Wood v. Willard

| Vt. | Nov 15, 1864

Pierpoint, J.

This is an action of trespass on the freehold, and the controversy between the parties at the trial below was as to the location of the dividing line between lands owned by the plaintiffs and lands owned by said James N. Willard.

It appears from the bill of exceptions, that prior to the year 1812 a controversy had arisen between one Thomas Denny and Charles Willard, who were then the owners of these lands, as to the dividing line between their respective lands, and a suit between them was pending in court.

This controversy was settled by the parties, by their agreeing upon a division of said lands, and deeds of partition were thereupon executed, dated the 26th day of August, 1812. The line of division then agreed upon is the line now in dispute. The said Charles Willard, from whom the plaintiffs’ title is derived, took the west part, and the said Denny, from whom the defendant’s title is derived, took the east part. On the 22d of March, 1817, Charles Willard mortgaged his part to David H. Sumner, who perfected his title thereto by foreclosure, and a writ of possession in June, 1820, and deeded the same to the plaintiffs on the 21th day of April, 1860.

Thomas Denny conveyed his half to Thomas A. Denny April 5th, 1819, and Thomas A. Denny conveyed the same to the defendant, James N. Willard, January 17th, 1829.

The land in controversy is bounded northerly by Hartford town line, and southerly by Quechee river.

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The defendant claimed, that the true corner on the Quechee river Was at the mouth of a little brook, and that formerly there stood at the mouth of this brook, on the bank of the river, a hemlock tree marked, which was washed away by the river, with the bank on ..which it stood some thirty years ago, and that this tree was the eor"Trer‘~on the river. The defendants also claimed, that a • certain soft maple tree standing on the Hartford town line, was the true corner there, and that the division line between the said James N. Willard’s land, and that of the plaintiffs, was a line drawn from the said hemlock to the said maple. And‘to establish this claim, he offered to prove that on several occasions, after the said Charles Willard had ceased to be the owner of the land, now owned by the plaintiffs, or to have any interest therein or in either of said pieces, and before any controversy had arisen, he being upon the land, and at the place, pointed out the said hemlock tree, and the said soft maple tree, to the witnesses, as being the corners of the said lots, as agreed upon at the time of the division of the said lots between the said Thomas Denny and himself.

The defendant offered similar acts and declarations of the said, Thomas Denny, made under like circumstances. The said Charles) Wizard and the said Thomas Denny being both dead.

These acts and declarations were objected to and excluded by the court, and in this it is claimed there was error.

These declarations of Willard and Denny, were hearsay testimony only, and clearly come within the general rule, that such testimony is not admissible. To this rule however there are certain well established exceptions, and the question here is whether the evidence offered comes within any of those exceptions.

In England it is well settled that in questions as to ancient boundaries, concerning the extent of public municipal jurisdictions, public reputation, or the particular declarations of deceased persons, made before the .controversy arises, are admissible. See Phil. Ev. 4th Amer. Ed. 219, note 87, where the authorities are collected and examined, a further reference to which is unnecessary here.

But the exception has not been extended there, to questions as to the boundaries between the estates of private individuals.

This exception seems to be founded in the necessity of the case. Questions as to these boundaries may arise long after all persons having any actual knowledge as to their location, shall have passed away; and there may be no other way of proving them, except by public reputation and tradition. The same reason seems to have led to an exception allowing this class of evidence in questions as to pedigree.

The reason upon which this exception is based, would seem to apply with equal force to questions as to boundaries between individu-^ ais. The fact that many persons may be interested in the establishing of the line of a municipal jurisdiction, cannot increase the difficulty of proving it under the general rule of evidence.

The landed estates in England are large and the boundaries thereof doubtless generally settled and clearly defined, so that questions as to them may not so' frequently arise, and the necessity for resorting to this class of evidence for that reason, may not be so great, as in the case of municipal boundaries. In this country it is not so. In many of the states, and especially in this state, the territory within their limits was first divided into townships, and these were soon after subdivided into small lots, and distributed between the several proprietors. Almost the only evidence that was left upon the land, to indicate the location of the lines either of the townships, or of the division between the proprietors, was marks upon the trees standing thereon, and these evidences, from lapse of time, accidental causes, and the cutting off the timber, are almost entirely obliterated, at least such is the fact in large portions of this state.

Questions are now constantly arising between individuals as to the: location of these original lines, which to a great extent constitute the present division lines between adjoining land owners. How are these lines to be established ? If it be said that it must be by the testimony of witnesses who have personal knowledge of their original location, they cannot be proved at all, as in the great majority of cases, all such persons are now dead.

' The necessity resulting from the impossibility of proving the location of such ancient lines and boundaries, has led the courts in /several of our sister states to extend the exception to the general rule excluding hearsay testimony, so far as to admit the declarations of deceased persons, who had knowledge on the subject, as to the location of ancient- boundaries between the lands of private individuals.

