Knight v. Coleman

Wilcox, J. We think that the instructions were sufficiently favorable to the plaintiff. If the fence had been maintained for twenty years in the same place, the plaintiff [120] all the time claiming to own to the fence, that would make an absolute title by adverse possession. But the case does not so find. It is stated that the fence had been kept up for a long series of years nearly in the same place, but not permanent and stationary. Now there is no legal presumption from this in favor of the plaintiff’s title. It is only evidence to be submitted to the jury. The case states that the locus in quo would fall either upon the plaintiff’s or defendant’s farm, as this line should or should not be found to be the true one. The location of the fence would then only be evidence of an agreement and acquiescence of the parties in that line as the true line, unless the plaintiff showed a continued and exclusive adverse possession for twenty years, which does not appear. It is farther objected to the verdict that certain depositions, on the part of the defendant, were permitted to go the jury, parts of which had been underscored by the defendant’s counsel to attract the attention of the jury as being of peculiar importance. And we think that for this cause the verdict must be set aside. If one kind of mark may be put upon a deposition, it will soon be claimed that others may be added, designating the greater or less importance of different parts of the deposition, or to distinguish what is true from what is false. If one party underscores, so may the other. If a deposition may be marked for one purpose, it may for others also ; and it is impossible to foresee what sort of marks and hieroglyphics, and with what significations ingenious men may be disposed to employ. It is important to have a rule upon this subject, and we know of none so proper or so convenient as that the depositions shall go to the jury, if they go at all, as they come from the hands of the magistrate. There may have been a practice to mark depositions as was done in this case ; but if so, it has passed sub silentio and without objection ; and, perhaps, no particular evil has resulted from it. Yet now that the objection is specifically [121] taken, and we are required to act upon the subject, we hesitate to say that any mark may be put upon a deposition as a medium of communication in any respect between counsel and the jury. Counsel may as properly write upon a deposition their whole comments upon that portion of the testimony at length, as to put upon it any part of their comments, in short hand or by marks. New trial granted.