Corbleys v. Ripley , 1883 W. Va. LEXIS 48 ( 1883 )

JOHNSON, PRESIDENT :

This is a writ of error to a judgment in ejectment in the circuit court of Tyler county. The only question is: Are certain declarations of a deceased person as to the lines and corners of a tract owned by him, when the declarations were made, admissible as evidence? The bill of exceptions shows, that upon the trial of the case it was important to establish a certain corner and line claimed by the plaintiffs as part of the boundary of the land claimed by them in said action, title to which land they derived from Joseph Stull jr. and he from his father, Joseph Stull sr. For the purpose of establishing such corner and line the plaintiffs introduced one J. A. Shewman, and proposed to prove by him declarations made hy said Joseph Stull sr., while he was owner of said land, as to the locality of said corner and line, to which defendant objected; but the court overruled the objection and permitted the declaration to be given to the jury; and the witness stated to the jury “ that he and Joseph Stull sen.about twenty-seven or twenty-eight years ago were together on the land claimed by the plaintiffs, and that said Stull pointed in the direction of said corner and said ‘my corner is over there,’ and then pointed in another direction, and said ‘my line is over there and passes under that point,’ pointing to a point of land in sight thirty or forty rods from where they were standing, and that he and said Stull were thirty or forty rods from the corner, towards which said Stull pointed; and that the place whore the corner was pointed out and the locality of the line as pointed out was all in the woods ” &c. To the admission of which evidence the defendant excepted.

There ivas verdict, and also judgment for plaintiff.

Was the evidence properly admitted? In Chapman v. Edmands, 3 Allen 512, the court said: “The evidence oi declarations by a former owner of the premises, with whom the demandants are in privity, was rightly admitted. They were statements made in disparagement of title agaiust the interest of the party making them, and contemporaneous with his possession and enjoyment of the premises now owned by the demandants.” The court cites Plimpton v. Chamberlain, 4 Gray 320, Ware v. Brookhouse, 7 Gray 454, and Niles v. Patch, 13 Gray 254.

In Long v. Colton, 116 Mass. 414, it was said, that in most of the decided cases it was held, that the declaration should appear to have been made in disparagement of title or against the interest of the party making it, but in Daggett v. Shaw, 5 Metc. 223, it is said, that the rule as practiced in Massachusetts is not so restricted, and that declarations of persons made while in possession of land owned by them, pointing out their boundaries on the land itself, are admissible as evidence, when nothing appears to show, that they are interested to misrepresent; and it need not appear affirmatively, that the declarations were made in restriction of, or against their own rights. And in Bartlett v. Emerson, 7 Gray 174, it is held, that to be admissible such declarations must have been made by persons now deceased, while in possession of land owned by them and in the act of pointing out their boundaries, with respect to such boundaries, and when nothing appears to show an interest to deceive or misrepresent.

The rule last laid down is approved in Long v. Colton, 116 Mass.

In Great Falls Co. v. Worster, 15 N. H. 412, it appeared, tbat on the trial the plaintiits ottered the testimony of one Lyman to prove that in 1838 while on “the plaintiffs’ lot,” mentioned in several of the pleas, James Roberts, then over sixty years of age, and who died previously to the trial, pointed out a stump on the line between his line and the lot in question, as Worster’s corner. The defendant excepted to this evidence; and the learned Chief Justice Parker in delivering the opinion of the court said : “It has been held in England that in questions upon boundary between parishes or manors or on a customary right, the declarations of the common opinion of the place made bjr deceased persons, who from their situation had the means of knowledge and no interest to misrepresent, are admissible in evidence. 1 Phil. Ev. 198. The question in such cases partakes somewhat of a public character; and it is tor that reason probably that declarations of the common opinion of the place are received. But in case of a mere private boundary, if the individual was living, he could not give evidence of the common opinion but must testify to his own knowledge respecting the boundary and how that knowledge was derived. This knowledge often rests on tradition merely. The alleged boundary has perhaps been pointed out by some one, who professed to have information respecting, it. Reputed boundaries are often proved by the testimony of aged witnesses; and the hearsay evidence of such witnesses has been admitted to establish lines in opposition to the calls of an ancient patent. Conn v. Penn, 1. Pet. C. C. R. 496. And we are of opinion, that the declarations respecting private boundaries made by de7 ceased persons, who from their situation appear to have had the means of knowledge, and who had no interest to misrepresent, may well be admitted in evidence.

