66 Vt. 535 | Vt. | 1894
The plaintiff and defendant owned adjoining premises situated on the west side of Railroad street in the village of St. Johnsbury, extending westerly from that street about sixteen rods to Pearl street, which is nearly parallel to Railroad street, both streets running substantially north and south. The defendant’s premises are next south of the plaintiff’s, and the controversy related to the division line between them. It was conceded that a certain mark in the stone curbing on the west side of Railroad street was the true boundary at that point, and that the division line between the parties’ lands ran westerly from this point at right angles with Railroad street. The plaintiff claimed that the true line was a stráight line from that point to a certain stake on Pearl street, while the defendant claimed that it was a straight line from the same starting point to a certain stone on Pearl street twenty-two inches further north. The plain
The locality of the fence was in dispute, each party insisting that it was upon the line claimed by him. The plaintiff claimed that it ran south of the elm tree now standing, while the defendant claimed that another elm tree had stood a little further north than the present one, but had been removed, and that the fence had run south of that and north of the present one. Guyer, a witness for the plaintiff, testified to the locality of the fence from having seen it when he was building a wall in 1877 on the east side of Pearl street up to a point in the line in controversy. On cross examination the defendant offered to show that at the time about which the witness had testified Lawrence & Wood used a derrick, and that a guy came off from it and was fastened to a certain elm, which the defendant claimed was the one that had been removed.
The trial court excluded the testimony on the ground that it was not proper cross-examination, and said to the counsel, “You may show that when your time comes.” It is alleged that in this ruling there was error. If the testimony offered related to the matter inquired about in the examination in chief, it was legitimate cross examination. If it was new matter, not growing out of the direct examination, then it was matter of defence and the court might, in its discretion, require the defendant to defer it until the evidence in defence was produced.
The rule in the federal and in many of the state courts is that a party has not a right to cross examine a witness except as to facts and circumstances connected with the matters- stated in his examination-in chief';: and that if he wishes to examine- the witness in respect to other matters he must do so by making the witness his own and calling
The length of cross-examination upon a given subject is always within the control of the court, but when a witness has been examined in chief the other party has a right to cross examine him. 1 Greenl. Ev. s. 445. There was error in the ruling, and the error was not cured by the permission to the defendant to put in the offered evidence as a part of the defence, for it was the right of ¡the defendant to have the chief and cross examinations pladed in direct contrast before the jury.
The piece of land in controversy was twenty-two inches wide at the east side of Pearl street, and ran to the conceded point on the west side of Railroad street. The jury found by a special verdict that the plaintiff had acquired title to the land by adverse possession. Was this finding decisive of the case? The plaintiff did not claim to have occupied adversely or otherwise further south than the line ir.dicated by the fence. The case does not show that he made any claim to the land irrespective of the fence. He claimed that the fence had stood on the south side of the land, and that he had occupied to it, and the defendant claimed that it had
The plaintiff contends that a line run from the conceded point on Railroad street at right angles with the street is the true line between the lots, and that other evidence than that obtained from the compass is immaterial. In the deed from Lawrence to Alden, dated August 18, 1855, of the eastern half of the plaintiff’s present lot, the west line of Railroad street is north 21 degrees east, and the side lines of the lot are north 70 degrees west, and the lot is described as five rods wide. Upon the concession that the true line was one projected from the conceded point at right angles with the street, there is difficulty in ascertaining that line at the present time. It is common knowledge among surveyors that in ascertaining the locality of an old line an allowance must be made for the variation of the magnetic needle, and that that allowance is not a matter of exact computation. The variation is different in different localities. In running this, line from the conceded point the parties came out twenty-two inches apart on Pearl street; hence both relied upon the fence as indicating the true division line.
The real question, therefore, was in respect to the locality of the fence. On this' question the-defendant offered evidence tending to show the locality of the southwest corner of his lot and his entire south line; also evidence tending to show that a fence that stood on the north side of the plaintiff’s lot was an established monument, and that measuring from that to the plaintiff’s south line, as claimed by. the defendant, the plaintiff had the five rods in width to which the deeds entitled him-..
All the lines of the plaintiffs lot were made by one survey and had-reference to each, other. The north-line was not a
Judgment reversed and cause remanded.