Noyes v. Gilman

ViugiN, J.

The issue was the true dividing line between the adjoining parcels of laud of the parties, the plaintiff’s land being part of the river lot 105, and tlie defendant’s a part of 104. The decision of this issue did not depend necessarily upon the original location of the line between the original lots as made by McKechnie in 17G3, or even of the line as settled between Temple and Williams by the commission in 1797 ; for there is no evidence that the original monuments of that line are known to bo standing upon the face of the earth. But much of the mass of testimony, oral and documentary, upon both sides, relates to alleged recognized lines between the parties and their predecessors in title, and to their respective occupation under claim of ownership. We do not consider it profitable or practicable to put into this opinion an analysis of the six hundred and twenty pages of evidence. It is sufficient to say that after a most careful examination of it, we cannot declare that the jury, with their superior facilities for weighing the credibility of the witnesses, have committed an error. There is no doubt that wherever may be the actual weight of evidence the verdict is founded upon the unqualified testimony of a very large number of disinterested and apparently intelligent witnesses, who, to all appearances, based their testimony upon their knowledge in the premises. Wo therefore overrule the motion to set aside the verdict.

*398 The first, third and fourth exceptions complain that certified copies of the laying out and acceptance of the two rod road, in 1808, and similar records of the laying out and acceptance of Temple street in 1819 and 1823 respectively were excluded. But the copies offered are not made a part of the bill of exceptions; on the contrary the only portion of the record disclosed, (and that is not certified), contains simply what purports to be a description of the several roads. These paper descriptions alone unattended by connecting facts could not be admissible. The certificate may have been insufficient; the paper location may never have been fixed upon the face of the earth, or the roads never opened as located, or traveled as opened. Sproul v. Foye, 55 Maine, 163. In a word, sufficient facts do not appear to show the exclusion erroneous. Woodcock v. Calais, 68 Maine, 244.

The second exception is not tenable. It was discretionary with the presiding justice to allow or disallow the representation of the stone monument upon the court plan after it had been returned to court by the surveyor. 'Were it otherwise, it does not appear that the defendant was aggrieved by the ruling. The ruling in no wise excluded any evidence offered in relation to the monument, which the evidence located two rods north of any line claimed by either party.

The fifth exception does not disclose sufficient data to enable us to decide that the ruling, excluding the deed was erroneous. A literal construction of the exception shows that only the premises of the deed was offered. Nothing appears to connect its recitals with the line in question. The deed of strangers may become evidence in cases of this kind as in Sparhawk v. Bullard, 1 Met. 95 ; but the bill of exceptions does not bring this case within the rule of the one cited.

Neither can the sixth exception be sustained. It does not appear what testimony of the other side the record of the location was offered to contradict, or what the testimony accompanying the record was. Fuller v. Ruby, 10 Gray, 285 .

The seventh exception, related to the exclusion of the deed from Lemuel Stilson to the First Congregational Society of Waterville. It was offered for the specific "purpose of contra- *399 dieting the testimony of Stilson” — not the grantor but his son, L. A. Stilson. What part of the testimony of L. A. Stilson this was offered to contradict we are not informed. Nor upon a careful perusal of the ton pages of L. A. Stilson’s deposition do we find any testimony which the description of the premises offered tends to contradict. If otherwise admissible, (which is denied) the defendant was not injured by the exclusion.

The eighth exception discloses no cause of grievance on the part of the defendant. Both the plaintiff’s and the defendant’s plans went to the jury by consent of the parties : saving a few lines not upon these plans, they were copies of the court plan made for parties by the surveyor.

Under the omnibus clause in the bill of exceptions, the defendant makes but two complaints; and without meaning to sanction this very summary mode of filing exceptions, we pass upon these two instances of alleged grievances :

1. The exclusion of Silas Berry’s testimony was undoubtedly correct. Having testified that he carried on the Waterville town farm six years, commencing eleven years ago, and that Amasa Starkey (since deceased,) was there then, the defendant asked Berry "whether Starkey told him what Peavey has told here.” Peavey’s testimony was a recital of what Starkey and Peavey did in relation to the well in 1844. The testimony elicited by the question was clearly hearsay.

2. The other complaint relates to the admission of the witness Noyes’ testimony given at another trial. The only purpose for which it was admissible, was to contradict Noyes’ present testimony. Instead of producing a copy of Noyes’ entire testimony elicited on being recalled and reading extracts, the defendant produced only a copy of the extracts. Thereupon the plaintiff was entitled to put in evidence so much of the remainder as was relevant. But he had no copy. Necessity compelled him to call the stenographer and have him read his original minutes, some of which was relevant but most of which was not. So much as was not, it was the duty of the presiding justice to instruct the jury to disregard; and the presumption is that he did so instruct them. If the defendant had done his duty, this case *400 would not have been lumbered with irrelevant testimony. We do not think the defendant was injured, as the irrelevant testimony had no reference to the acts of this defendant or to anything which could affect her rights.

Motion and exceptions overruled.

Appleton, C. J., Walton, Libbey and Symonds, JJ., concurred. Peters, J., concurred in the result.