Whitehouse v. Bickford

29 N.H. 471 | Superior Court of New Hampshire | 1854

Woods, X

The facts found and reported in the case leave nothing for determination but the locality of the true line between the towns of Tuftonborough and Ossipee. That question, when determined, will fully settle the rights <of these parties. And that fact is found, to a very considerable extent, by the case. The true line dividing those towns runs from a corner of the town of Wolfborough to a corner of the town of Moultonborough. Its true locality is found, and not in dispute, for a considerable distance from the corner of Wolfborough, which is found to be a straight line in the direction of the corner of Moultonborough. And also a straight line, commencing at the corner of Moultonborough, and running for some distance in the direction of the corner of Wolfborough, which would, if extended in the same direction, meet the terminus of the true line as found running from the corner of Wolfborough, is found to be the true locality of the line between the towns thus far. The locality of the portion of the line of the towns of Tuftonborough and Ossipee, that lies between the termini of the two straight lines thus described, is alone in dispute. In fact, the real dispute is still more limited, and necessarily extends only to the “ diverging line,” mentioned in the case, which extends from the. terminus"of the straight, undisputed line, commencing at the corner of Wolfborough and running towards the Moultonborough part of the undisputed line. That diverging line extends beyond the land in controversy, and, therefore, the locality of the residue of the line, between Tuftonborough aiftd Ossipee, which is not found by the case, as it does not in Any way form the boundary between the lands in dispute, ¡becomes immaterial in determining the present controversy, excepting so far as the want of evidence of that fact may bear as a matter of evidence upon the question of the true Wne forming the true boundary between the premises of tjlese parties. The case finds that there was evidence off the fact of the existence of such a diverging line, and oil its extension beyond the locus in quo, and that it was the line that was run and established between the two towns by the original proprietors. This portion of the line was marked by monuments, as were the two undisputed portions. This case, then,, is to be taken as showing a line agreed upon by the adjoining owners, namely, the original proprietors, (Enfield v. Day, 7 N. H. Rep. 457,) as the boundary line diverging their possessions, and marked by monuments so far as the diverging line extended. And the question arising upon this blanch of the case is, whether that evidence and agreement is so far controlled by the fact that the diverging line, if extended in a straight line, would not strike the terminus of the Moultonborough part of the undisputed line, as to render it incompetent for the jufy to find by their verdict that the diverging line is the true line, so far as it extends between the two towns, and is thus agreed upon and marked. It is difficult to see upon what principle this position is to be maintained. Here was, at most, as we conceive, to be drawn from the fact relied upon by the defendant, an inference against the probability that the diverging line was the true line. Doubtless, if the line thus marked, instead of diverging from a straight line, had been found to be leading off in a straight line between the termini of the two\undisputed portions of the line, that fact would have strengthened the evidence and increased the probability that it Vas the true line. That would be the extent of the weight '^>f that fact, in a case like the present. But that mere faclt would not be conclusive nor controlling, as against the fact {otherwise satisfactorily proved. But the question is still, whether a fact that may be regarded as tending to show tnlat the line claimed is not the true line can be regarded as controlling the agreement of parties at the time, competent tcP agree as to the divisional line between their adjoining la!«3s. We regard this as being so far from the correct rSle upon this subject, that it is entirely the reverse of it. In\fact, in this State the parol agreements of the adjoining owW Hands, fairly entered into in reference to the divisional lines between them, accompanied by the erection of monuments and the occupation of the parties in conformity therewith, have been allowed to have the effect to conclude them as matter of evidence as to the extent of their respective rights. Such agreements furnish conclusive proof of the accuracy of the line thus established. Sawyer v. Fellows, 6 N. H. Rep. 107; Gray v. Berry, 9 N. H. Rep. 473; Prescott v. Hawkins, 12 N. H. Rep. 19; Carleton v. Redington, 1 Foster’s Rep. 291. A similar doctrine prevails in other jurisdictions. Ebert v. Woods, 1 Binney 215; Clark v. Whitney, 19 Wend. 320; Rockwell v. Adams, 16 Wend. 285. It is entirely clear, then, that this state of the proof cannot be controlled by the mere fact that the diverging line, if extended, would not meet the terminus of the Moultonborough part of the undisputed line. It would not be controlled by evidence even showing satisfactorily that the diverging line was not, in fact, the true original line. In the present state of the case, that evidence would be wholly inadmissible for such a purpose.

