Lawrence v. Tennant

1. The true rule as to receiving documents, ancient or otherwise, in evidence is conceived to be this: The party offering the paper must make out a prima facie case for its reception; he must show that the paper is apparently as he contends. If he wholly fail to do this, the court should reject the paper; but if there be a reasonable probability established that the paper is that it purports to be, the question then becomes one for the jury, and the paper ought to go before them with proper instructions.

The real question affecting the consideration of such documents with the tribunal before which they are offered is, whether they are genuine, and contain a true statement of what they purport to contain. If found to possess these requisites, there is no reason why they may not be read in evidence. Gibson v. Poor, 21 N.H. 446. In this case both of these requisites appear. An inspection of the plan leaves no doubt that it is an ancient and much worn document, and, taken in connection with the reported evidence, establishes a reasonable probability that it is what it is marked and purports to be, namely, "A plot of the town of Epsom, taken on a scale of one hundred rods to an inch, in the year 1800, by D. L. Morril." The antiquity and genuineness of the plan thus appearing, it was of course admissible if made by public authority; and if not so made, it was none the less admissible, there having been preliminary evidence of its correctness. Other grounds of admissibility need not be considered.

2. The declarations of John and Nathan Griffin, as testified to by John Manson Griffin, were competent. They had the means of knowledge, and not only had no apparent interest to misrepresent, but, as owners of the adjoining home lot as well as the one divided, the location by them of point B at the pile of stones could not have affected their interests in any way, since whatever was added to one lot by the line which they adopted would necessarily be taken from the other.

3. The declarations of Frederick and Josiah Sanborn, which appear in the testimony of Henry F. Sanborn and William T. Sanders, were not incompetent by reason of interest. These declarations related to the location of point D; and as the plaintiff's claim is that the northerly boundary of his land and of the Gore lot is a straight line from A to D, and that D is the north-westerly corner of the Sanborn farm, the ancient ownership and occupation of the premises around D were pertinent to the issue. The Sanborn farm had been owned and occupied by the witness Sanborn and his ancestors back to his great-grandfather, and the adjoining school lot had for many years been owned and occupied by the Towles. From this long continued ownership and occupation it is to be presumed that the Sanborns and the Towles knew the boundaries and corners between their respective lands (Smith v. Forrest, 49 N.H. 236, 237); and this being so, it is difficult to conceive how the defendants' contention can be true, and the declarations of the deceased Sanborns as to the location of their north-east corner be rejected on the ground that they were interested in having it where they told the witnesses it was, in view of the fact that the Towles, the only other parties interested at the time, not only agreed to, but insisted upon, the same point as their south-west corner. Both parties were content with the location of the corner; neither sought to enlarge or change his boundary or the boundaries of any other person: both were entirely disinterested, unless the mere fact that they were adjoining owners rendered them interested. But if it did, the objection goes to the weight of the evidence merely, inasmuch as under the statutory changes in the law of evidence, by which all persons interested, and all parties, even, have become competent witnesses, there is no longer occasion to exclude the declarations of deceased real estate owners as to their boundaries, upon the assumption of Shepherd v. Thompson, 4 N.H. 213, 215, and other like cases, that it must be presumed to have been their interest to extend their boundaries.

Stated more fully, the case presented is this: A farm has been owned and occupied by four successive generations of Sanborns; and the farm adjoining it on the north has been owned and occupied by two successive generations of Towles. There is no evidence that the line between them has ever been in controversy or doubt. Their undisputed boundary is the western part of the line running from the point D eastward to A. Twenty years ago, Sanborn built a wall on that line in place of bounds described by Towle as "bounds which the fathers set up." When H. F. Sanborn is called as a witness in this case, he is interested in a sense that is apparently immaterial in giving testimony that will carry the boundary north to that line and beyond it, as Benjamin Towle is interested in carrying the same boundary south to that line and beyond it. But they are not interested in this suit; and if they were, they would not be disqualified as witnesses by their interest to misrepresent. The plaintiff introduced the testimony that their fathers, F. Sanborn and B. M. Towle, told them in substance that the line D A was the boundary. The declaration of B. M. Towle was in effect a disclaimer of title south of that line, and the declaration of F. Sanborn was in effect a disclaimer of title north of it; and to that extent their declarations come within the strictest interpretation of any rule that could require their statements to be against their interests. If they were admissible only as disclaimers, B. M. Towle's declaration would be evidence for the plaintiff in this case, but would not have been evidence for the defendant if the plaintiff had claimed that the boundary was north of D A. Such a rule, instead of admitting them because the declarants made them under circumstances calculated to elicit the truth, uninfluenced by interest in an existing controversy, would adopt as a test the subsequent interests of other persons in a controversy concerning the boundary of other lands — a controversy that might have arisen long after the declarant's decease. The true rule admits this traditionary evidence not as a mere disclaimer or disparagement of title, but on the broader ground of the nature and necessity of a class of cases in which great difficulty in proving original landmarks is likely to arise from lapse of time. The interests of F. Sanborn and B. M. Towle, as the respective owners of adjacent lots, the common boundary of which was unquestioned, showed a strong probability that they had knowledge of that boundary. B. M. Towle's statement that the line D A was his southern boundary was confessedly competent; and there is no ground of reason for excluding F. Sanborn's concurring statement that the same line was his northern boundary. Had their statements been mere conflicting assertions of their claims in an existing contention, they might have been of no value. Instead of being expressions of their interests in a disputed boundary, or of their desires to enlarge their possessions, they tended to prove a common understanding, and to disprove all motive to misrepresent. Under such circumstances, the admission of Towle's statement and the rejection of Sanborn's, when the question is between D A and a line south of it, and the admission of Sanborn's and the rejection of Towle's when the question is between D A and a line north of it, would encumber the rules of evidence with an arbitrary discrimination, and unjustly suppress the cogent proof furnished by the concord of adjoining owners.

