Adams v. Blodgett , 47 N.H. 219 ( 1866 )

Nesmith, J.

This was trespass, guare clausum fregit, wherein the defendant is charged with breaking and entering plaintiff’s close, situate in Plymouth, in this county, being lot No. 1, in the second range and second division of lots in said town, and with force, &c., cutting and carrying away plaintiff’s trees and hemlock bark. The plaintiff’s writ is understood to have been dated in March, A. D. 1864. The declaration stated the time of the wrongful entry and injury to plaintiff at some time prior to the date of the writ. The gist of this action is the disturbance or violation of plaintiff’s possession. If plaintiff’s land be illegally entered, a cause of action at once arises. Whatever is done after the breaking and entry is but aggravation of damages. Brown v. Manter, 22 N. H. 468; Ferrin v. Symonds, 11 N. H. 365.

The defendant offers no justification or license, and the verdict of the jury is found against him. The questions made here have reference to the charge of the judge.

1. As to the damages, or price of the hemlock bark taken by defendant. The plaintiff may properly elect any day prior to the date of her writ, as the time when the defendant wrongfully and forcibly entered upon her land and carried away and converted to his use the hemlock bark complained of, and the defendant cannot find fault if he be called upon to pay the highest market value of the bark at such time. Such is the elementary rule, where the trespass asked is not laid with a continuando. 1 Espenasse N. P. 407; Buffer N. P. 86. And in trespass as well as trover, the plaintiff is not only entitled to recover the market value of the property at the time of the conversion, but also the interest thereon from that, time to the time of the rendition of the verdict, as a measure of indemnity, or as additional damages, and in one case the jury were instructed also to consider, in addition to the value of the timber taken, the deterioration of the land, caused by its removal. Wallace v. Goodall, 18 N. H. 439.

We think the court, according to the amendment furnished to the case, gave the right rule of damages to the jury. In getting at the true value of the bark, it might be impossible to show sales on the lot where it was peeled, hence it was well to go to the place of delivery, where a price had been established by sales ; or to a neighboring station on the railroad, where similar sales of bark are presumed to have been made. So, as to time, when this bark was' actually hauled off from plaintiff’s land, being the true time of its conversion by the defendant, there may not have been any sales of this commodity in that vicinity, at or near that time. It occurs to us, a fair average price might be arrived at by the jury, by showing evidence of what the price of bark was, in that vicinity, at different times, both before and after the alleged time of conversion. It is well known to be a kind of property which fluctuates in value or price, from year to year, and from one part of the same year to another. We do not see how the defendant could be prejudiced by the charge of the court on this point, and think the ruling may be properly sustained.

2. In cases of mere private rights, the declarations of deceased persons, who were so situated as to have the means of knowledge, and had no interest to misrepresent, are competent evidence to prove an ancient boundary. Shepard v. Thompson, 4 N. H. 213; Lawrence v. Haynes, 5 N. H. 37; Great Falls Manuf. Co. v. Worcester, 15 N. H. 412; Smith v. Powers, 15 N. H. 546; Melvin v. Marshall, 22 N. H. 381; Adams v. Stanyan, 24 N. H. 405.

Justice Bell remarks, in giving his opinion in one of the above cases, that the admissibility of this kind of proof is not now an open question. It is admitted as traditionary evidence, or secondary in its character, and as the best the case admits of. "Inscriptions on walls, and fixed tables, mural monuments, grave stones, surveyors’ marks on boundary trees, &c., which, as they cannot be conveniently brought into, court, may be proved by secondary evidence.” 1 Greenleafs Evid. sec. 94. But when they can be brought into court their actual production is required, according to the English rule of evidence, as stated in the cases referred to, in note to the aforesaid section. Vide, also, note and additional authorities, in 1 Greenl. Ev. sec. 145.

In the opinion of Chief Justice Perley, in the case Melvin v. Marshall, he states, that in Prescott v. Hawkins, 22 N. H. 191, a witness for the plaintiff testified that a deceased surveyor of Holderness, who was understood to have made the original survey and division of that town, went to the spot and pointed out a boundary as the corner of a certain lot, and the evidence was held in this court to be competent.

So, also, in Van Deusen v. Turner, 12 Pick. 532, it was held, that, upon a question of boundary, the declaration of a deceased person, who pointed out a line of marked trees, declaring it was a known division line, was admissible in evidence as part of the res gestee. The court in that case say, had the deceased been requested to go and point out the line, and he had done it without any declaration whatever, it would have been an act of the same character, and admissible upon the same principle.

Now, to apply the law to the facts of this case. We find Jonathan Cummings, an experienced land surveyor, making a survey many years ago of lot No. 2, in Plymouth. Finding the northeast corner of said lot, he runs the line dividing it from No. 1, in the same range, to the northwest corner of lot No. 2, and the southwest corner of lot No. 1. After some delay he also finds there a spruce tree, fallen and partly decayed, and with marks apparently made with a marking iron on two pieces thereof; the one mark representing I, the other II. These marks were examined by the surveyor, and the witness who was then with him. Cummings then pronounced this spruce tree to have been the corner of lots 1 and 2. Cummings is now dead; was not interested as owner in either lot. Had surveyed many of the lots in that part of the town; uncertain whether he had before surveyed either of these lots where the line was in dispute. Under the facts, as here disclosed, it is not necessary that the testimony of the witness should be regarded as conveying the opinion of an expert, but rather as the statement or assertion of a distinct fact within the knowledge of the surveyor. When the object of the surveyor’s search was found, with its significant marks upon it, he proclaimed that the spruce tree was the corner of lots 1 and 2. The witness may not only now state what was then found, but also what was then said. The act and declaration are inseparable, and explain or elucidate each other. Sessions v. Little, 9 N. H. 271. We think the witness was properly allowed to state both the acts and the declaration of the deceased surveyor, and that our construction of the facts of the case harmonizes with the case Wallace v. Goodall, before quoted on this point. We need not go so far as the court in Massachusetts do, in the case Davis v. Mason, 4 Pick. 156.

3. It does not appear from the case, that Penniman’s testimony did, in aDv material respect, apply to or aifect the issue before the court.

A verdict will not be set aside on account of the introduction of immaterial testimony. Clement v. Brooks, 13 N. H. 92. There must, therefore, be

Judgment on the verdict.