Chapman v. Twitchell

Where the plaintiff referred to a third person to show the corner boundary of his land, and such third person pointed out a stump as such corner; the act is in the nature of an admission, and admissible in evidence against the plaintiff. Traditionary evidence, in relation to thb boundaries of a private estate, when not identical with une of a public nature, cannot be received. The authenticity of a plan cannot be established by certificates made upon it by one deceased, who was not the surveyor. Neither the declarations nor certificates of a deceased person, concerning the limits and boundaries of lots between individuals, of which he was never owner nor possessor, are admissible as Evidence.

On Exceptions from Nisi Prius, Howard, J., presiding. Trespass quare clausum, and cutting down and carrying away pine trees. The cutting was admitted, and the question in the case was one of the eastern boundary of lot No. 18/ in the town of Bethel. The defendant, with other testimony, introduced one James Walker who testified, that in conversation about this lot, he requested the plaintiff to show him where the north-east corner of the land was. The plaintiff made some excuse, said “ that TwitchelFs boys had cut down the corner, and said Twitchell can show you where the corner is.” Twitch-ell went and showed us the corner and the white pine stump. This stump was claimed as the eorner by the defendant. To this testimony the plaintiff objected, but the Judge admitted it. The plaintiff having proved, that one Joseph Twitchell had been long dead, and was a surveyor, who originally run lines in said Bethel; that he was the father of Eli Twitchell, and that Eli, during his life time, kept the plans and records of the proprietors of Bethel, and that Eli had long since deceased and was an old man when he died; introduced one M. B. Bartlett. A plan was exhibited to the witness having upon it this certificate. — “This plan is the original one taken by Capt. Joseph Twitchell, it being the first plan of the town of Bethel. “Eli Twitchell.” The witness said the plan appeared to him to be the one he had seen in the possession of Eli Twitchell. He thought it was the one. The signature to the certificate, he knew to be the handwriting of Eli, whom he had often seen write. He had often seen him consulting this plan at the town clerk’s office in Bethel where it then was. The plaintiff then offered to introduce said plan, but it was objected to and excluded by the Court. The jury returned a verdict for defendant and the plaintiff excepted. 1. The plaintiff is not in any manner connected with the transaction testified of by Walker. The whole is res inter alios acta, and has no legitimate bearing either on his rights or on this case. He is not bound by their going, in his absence and without his direction, to one corner rather than another. It is of no consequence to him what stump or tree was shown by Twitchell as the corner. He was not there, nor was the fact communicated to him afterwards. This evidence should have been excluded. 2. The plan should have been admitted. The preliminary proof was full. It was an ancient plan. It was not a mere private paper. Its public nature is to be remarked from the place in which it was usually kept, the town Clerk’s office, where it was consulted as a plan of the original division of the town. Coming from that place, it has every stamp of being what it purports to be, and was in fact the best evidence of the actual original division of the town, that ever existed. If Eli Twitchell had been present at the trial and testified, that this was the original plan made by the surveyor, it would have been sufficient. We have his declaration to that effect, made long since, and in questions of boundaries hearsay must, to a certain extent, be adopted as evidence to designate them. 1*7 Tin. Abr. 86; 2 Rolle. Abr. 186. It is common to admit declarations of old people, who are dead; for then, as to ancient bounds, this is the best evidence the nature of the case admits. •Blyther v. Sutherland, 3 McCord, R. 258 and 229; Porter v. Warren, 2 Root, 22; Boardman v. Reed's lessees, 6 Peters, 341. made an elaborate argument in writing, sustaining the rulings of the Court. As to the introduction of the plan, it was a sufficient objection, that no such plan was referred to in any of the deeds in the case. And there was no more reason why the certificate of Eli Twitchell should be received as evidence in this case, as to the issue between these parties, than why any man’s certificate of any fact should not be received as evidence in a court of law after his death in any ease whatever. This certificate does not fall within any former rule for the admission of statements not under the sanction of an oath. McKenney v. Waite, 20 Maine, 349 ; Oldtown v. Shapleigh, 33 Maine, 218. It is a certificate in no way against the interest of the party making it, nor was it “ made by a person in the ordinary course of his business of acts or matters, or which his duty in such business required him to do for others. Nichols v. Webb, 8 "Wheat. 331; Patteshall v. Turford, 3 Barr. & Ad. 8, 90.