Thus in Smith v. Powers, 15 N. H. 546, which was an action of trespass on the freehold, it appears from the case that there was a controversy between the parties respecting the true situation of the northerly and easterly lines of the lot in question. The plaintiff introduced evidence, that one John Rowell lived on the lot with his son. It did not appear what title he had, or that he had ever parted with it, if he had any, except that he moved away thirty or forty years before, and had not lived on the lot since- The plaintiff offered the declarations of said John, who had deceased, made after he had moved from the lot, that a certain birch tree, standing near the river, was the south-east corner of the lot. This was objected to and admitted.

In disposing of this question, Parker, Ch. J., in his opinion says : “ As to the declarations of John Rowell- It does not appear that he had any interest in making them, or any purpose to subserve thereby. It is true, as the defendant’s counsel contend, that the decisions in England seem to restrict the evidence of the declarations of deceased persons, respecting boundaries, to cases which relate to public rights-, or to boundaries in which several persons are interested, or to what the deceased said relating to the public opinion, respecting the boundary. But the testimony has not been limited in this country. The' authorities are amply sufficient to sustain the principle that the declarations of a person deceased, who appeared to have had means of knowledge, and no interest in making the declarations, are competent evidence upon a question of boundary, even in a case of private rights. Upon this principle the declarations of John Rowell are well admitted. It was in evidence that he pointed out the boundary.” The same principle is recognized in Lawrence v. Haynes, 5 N. H. 37.

The same rule prevails in Connecticut. Higley v. Bidwell, 9 Conn. 446 ; Wooster v. Butler, 13 Conn. 308 ; Kinney v. Farnsworth, 17 Conn. 355" court="Conn." date_filed="1845-07-15" href="https://app.midpage.ai/document/kinney-v-farnsworth-6575881?utm_source=webapp" opinion_id="6575881">17 Conn. 355. In the latter case, Stores, J., says : “Within whatever limits the rule of evidence as to the admissibility of reputation on questions of boundary, is restricted elsewhere, it is well settled in this state that general reputation is admissible for the purpose of showing, not only public boundaries, such as those between towns, societies, parishes, and other public territorial divisions, .but also the boundaries of lands of individual proprietors.

In Boardman v. The Lessees of Seed et al., 6 Pet., 328" court="SCOTUS" date_filed="1832-02-21" href="https://app.midpage.ai/document/daniel-boardman-and-others-in-error-v-the-lessees-of-reed-and-ford-mcall-and-others-in-error-85786?utm_source=webapp" opinion_id="85786">6 Peters, 328, a question arose as to the admissibility of proof of the declarations of a deceased person, as to certain facts relating to a corner in dispute between the parties. Judge McLean in his opinion states the rule as follows: “ That- boundaries may be proved by hearsay testimony, is a rule well settled ; and the necessity or propriety of which is not now questioned. Some difference of opinion may exist as to the application of this rule, but there can be none as to its legal !force. Landmarks are frequently .formed of perishable materials, which pass away with the generation in which they are made. By the improvement of the country, and from other causes they are often destroyed. It is therefore important in many cases that hearsay or reputation should be received to establish ancient boundaries.” This, says Mr. Hill in note 87, Phil. Ev. 219, well expresses the doctrine, and the reason of the doctrine, as it is now understood in the American courts. See also 2 Sergt. & Rawle, 69 ; 1 Watts & Sergt. 68 ; 3 McCord, 227.

From such cases as we have had an opportunity to examine, and from the other cases referred to by Mr. Hill in the note aforesaid, where all the cases are collected and examined/ we think a disposition is apparent in many of the American courts to extend the exception in favor of this class of testimony to ancient boundaries between individual proprietors ;(and that from a majority of the cases the principle may fairly be deduced, that the declarations of deceased persons, who had actual knowledge as to the location of such boundaries, or who from their connection with the property itself, or their situation and experience in regard to such boundaries, and the surveys thereof, had peculiar means of knowledge, so that it may fairly be inferred that they had actual knowledge of the same, made at a time when they had no interest to misrepresent, and made when upon, or in the immediate vicinity of the boundary referred to, and pointing it out, may be received as to the location of such boundai-y, when from lapse of time, there can be no reasonable probability that evidence can be obtained from those who had actual knowledge on the

Under this rule we think the evidence as to the acts and declarations of said Willard and Denny, and perhaps of some of the other persons should have been admitted. The line in question was established between fifty and sixty years ago, and from aught that appears all the persons that had any actual knowledge of its location, are dead, and the necessity for a resort to this class of evidence seems to be as strong in this case as in any that can arise.

The defendant Willard further claimed on the trial below, that if he failed to establish the line as claimed by him, as the true line, still he had acquired a title up to that line by adverse possession, and insists that there was error in the charge of the court in respect to this claim.

In regard to this it is sufficient for present purposes to say that upon the evidence as detailed in the exceptions, we think the charge of the court was entirely correct.

Judgment reversed and case remanded.