103 Me. 402 | Me. | 1908
Real action. The plaintiff and defendants own adjoining tracts of land. The plaintiff owns the northeast corner of lot 3 in East Machias, and the defendants own all of lot 2, which lies north of lot 3. By the pleadings the controversy is narrowed down to the question where on the face of the earth is the dividing line between them. It is admitted that that line is the division line between lots 2 and 3. It is admitted that no
The title to both lots was formerly in William Gooch. After his death lot 2 came to the defendants, and lot 3 to James H. Gooch, the plaintiff’s father, who conveyed to her the northeast corner of lot 3, described as follows: "Beginning . . /. at the corner of land owned by the late Josiah T. Gooch (lot 2) and running southerly on the side of the road thirteen rods to a stake, thence north 66 degrees west 22-J rods to a stake, thence north 18 degrees east 12 rods to the said Josiah T. Gooch’s land, thence easterly by said Gooch’s land 22 rods to the place of beginning.” The plaintiff introduced evidence tending to show that at the time she was negotiating with her father for the conveyance of the demanded premises to her there was a fence on the division line. She offered evidence to show that at that time her father measured on the line of the road thirteen rods southerly from the fence to a point which he marked by a stake, and that a tree now marks the spot where the stake was placed. This evidence was excluded, and the plaintiff excepted.
It appears that the monument which formerly marked the division line no longer exists. If the monument was there it would be conclusive. Or if the evidence to show where the line was was undisputed and certain, that would be conclusive. But since the monument is not there, and since it is in dispute where the line was which it marked, the parties are remitted to other evidence of its location. The plaintiff claims that one way to show it is to commence at the tree where she claims her father placed a stake and measure back thirteen rods, the reverse of the measurement which she claims he made from the fence to the stake. We think -she should have been permitted to show the fact of the measurement made by her father and the point where he placed the stake ,at the end. For if it was then thirteen rods from the fence to the ¡stake, it must now be thirteen rods from the tree, if it stands ip
The plaintiff also offered to show the declaration of her father, while the owner of lot 3, as to the location of the division line between lot 2 and lot 3. The evidence was excluded, and she excepted.
It is well settled in this State that the acts of the owner of land when upon it, pointing out the monuments and location of his line, and his declarations made in regard to them at a time when no controversy exists, are competent to be submitted to the jury after his death, as having some tendency to prove the location of the line, Royal v. Chandler, 83 Maine, 150 ; Emmett v. Perry, 100 Maine, 139. And this is true whether such acts and declarations be for or against interest. Wilson v. Rowe, 93 Maine, 205.
The declarations offered and excluded were, as it now appears, in the interest of the declarant, and not against it. They were self serving. They could only be admissible upon proof that the owner who made them was dead. Whatever the fact may be, the record before us is silent upon this question. For aught that appears, James H. Gooch may still be living. Hence it is not shown that the exclusion of his declarations was erroneous.
But, for the error pointed out in the earlier part of this opinion, the entry must be,
Exceptions sustained.
