Ackley v. Buck

| Vt. | Jul 15, 1846

The opinion of the court was delivered by

Redfield, J.

It is not easy to perceive that the witness, Benoni Buck, had .any interest in the suit. It is not uncommon to deliver a release to a witness, when there is doubt in regard to his interest; and that .was done in this case. But it is not stated in what manner this witness and the heirs, under whom the plaintiff claims, divided their land. If it was done by quitclaim deed, each must risk his title to his own share. If it was done by parol, it is not shown by the case, that the plaintiff would not still have a full moiety, if he failed in this suit; but it seems to be conceded that he would not. Whether he could then claim a new division is very questionable. But if he could, his release to the witness and his assigns will effectually estop him from claiming any more land of them. He has also released all claim for damages of the witness, or his assigns; and he cannot be permitted to do that indirectly, which, by his own act, he has estopped himself from doing directly. A court of chancery would, we think, without doubt, enjoin him from so doing.

The charge of the court was undoubtedly correct. It was simply, that, if Benoni Buck, as the agent of John L. Buck, who then owned the plaintiff’s land, and the defendant fixed upon a dividing line, and so designated it, as to make it “ clear and distinct,” and that was acquiesced in by the adjoining owners for more than fifteen years, it will bind them. Of the truth of this proposition there can be no doubt; and it is evident, that this must have been the meaning of the charge.

But in regard to the evidence we have had more difficulty. An agreement upon a line by Benoni Buck would not bind John L. Buck, nor would it affect him, unless brought to his knowledge. But he went there, by the employment of John L. Buck, to make a dividing fence between his land and that of the defendant; of course he must ascertain where the line was. This he did, and built a fence beginning and ending at the ends of this line, and as near the line as he conveniently could. This was more than fifteen years before the commencement of this action, and the fence thus made has remained until the present time.

The degree of force, to be attached to such evidence, will depend very much upon how near the line, thus made, approached to a straight line. It might be very conclusive evidence to establish acquiescence in a line, or it might be very slight; but it could hardly be said, that it had no tendency to show that the adjoining proprietors had acquiesced in a line, when they had used that fence to divide their lands for more than fifteen years. The testimony was very strong against the defendant; for he had agreed upon this line; he built a fence as near to it as he could; and, where the fence deviated from the line, it went still farther upon his land, but began and terminated in the line, or near it; and, as the line was favorable to the plaintiff, a jury would require less testimony to convince them of his acquiescence.

If this testimony had been rejected, it would have been impossible to say, that it had no tendency to show acquiescence ; and if it had such tendency, the question as to its effect was properly submitted to the jury.

Judgment affirmed.