Putnam v. Fisher , 52 Vt. 191 ( 1879 )

The opinion of the court was delivered by

Powers, J.

Prior to 1836, Jedediah and Eldad Dewey were the owners of the lands and water privileges now owned respectively by the plaintiff and defendants. January 23, 1836, the Deweys, by warranty deed, conveyed to Booth and Spaulding a lot on the stream below the plaintiff’s land, with the right to build and maintain a dam of the same height as a former dam used in connection with a grist-mill. The defendants stand upon this Booth and Spaulding title. Afterwards the Deweys, by a lease for a thousand years, conveyed to Grover the lot up the stream from the defendants’, on which the plaintiff now operates a machine-shop by means of water power. The Deweys also conveyed to Grover, by warranty deed, the right of digging ditches over other lands then owned by the Deweys, lying between the lands leased to Grover and the lands conveyed to Booth and Spaulding, to the east or upper edge of the pond raised by Booth and Spaulding’s dam. These ditches were to serve the purpose of race-ways from the upper or Grover mill to said pond. The plaintiff stands upon the Grover title, and brings this action for damages occasioned by the defendants’ raising their dam higher than the old grist-mill dam, thus creating a back flowage of water through the plaintiff’s ditch upon his water-wheel.

At the trial it became a material question to determine whether in point of fact the defendants’ dam was higher than the old gristmill dam, and the plaintiff was allowed to show that in 1846 or 1847, Jedediah Dewey then having no title to the defendants’ dam or the land and privilege connected with it, but owning other lands bordering upon the defendants’ mill-pond, and affeeted by raising the water of said pond, and liable upon the covenants of warranty made in his deeds to both the plaintiff’s and defendants’ grantors, went upon the dam then owned by Booth and Spaulding, and cut away a circular segment about twenty inches deep and twenty-five feet long, for the purpose of lowering the pond, and was further allowed to prove the declarations of Dewey while so cutting down the dam, to the effect that the dam was too high. The admission of these declarations was error. To the general rule that hearsay, or second-hand, evidence is inadmissible, there are several well-defined exceptions, but the exceptionable evidence is always guarded by some security that makes it reasonably safe to rely upon it. Thus, the testimony of a witness on a former trial between the same parties since deceased, may be proved by persons who heard it. Such testimony, having been given in a judicial proceeding, under oath, with opportunity for cross-examination, when properly proved, is always received as evidence in a subsequent trial of the same case. In matters of pedigree, the declarations of deceased members of a family, entries in family Bibles, correspondence between relatives, recitals in deeds, inscriptions on tombstones, rings and monuments, and many other similar facts are often admitted in evidence. In this class of evidence it must appear that the declaration, entry, &c., was made ante, litem motam, by some one connected with the family who would be likely to know the- fact, and likely to truthfully express it. Matters of public and general interest, such as ancient municipal boundaries, rights of common, and other historical facts are admitted in evidence from necessity, and may be established by ancient documents, declarations of deceased persons, &c., provided they are made before a controversy has arisen. This exception has been extended in this and some other states so far as to allow declarations of deceased persons to establish an ancient boundary line between individuals, though this is contrary to the English rule. Wood v. Willard, 37 Vt. 377 ; Kinney v. Farnsworth, 17 Conn. 355 ; Smith v. Powers, 15 N. H. 546 ; The Queen v. Bedfordshire, 4 E. & B. 535. But under the decisions in England and in this country, this evidence is hedged about with qualifications that must appear before it can be received. To establish an ancient boundary, whether of public or private property, by the declarations of deceased persons, it must appear that the declarations were made before a controversy has arisen in respect to the boundary, that the declarant had knowledge, or such connection with the subject-matter as presumptively to have had knowledge, of the fact, and can identify the boundary, and that the declarant had no interest to misrepresent the fact. 'The declarations of deceased persons are likewise admissible in evidence in proceedings between third persons, provided they were made against the pecuniary or proprietary interests of the declarant, and provided, further, that they do not question a title that the declarant had no right to question, such as the case of a tenant who cannot dispute the title under which he holds.

The declarations of Dewey when cutting down the dam, cannot be brought within any of the exceptions to the general rule. The doctrine of Wood v. Willard, supra, has never been extended by our court beyond the case of a disputed ancient boundary line. It has not been applied to proof of other facts of ancient date. Even if the/aei to be proved was one proper for the application of the rule admitting declarations, the essential conditions that must exist are not found in this case. One of the conditions recited in Wood v. Willard, as necessary for the admission of this class of evidence, is that the declarant has “ no interest to misrepresent the fact.” It is not stated that the declaration must be against interest, but that the declarant must stand at least indifferent in respect to interest. In this case Dewey’s declaration was in favor of his own interest, and to hold it admissible would enable a party by his own declarations to make evidence for himself. Dewey was under a liability by virtue of his covenants of warranty ; he owned land bordering upon Booth and Spaulding’s pond, which was liable to encroachment if the dam was higher than it should be ; and thus he was interested to reduce its height.

The County Court seems to have admitted the declarations of Dewey, upon the ground that the act of cutting down the dam and the contemporary declaration tended to show that Booth and Spaulding acquiesced in Dewey’s claim, that the dam was too high; but no right based upon the ground of acquiescence was claimed by the plaintiff, and none could be under the facts appearing. The evidence was left to' work its injurious consequences upon the defendant’s title, as shown by their deeds.

Judgment reversed.