Adams v. Stanyan, 24 N.H. 405

Adams v. Stanyan

24 N.H. 405 | Superior Court of New Hampshire | 1852

Eastman, J.

No objection was taken at the trial, to the introduction of the copies of the plans of Chichester and Pembroke, on the ground of their being copies and not originals. If there had been, and the court had deemed the exception valid, the originals could have readily been produced, the office of the Secretary of State being near the place of trial. The question, then, which we are to consider, is, were the original plans competent evidence to be used in the case.

The case finds that the principal controversy between the parties related to the true line between the towns, and the maps were introduced as tending to show where that line was. Both parties were bounded by the line between Pembroke and Chichester, and when that was correctly ascertained, the controversy between them would be decided. Were the plans competent evidence tending to show the true line between the towns ?

Traditionary reputation in matters of public and general interest, whether the same be oral or documentary, has, as a general rule, been received by courts as competent evidence of the matters to which it relates. Courts have differed as to the weight that should be given to it, but its competency has been very generally admitted. This rule has been held to apply to maps showing the boundaries of towns and parishes, if it appears that they were made by persons having the adequate knowledge. 1 Greenl. Ev. § 139, and cases there cited. And surveys and plans, made in pursuance of acts of Congress and the authority of State legislatures, have also been held to be competent evidence of whatever is contained within their boundaries. Eberle v. Board, &c., of St. Louis Public Schools, 11 Missouri Rep. 247; May v. Baskins, 12 Sm. & Marshall’s Rep. 428; Denn v. Pond, Coxe’s Rep. 379; Dubois v. Newman, 4 Wash. C. C. Rep. 74; *412Sproul v. Plumstead, 4 Binney’s Rep. 189; Hewes v. McDowell, 1 Dallas 5; Doe dem. Taylor v. Roe, 1 Hawks’ Rep. 116.

These plans or maps were made by the authority of the State, by virtue of the act of December 30th, 1803. The first section of the act is as follows :

“ It shall be the duty of the several towns within this State to cause an accurate survey of the same to be made, and transmit a map thereof to the Secretary of State, on or before the first Wednesday of November, 1805, containing the exact limits of said towns by careful admeasurement, together with a description of all the public roads passing through the same; also, the rivers, falls, and principal streams, ponds, lakes and mountains, and the names of adjoining towns, with the extent said towns adjoin on their own towns; the whole to be protracted by a scale of two hundred rods to an inch on a horizontal line; and all disputed lines shall be distinctly marked.”

The second section of the act provides for the manner in which the expense of the surveys and maps shall be met. And the third section enacts as follows :

“ That if any town within the State shall neglect to make a survey of the same, according to the directions of this act, or to return a map thereof to the Secretary of this State by the said first Wednesday of November, 1805, such town shall forfeit and pay the sum of one hundred and fifty dollars, to be recovered by an extent from the treasurer for the use of the State.” Laws of N. H., (Ed. of 1805,) p. 207.

At the time these maps were made, under the provisions of this act of the legislature, there could have been no dispute in regard to the line between these towns; if so, the maps would have shown it. There was at that time no interest to have them incorrect, and there is no suggestion or reason to suppose they were so. Neither is there any doubt that they were filed in the secretary’s office within the time fixed by law, since, had they not been, the towns would have incurred the forfeiture prescribed by the act. They may therefore be denominated ancient maps, according to the legal acceptation of the term ancient, when *413applied to instruments more than thirty years of age. They have also become a part of the doings and records of the State, being found in the proper place of deposit, and where the act required them to be — in the archives of the secretary’s office; and upon general principles governing evidence of this nature, we think they were properly admitted to go to the jury.

The case of Smith v. Strong, 14 Pick. Rep. 128, which the counsel for the defendant cites as having a direct and decided bearing upon this question, would seem at first reading, perhaps, to be in conflict with the views above expressed; but upon a careful examination of the case, it will be found, we think, not to be so. In that case, a copy of a plan made in pursuance of a resolution of the State of New York was introduced, in connection with, and as a part of the deposition of the surveyor who made the plan; and it was held admissible. It is true that the learned judge, in delivering the opinion of the court, says, that if the copy had not been thus verified, it would clearly have been incompetent; and so would the original also. But it will be observed that this plan was not made under the laws of Massachusetts, embracing her political divisions, and made for the public interest, but a plan from a neighboring State of a tract of land called the Boston Purchase. It is not intimated in the opinion that the original plan would not have been good in the courts of New York without such verification ; and we hardly think that the court could have intended to be understood to hold that a public map, made under the laws of Massachusetts, embracing her political divisions, like those used in this case, could not be evidence without being accompanied by the testimony of the surveyor who made it. If so, many maps and plans, where the surveyors have deceased, must be excluded.

The certificate upon the plan of Pembroke, signed by Noyes, the surveyor, was a mere filing upon the plan, and cannot, we think, be exceptionable. It neither added to or detracted from the map itself, for that purported to be accurate, and to be made by the authority of the legislature.

