71 A. 379 | N.H. | 1908
The plaintiff and the defendants are adjoining owners of land. The location of the easterly line of the plaintiff's. lot and the westerly line of the defendants' right of way is in dispute. The plaintiff claims it is located some four to six feet east of the line where the defendants built a high fence in 1904, and the defendants claim that the high fence is on the true line. *117 The right of way was surveyed and laid out in 1847. Its westerly line as then surveyed is the plaintiff's true east line. There was evidence that in 1870 the defendants built a fence some six feet east of the one which they erected in 1904, that they were maintaining it at that place when the plaintiff purchased his lot in 1882; that they continued to do so down to 1888, when they double-tracked their road and put in a side track and two switches opposite the plaintiff's property, and that it was then broken down or buried in the process of raising the tracks and widening the road-bed.
In 1874, one Torpey was foreman in charge of the fences and tracks on the section which passes the plaintiff's land. He was then about sixty years of age and had been foreman for some five years. At that time he owned the premises now owned by the plaintiff, and in the presence of on Wessul, a witness for the plaintiff, stated that the fence (meaning the one put up in 1870) was the west line of the right of way. At the time of the trial Torpey was dead, and the plaintiff offered his declaration in evidence as that of a person who was familiar with things pertaining to the defendants' property and likely to know where the boundary line was, and as an admission; but upon the suggestion of the defendants' counsel, that the statement concerned the declarant's own land and that the Central Vermont Railroad was then operating the defendant's road as lessee, the court excluded the testimony until it should be shown that the party making the declaration had authority to make it.
It also appeared that for a series of years just before and after the plaintiff purchased his land, on Powers was foreman in charge of the fences and road-bed on this section, and at the time of trial was dead; and the plaintiff offered to show that before he purchased his land, Powers, when upon the premises of the defendants, pointed out to him the fence erected in 1870 as the west line of the right of way. This evidence was offered upon the ground that the declaration was that of a person having knowledge of the boundary, made while upon the property and in charge of it. It was excluded and the plaintiff excepted.
The defendants now contend that the evidence above referred to was properly excluded, and for the following reasons: (1) Because the declarations were offered solely as admissions, and could not be received as such for the reason that neither Torpey nor Powers was shown to be an agent of the defendants, and if they were, that it did not appear they possessed authority to bind the defendants; (2) because neither of them was shown to be an owner of land as to the boundaries of which their declarations related and were material evidence — that the declarations of deceased owners only were admissible. *118
But the first position, that the declarations were offered solely as admissions, cannot be sustained. It clearly appears that the offers were made upon two distinct grounds: (1) as declarations of deceased persons who presumably knew where the division line between the plaintiff's and defendants' property was, and (2) as admissions binding upon the defendants. As admissions, the plaintiff does not now contend but that they were properly excluded, and such is undoubtedly the law. Clough v. Company, ante, 84. But as declarations of deceased persons, he contends that both were admissible; that proof of ownership of land by the declarant is material only as bearing upon the question whether the person making the declaration presumably knew the location of the boundary in regard to which he undertook to speak and which was material to the issue; that such proof is but a species, of evidence bearing upon the question of knowledge, the want of which may be supplied by other evidence of equal weight; that as to Torpey, the defendants' counsel admitted at the trial that he was the owner of the land now owned by the plaintiff, from which it would follow that he presumably knew its bounds, independently of the proof that he was the person in charge of the defendants' road-bed and fences; and that as to Powers, proof of ownership was unnecessary, it appearing that he had for many years had charge as foreman of the defendants' road-bed and fences on their right of way past the plaintiff's premises, and therefore presumably knew its bounds.
In Adams v. Stanyan,
In 1847, a line of road known as the Bellows Falls branch, connecting with the main line of the defendants' road several hundred feet south of the plaintiff's premises and extending southwesterly across the Connecticut river to Bellows Falls, Vermont, was constructed. In 1881, stone bounds were set along the road on lines claimed by the defendants to be the center lines of the rights of way, as surveyed and laid out in 1847 and 1849. They were set 1,000 feet apart, beginning on the branch line at the northeasterly end of the bridge over the Connecticut river, thence in a northerly direction along that line to the main line, and thence on the main line several miles north of the plaintiff's premises. In support of their contention, and subject to the plaintiff's exception, the defendants called one Clark, who worked for them as a civil engineer in 1881 on these lines; and in reply to the question, "Did you set bounds — what did you do with reference to setting bounds along the line of the Sullivan County Railroad?" he answered: "I made a survey from what is now the iron bridge, along the track through what they call Chapin's switch, along up *120 by Dutchman's crossing, following the track up to Charlestown and ultimately continuing it to Windsor." The witness also testified that the center line of the new bridge is on the center line of the old one, and that the center line of the bridge is the center line of the track, except for a distance at the south end of the bridge, which is on a curve."
The materiality of this evidence is not apparent, and unless supplemented by other evidence it would seem that its only effect must have been to mislead and confuse the jury. It does not appear that the stone bounds were set along the line which the witness surveyed, or if they were, that the line he surveyed was the center line of the defendants' right of way on the branch laid out in 1849, or of the right of way on the main line as laid out in 1847; and while the tracks may have been so constructed that their center lines coincided with the center lines of the rights of way, the fact whether they were so constructed past the plaintiff's premises depends upon proof, of which, so far as this case discloses, there was none.
There was a curve in the original lay-out of the main line, known in the case as the 2.30 curve, and one of the questions in dispute was as to where it commenced. The plaintiff's evidence was that prior to the time he bought his land and when the road had but a single track, the curve began some distance south of the southeast corner of his land and at Elm street; and that later, when the double track was put in, it was changed and began further north and opposite the southeast corner. Upon this question the defendants called certain witnesses who qualified as civil engineers and were allowed to testify, subject to the plaintiff's exception, where in their judgment the point of curvature commenced, and also whether in their judgment the fence erected in 1904 was upon the true line between the plaintiff's land and the defendants' right of way. This was error. The location of the true line between the parties and the place where the curvature began were not subjects in regard to which the opinions of engineers could be given in evidence. Although an engineer's knowledge gained from study and experience in his profession, taken in connection with the data furnished by the plan of 1847, would aid him in making a resurvey of the defendants' right of way and in ascertaining the location of its west boundary, nevertheless it is difficult to see why a jury may not be capable of judging whether the bound thus located is the true bound, without the aid of the opinion of the engineer upon the question, the data and details of the resurvey having been laid before them. And what is true of the location of the west boundary is true of the point of the commencement of the curve. *121
In Leighton v. Sargent,
The finding of fact in the superior court, that the subject-matter in regard to which the engineers were allowed to give their opinions as experts was such as to make expert testimony admissible, is unimportant. Whether a given subject is one concerning which an expert may express an opinion is a question of law. Jones v. Tucker,
Prior to 1904, one Williams made a survey of the railroad in front of the plaintiff's land and embodied his work in a plan. The introduction of a copy of this plan, against the plaintiff's objection and without showing that the original could not be produced, was error.
The testimony of Tidd, that in 1890 or '91 he set out an elm tree twenty-one feet west of the fence posts on the line between his land and the defendants' west line of their right of way, was properly received as tending to show where the old fence was located.
It is not deemed necessary to consider the other questions in the case, as they are not likely to arise at another trial.
Exceptions sustained: verdict set aside.
All concurred. *122