan, 24 N. H. 405; Morrill v. Foster, 33 N. H. 388. It evidently would have been the interest of Abbott, while owner, to have claimed as much of lot No. 24 as the plaintiff now claims, and he would have been the gainer if he could have rightfully extended his line as far as plaintiff claims his line should extend, but he evidently limited his possession directly against his interest to the line as claimed by defendant now. The declarations of said Elias are, therefore, to be received as in disparagement of his then existing title, and, therefore, binding the plaintiff as his privy in estate. 1 Green. Ev. § 189 ; Daggett v. Shaw, 5 Met. 223 ; Currier v. Gale, 14 Gray 506 ; Morrill & als. v. Titcomb & als., 8 Allen 100. 3. The witness, Gardner S. Abbott, also stated, subject to plaintiff’s exception, that his father, whose name was also Elias, sometime in the year 1861, told him that he, the father, and Jeremiah Smith, the plaintiff’s intestate, and the original plaintiff in this suit, were present, when the bound at the south-west corner of the said seventeen acre tract of land was established. But when this declaration was made, the witness said that he and his father wore not at the bound or on the land. They were talking about the chestnut stake bound,- being the same one now in the line, to which the defendant claims. The said Elias died in 1862. The word establish is objected to by plaintiff as being an indefinite term. The ordinary meaning of the word is to settle certainly, or fix permanently, what was before uncertain, doubtful or disputed. The declaration is also objected to as having been made to the witness, when the parties were not ou the land. As already shown, the witness, (Gardner S. Abbott,) had ample opportunity to become familiar with the bounds of the seventeen acre tract of land. His father Elias, as well as his grand lather had for along time been owners, and occupants thereof and knew the bounds thereof. The plaintiff’s counsel in his argument, in commenting upon the leading case in this state, where it was first decided that hearsay testimony of this kind should be extended in its application to private as well as to public rights meaning the case, Shepard v. Thompson, 4 N. H. 213, states correctly our rule, that two things are necessary in order to make the declarations of deceased person competent evidence as to boundaries. 1st. It must appear that the deceased party, or declarant had knowledge. 2d. He must have no interest to misrepresent. In the trial of cases, where this kind of testimony is resorted to, the aforesaid guiding principles should exist and govern the court and jury. It is a general presumption that owners of land know their boundaries, but sometimes they do not, and when they are ignorant of them, of course their statements in relation to them, whether made on, or off their land are of but little or no consequence, but when such boundaries are clearly known, or established by those in interest, then they [238] generally can communicate accurate knowledge, whether their statements be made at the boundary, or at a distance from it. It will be for tbe court and jury to determine the weight to be attached to evidence of this nature, or whether the parties have the means of knowledge, or have in any way been misled, or whether they had any motives to misrepresent by a statement too favorable to their own pecuniary interests. It seems to us, that because the statements representing the south-west boundary of the seventeen acre tract was made, by the father to the son, when not at the bound, or off tbe land, forms no solid objection to tbe admissibility of such testimony. In the case Powers v. Silsby, & a., 41 Vt. 289 ; the court say, if the relation of the deceased person, who made the declaration was such, either in respect to the line, or monument in question, that it might be fairly inferred, that he had a clear knowledge of them, and that he was not led by his interest to misrepresent in regard to them, and by his declaration he did so point them out, as to distinctly indicate to the mind of the witness, the line or monument be referred -to, we are unable to understand why the evidence was not admissible. In the case before us, it is quite apparent, that the minds of both father and son met at precisely the same bounds, and that their statements communicated to the jury, were fonnded on an accurate knowledge of its character and locality. As already suggested, the evidence tends to show that the location of the bound-, where the father states it was established, was in disparagement of the declarants title, therefore it conveys or implies no purpose to misrepresent. Had the father been alive, he could have been a witness in this case, and his testimony going to show how the original plaintiff and himself had established and put down the chestnut stake, at the south-west corner of the seventeen acre piece, and in a line as claimed to by the defendant, must have been received as an important admission against the .plaintiff’s present claim to carry Ms line farther west. Witnesses frequently use language, signifying- results and conclusions, without stopping- to explain in detail the different steps by which they are enabled to state or reach such conclusions. The witness was permitted to state, that the corner before alluded to, was established in tbe presence of the parties, or owners interested to have a corner. The greet fact impressed on the witness’ mind by his deceased -father, was stated in the presence of the jury. * Giving the ordinary natural meaning to the word establish, the language of the witness, would he understood by'thó jury. The plaintiff in argument objects that the witness did not state the precise mode, or manner by which the corner was established. He did not state that the chestnut stake, was for the first time driven down into the ground, or that it was there before, and -for the first time then vms fully as sented to as the future corner of the seventeen acre piece of land. It m ay [239] have been there for many years, and may have received for the first time, the open, willing assent of the original plaintiff, or the fact may have been that the stake was then and there placed in the ground, recognized or established for the first time, as a corner to their lands. In any view, we can take of the testimony, the defendant makes out an important fact for his case, and if doubts still rested over this point, it was for the plaintiff to have insisted at the trial upon more light, or a more full explanation of all the circumstances, attending this part of the case. It seems to us, it is now too late for him to complain of his own negligence in not eliciting from the witness all possible information he possessed; we cannot set aside this verdict, and thereby give a reward to the sin of omission, of which the plaintiff appears to have been guilty. It seems to us that the testimony on this point was admissible from necessity, as the best the case admits of, upon similar ground, that the declarations of deceased persons are received as testimony, ancient plans of lots, showing the original lotting and boundaries assigned, also ancient minutes of surveyors, which were made by capable independent surveyors, having no interest to misrepresent, and which have been preserved, and are produced from reliable sources, may likewise be used on trial, when the boundaries of lots to which said surveys refer come in question. The authorities ou this point are collected in * Morse v. Emery, Mer. County, not yet reported. Judgment on the verdict.