49 N.H. 230 | N.H. | 1870
The original action of trespass, quare clausum, was
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
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
Judgment on the verdict.