The further objection to the testimony of Sanders, because (1) the declaration of the deceased party was purely hearsay, and because (2) they were not made on the land and while pointing out the corner, is not well taken.

It is true that such evidence is hearsay in its nature, but it is equally true that it comes within a well recognized and long established exception to the general rule of law, that hearsay is not competent evidence; and while it may not often be entirely satisfactory and conclusive, it has been found to subserve the ends of justice, and its admissibility in this class of cases is well settled. As to the second ground of objection, it is sufficient to say that declarations, otherwise admissible, are not rendered inadmissible because made off the land, and because the object referred to was not pointed out. Smith v. Forrest, 49 N.H. 230, 237; Powers v. Silsby,41 Vt. 288; Webb v. Richardson, 42 Vt. 472, 474.

4. The defendants contend that the jesting exclamations and remarks of Sanborn and Towle as to the removal of the landmarks or bounds were incompetent as declarations of living witnesses concerning the location of a corner bound. It is insisted, however, by the plaintiff's counsel (and such would seem to be the fact), that they were not introduced for that purpose, but for the purpose of showing that at the time the wall was built there was a stake and stones at D, and that the corner of the wall was placed upon that exact spot. The statement of these facts by the witnesses in a proper way would not have been objectionable. The location of the point D being in issue, the former existence of a stake and stones at the same place where the wall was subsequently built would be a relevant fact upon that issue. This was what the evidence excepted to tended to prove. In legal effect, the involuntary and coincident remarks of the witnesses to each other amounted simply to a mutual recognition of an established line between them, and that one kind of a bound was being substituted for another at the same place. Accompanying an act relevant and material independently of what was said, and serving to elucidate and give it a character, no reason is perceived why these remarks might not properly be considered as a part of the res gestae (see Steph. Dig. Ev., art. 9, and Galena R. R. Co. v. Fay, 16 Ill. 558, 568); but if not, they were at most but the statement of a relevant fact in an improper way, and, being cumulative testimony merely as to the undisputed Sanborn-Towle boundary, their admission does not afford a sufficient ground for setting aside the report of the referee.

5. The exception to the testimony of Benjamin Towle, that "the wall at corner D was supposed to be built on the line between the Sanborn farm and the school lot," is not well founded. The word "supposed," to which objection is made, was evidently used by the witness in the sense of understood, and when so taken is not open to valid exception. See Leach v. Bancroft, 61 N.H. 411. The further exception to the testimony of this witness, that "the Sanborns acknowledged that D was the corner, so far as I ever knew," cannot be sustained. See Smith v. Forrest and Leach v. Bancroft, supra.

6. The only remaining exception considered in the defendants' brief is to the admission of the declarations of deceased persons as to the location of the highway known as East street.

It appears from the reserved case that the defendants claimed that the highway as now occupied is the original East street, against which the Home lots were laid out; while the plaintiff claimed that the highway as now occupied is not the original East street, but that the street originally ran farther north five to eight rods from the present highway. The original location of the highway was therefore an important question upon the location of the southerly line of the Home lots, and being a matter of public and general interest, the evidence excepted to was competent. State v. Vale Mills, 63 N.H. 4; Noyes v. Ward, 19 Conn. 250, 269; 1 Gr. Ev., ss. 128-131. The exceptions are overruled.

Judgment for the plaintiff on the report.

CLARK, J., did not sit; DOE, C. J., and ALLEN, J., concurred; SMITH, J., concurred in the result; CARPENTER and BINGHAM, JJ., were of opinion that the declarations of Frederick and Josiah Sanborn, and those of Henry F. Sanborn and Benjamin Towle, were not competent evidence.