The next exception which Í3 presented in the case, relates to *414the competency of the evidence showing the perambulations. The first evidence upon this point was the report of the committee to whom the subject of the line between the towns had been referred by an agreement of the selectmen of both towns. If this action of the selectmen and committee can be held to be a perambulation, then the evidence was competent. The authority of Lawrence v. Haynes & al., 5 N. H. Rep. 33, and the practice under that decision settles the matter. It was held in that case that perambulations are evidence in a controversy between individuals whose lots are bounded by the town lines. In the course of the opinion, Richardson, C. J., says: “A single perambulation is evidence. When a particular line has often been perambulated, and the bounds renewed and recognized by the selectmen of both towns, it is strong evidence of its being the true line.” And again: “ The evidence resulting from the perambulation of the lines between towns is of the same nature as the evidence which results from the acts of the owners of adjoining lands, when they perambulate the lines between their lands, and by agreement renew the marks and monuments.” “ It can hardly admit of a question that these perambulations are evidence in a controversy between towns as to the lines between them. But are they evidence in a suit between individuals ? We think that they are. The declarations of deceased persons, who had no interest to misrepresent, are evidence of boundaries between the lands of individuals. And it seems to us that these perambulations which are made by men who must be considered as public officers, and are made for public purposes, are entitled to a degree of credit which the declarations of deceased persons can, under no circumstances, claim.”

But can the action of the selectmen and committee in 1819 be regarded as a perambulation ? We think it may be. By the act of February 8th, 1791, which was in force at that time, it is provided that the lines between towns shall be perambulated, and the marks and bounds renewed within two years from the passing of the act, and once every seven years forever after, by the selectmen of each town, or by such person or persons as they *415shall, in writing, appoint for that purpose; and their proceedings shall be recorded in their respective town books. The act makes further provisions as to the manner of proceeding, which it is unnecessary to quote. Laws of N. H., Ed. 1805, p. 195.

The selectmen of each town could act for themselves, or they could appoint a person or persons to act for them. There is no provision prohibiting each board from appointing the same persons, if they see fit, and so far as it occurs to us, there is no impropriety in it. There is no suggestion made that the individuals selected in this case were not duly appointed in writing, or that their proceedings, after the appointment was made, were not in all respects according to the provisions of the statute. The fact that they were called a committee, or that the matter might at the time be viewed by some in the light of a reference, does not impair the force of their doings, or change their character and effect. If they were duly appointed according to the statute, and followed its provisions in their proceedings, it can make no difference what they were called. Where there is a dispute in regard to a line, and the selectmen of the towns agree upon and appoint individuals to act for them, and they perambulate the line according to the statute, it is in one sense a reference of the dispute, while at the same time it is appointing the individuals to act for the selectmen in perambulating and establishing the line according to the statute. And such, we think, must have been the understanding and intent of the selectmen in these towns, there being no law sanctioning any other course.

The other perambulations are clearly admissible upon the authority of Lawrence v. Haynes. The fact that they were made upon the line established by the committee, does not impair their validity. They were perambulations, even though we had held the action of the committee invalid; and it was the duty of the selectmen to renew the marks and bounds of that line, if they believed it to be the correct one. The perambulation made in 1847, so long after the transactions of 1819, tends strongly to show the correctness of the line.

The exception taken to the admissibility of the records of the *416proprietors of Bow, must also be overruled. Counsel have stated that the records were of the date of 1728. This is not contradicted ; and they may, therefore, well be denominated ancient. They were not objected to upon the ground that corporation books, duly kept and authenticated, are not, in general, evidence of what they purport to record. That doctrine is conceded in the argument; but they are excepted to specially, because it did not appear that there was any notification or call for the meeting at which the proceedings in question took place, or that it was duly holden, and because the records did not appear to be attested by any clerk or recording officer.

The proprietors were a corporation. Colburn v. Ellenwood, 4 N. H. Rep. 99; Atkinson v. Bemis, 11 N. H. Rep. 44. And the records came from the proper depository, under the oath of the town clerk by whom they were produced; and after such a lapse of time a jury might presume that due notice was given of the meeting, and also that it was regularly held. Society for Prop. the Gospel v. Young, 2 N. H. Rep. 810; Cobleigh v. Young, 15 N. H. Rep. 493; Peterborough v. Lancaster, 14 N. H. Rep. 382; Tolman v. Emerson, 4 Pick. Rep. 160; Pitts v. Temple, 2 Mass. Rep. 538.

The fact that they were not attested by any clerk would be a circumstance detracting, perhaps, from their weight, but being of such a remote date, and no suspicious circumstances attending their deposit and production, the want of attestation may be presumed to proceed from the carelessness of the clerk, and should not render them incompetent, as the clerk is dead. In Sumner v. Sebec, 3 Greenl. Rep. 223, it was held that a book found in the hands of the town clerk, and purporting to be a record of births and marriages in the town, is primé facie evidence of the facts it contains, though it may have no title or certificate, or other attestation of its character.

The question of the admissibility of ancient maps and records to show boundaries, was somewhat discussed in Gibson v. Poor, 1 Foster’s Rep. 440.

The remaining question raised by the case is not alluded to in *417the argument, and we presume, therefore, is abandoned. We are aware that the rule held upon the trial in this case is contrary to the English doctrine, and contrary, also, to that which prevails in the courts of some of our States. With us, however, although doubts have sometimes been entertained in regard to it, the question is not an open one. The declarations of deceased persons who were so situated as to have the means of knowledge, and had no interest to misrepresent, are competent evidence upon a question of boundary, whether the same pertain to public tracts or private rights. Shepard v. Thompson, 4 N. H. Rep. 213; Lawrence v. Haynes, 5 N. H. Rep. 37; Gibson v. Poor, 1 Foster’s Rep. 444, and cases there cited.

Judgment on the verdict.