• The omission of the judge to instruct the jury in the manner requested by the defendant, was justified by the state of the evidence, and the verdict cannot be set aside for that cause.

A further question arises in the case, as to the plan that was given in evidence upon the trial. No particular ground of exception is stated in the case. Without stopping to inquire whether, for that cause, it might not well be regarded as waived, (being one which might have been obviated, if stated at the trial, McConihe v. Sawyer, 12 N. H. Rep. 396,) we shall proceed to determine the principal question, which, as we understand it, arises upon the case. The objection relied upon, as we suppose, relates to the proof of its authenticity or of its genuineness as a plan, and not to its competency as proof relative to the question of boundary between the parties.

Was its genuineness so made out in proof as to entitle it to be given in evidence ?

The fact was shown that the plan was found in the custody of J. W. Pierce, and that he was at the time the acting clerk of the Masonian Proprietors, having the custody of their records, and that it was delivered by him, at his office in Portsmouth, in this State, as an original plan and as a part of the proprietary records, and the witness of these facts produced the plan in court. It purported, upon its face, to be an ancient plan, bearing date 1781, and purporting to be signed by James Hersey, surveyor. It was accompanied by a certificate attached to the plan, signed by Pierce, which also showed that it had been, in point of fact, in his custody, and came from his possession. Now here is ample evidence that the plan, was found in the proper custody. It was found where it might be expected to be found. It was found in the proper custodia of the records of the corporation. A corporation can only keep its records and papers in the custody of its agents. Here, then, the plan in question was found along with the other muniments and evidences of the title of the corporation, and in the hands of its proper agents. Upon this state of fact, it is well .settled that the genuineness of the plan was sufficiently proved to entitle it to go to the jury as evidence of such facts as it was competent to prove. 1 Greenl. Ev. 166, 167, 534; Jackson v. Laguere, 5 Cow. 225, 226. This case came up for consideration in the case of Gibson v. Poor, 1 Foster’s Rep. 440-445, where the reasons for the rule of evidence are stated much at large, and need not here be repeated. -

We see no ground for doubt as to the propriety of the ruling, admitting the copy from the records of the Masonian Proprietors. The copy is. certified by the acting clerk, who is shown to be such, and that is sufficient. Atkinson v. Bemis, 11 N. H. Rep. 44; Woods v. Banks, 14 N. H. Rep. 101. And, moreover, it was shown by a witness to have been compared by him with the original record, and to be a true copy. And it is well settled that where the proof is by a copy, an examined copy, duly made and sworn to, is always admissible. 1 Greenl. Ev. 534. The objection here is not taken that the copy offered was an extract, and not the entire record. And there is nothing to show that it is not a full record of the entire matter which it embraces or to which it relates. “ Copies of so much of the record as relates to the subject-matter of the suit are allowed.” It would be idle to require more. Nothing more can be necessary to enable the court and jury to determine and to give a right construction to what is done. Woods v. Banks, 14 N. H. Rep. 101. The copy of the record introduced, purported to contain a record of the vote of the proprietors, holden at Portsmouth, August 17, 1775, relative to the line between the towns of Tuftonborough and Ossipee, run by James Hersey, from the corner of Wolfborough to Moultonborough corner, as the northerly line of Tuftonborough. This was the only matter material embraced in the controversy. And it is not made in any way to appear that any thing further was transacted on that occasion, or that this was not the whole record, made up of the doings of the proprietors at that time. And that is sufficient. Banks v. Woods, before cited. Moreover, we think this last ground of exception cannot prevail, for another reason. It was plainly of such a character that it could have been readily obviated if it had existed, and had been specifically pointed out at the trial. If it had been objected, in terms, that the copy produced was only a copy of a part of the proceedings had, and recorded at the date of said meeting, it is apparent that the deficiency could easily have been supplied. By the practice of the court, the objection, if it appeared, and it were insisted upon, that the copy produced in evidence was only a part of the record, it must be considered as waived. McConihe v. Sawyer, before cited.

Judgment on the verdict.