It has been held generally in Pennsylvania, that where boundary is the subject in question, what has been said in relation to it by a person deceased is evidence. Caufman v. The Presbyterian Congregation of Cedar Spring, 6 Binn. 59. It the witness from his situation had any interest to make the declarations; then they are not admissible. 4 N. H. 213, Shepherd v. Thompson. In that case Roberts does not appear to have had any interest to make the declaration. Although bis land bounded on <7. Worsteds he had no interest in the corner in dispute.

In Smith v. Forrest, 49 N. H. 230, it was held, that the declarations of deceased owners of land are admissible as to the boundaries of their land, when it appears from their situation, that they had tire means of knowledge, and no interest to misrepresent, especially. when the declarations are in disparagement of their title. Nesmith L, in delivering the opinion of the court said: ‘.‘Two things arc necessary in order to make the declarations of deceased persons evidence as to boundaries: first, it must appear, that the deceased party or declarant ha'cl knowledge; and second, he must have had no interest to misrepresent.” In that case the court held that, the declarations were against interest and were competent. The court also held in answer to the objection, that the declarations were not made on the land, that it was not necessary that they should be. If the party who made the declaration had the requisite knowledge and had no interest to misrepresent it was sufficient, and the declarations were admissible, although not made on the land.

In Harriman v. Brown, 8 Leigh 697, it was held, that evidence is admissible to prove the declarations of a deceased person as to the identity of a particular corner tree or boundary, provided such person had peculiar means of knowing the fact; as for instance, the surveyor or chain-carrier, who were engaged upon the original survey, or the owner of the tract or of an adjoining tract calling for the same boundaries; and so of tenants, processioners, and others whoso duty or interest would lead them to diligent inquiry and accurate information of the fact, always however excluding those declarations, which are liable to "the suspicion of bias from interest.

In Hill v. Proctor, 10 W. Va. 84, this decision is approved. It was there held, that the declarations of Kendall were inadmissible, because at the time they were made, he was interested in the location of the boundary of the land in a manner, that would be adverse to the interest of Proctor, against whom the declarations were introduced. We think, therefore, that before such declarations are admissible, it must appear, first, that the party making the declarations was at the time in a situation to know the boundary of the land, as if he was the owner of it or of-an adjoining tract having the same boundary in dispute, and that it also appear that he had no interest to misrepresent. The admission of such evidence is made an exception to the general rule, that hearsay evidence is excluded. It is admitted from necessity, and the law throws around it the two safeguards we have mentioned. But for the first the evidence would be so uncertain, that it would be of little or no value; and but for the second it would be in the power of any one owning a farm with a disputed line or corner to manufacture evidence in his own interest. Therefore, if the circumstances show, that at the time the declarations were made, it was to his interest to misrepresent or speak falsely, the declarations cannot be admitted after his death.

In the case before us the bill of exceptions shows, that Joseph Stull senior, at the time the declarations we're made, was interested to have his corner and line established at the points named by him. That interest' clearly appears from the fact that the plaintiffs, who derived their title from Stull sen. through Stull jr. in the dispute with defendant, are claiming that line ami corner so shown by étull sen., and the defendant is claiming beyond them. The evidence is clearly inadmissible under all the authorities we have cited.

The judgment of the circuit court is reversed, with costs; and the verdict of the jury set aside, and a newt-rial awarded.

The Othek Judges Coucurred.

JudgmeNT Reversed. New Trial'Awarded.