Walker v. Collins , 61 Vt. 542 ( 1889 )

The opinion of the court was delivered by

Tart, J.

I. The defendants complain that a witness was not. permitted to answer the question, “ whether he had ever seen a pi an. or field-book, which authorized him to insert a strip of land between ranges seven and eight,” in the town of Rochester-The court excluded the question for that the plan or field-book was the best evidence of its contents. There was no error in excluding the question ; it had already been answered in favor of the defendants. The witness had stated that he had never found anything that authorized him to lay out a strip between the ranges named. If he had never found anything that warranted it, it was in substance saying that he had never found a plan or field-book authorizing it. There was no reversible-error, even if the ground assumed by the court was unsound, which is a point we do not decide; it was the repetition of a. question already answered.

II. It was claimed that the trespass was committed upon the Knapp strip of land, which the plaintiff insisted was between the seventh and eighth ranges of lots. The defendants’ evidence tended to show there was no such strip, and they requested the court to charge that if the jury so found, the verdict be for the defendants, on account of the misdescription of the locus in quo. It related to that branch of the case in which the plaintiff' claimed to recover," having title to the land. The request was complied with. The jury were told that if, in point of fact, there-was no such strip of land as the Knapp lot, then it was very plain, that the plaintiff had no title.

III. In running the lines of the old town of Philadelphia, the Surveyor General was required by law, called the swag law, to allow one chain in thirty for the deflection of the chain in passing by obstacles. The defendants requested the court to charge that each proprietor^ and his grantees, would be entitled to the land so allotted, notwithstanding it overran in width the surveyor’s description. Whether entitled to the charge or not, it was in fact given, and the jury were told that before they applied that rule, they ought to be satisfied that the lots were so run, and that a deviation was so made in the measurement at the time the proprietors’ survey was made. The jury were told to consider that fact in determining where the lot lines were, in case they found the fact as the defendants claimed it, not otherwise.

Judgment affirmed*