| Superior Court of New Hampshire | Dec 15, 1838
The case finds that the plaintiff and defendants own land adjoining to each other, and the matter in controversy is as to the true location of the dividing line between them.
The plaintiff claims title from one Hannah Brown, and the defendants’ land is described in a deed from Lovewell to Smith, executed in 1786, under whom the defendants claim, as “ running from a certain monument southerly by land of said Hannah Brown to land of one Searles.” The deed gives no bearing, or other description of the line betwixt the two lots. The location of the line is left to be determined entirely by extrinsic testimony.
To show how this line was understood to be at the time of the conveyance referred to, an ancient plan is offered in evidence, which appears to have been long kept with the de
The rule laid down upon this subject by Starkie is, that “ maps and surveys of estates are evidence, when they appear to have been made with the privity and consent of the owner of the adjoining lands; but it is clear that no entry or survey, taken by one owner, would be evidence for himself, or one claiming under him, against a party not claiming in privity — since it might encourage others to claim more than belonged to them.” 1 Stark. Ev. 326.
All that is contended as to this plan may well be conceded —That it was first drafted in 1784, by a witness of the deed from Lovewell to Smith — was an actual survey of the land at that time, and that the deed was designed to convey the land in conformity to it. But, after conceding thus much, it may have been entirely an ex parte matter. The owner of the adjoining land may not have been present or cognizant of the survey in any manner whatsoever; and may have been then, and his grantees may now be, able to show its total incorrectness as the true line betwixt the lots.
Its character, then, as tending to show an agreed or recognized line by adjoining owners, which is the only ground on which it can be received as evidence, utterly fails. The evidence, therefore, was properly rejected, and there must be entered
Judgment on the verdict for the plaintiff.