Meacham vs. Fay, 6 Vt. 208

The opinion of the court was pronounced by Williams, C. J. — This is an action of trespass quart clau-sum, fregit. To maintain it, the plaintiff may rely upon his possession alone. It was wholly unnecessary for him in his declaration to give a particular description of his lands by boundaries. The particular boundaries could only become of consequence if the defendant shew or claimed a title. In this case there would have been no necessity for giving any evidence in relation to the boundaries, unless the plaintiff had made it necessary by his declaration.

In no case in proof of abuttals is strict literal proof necessary. — Roberts vs. Kar, 1 Taun. 507. When a defendant does not justify under a title, and appears in no other light than a mere wilfol intruder on the lands of another, he is not to require too much critical nicety in proof of the particular boundary set up in the declaration.

When a plaintiff has made out a prima facie case, and the only object of the defendant is to turn him over to a new action, or to an amendment of his declaration, without its affording either justification or extenuation of him, he at least must be held to make full and ample proof on his part. In this case, the ancestor of the plaintiff received a deed of the premises in question in 1803. — He soon after caused a survey to be made conformable to his deed, as he supposed, went into possession, and he and his son, the present plaintiff, have remained in possession ever since.

After he entered into possession, the heirs of John Smith commenced an action of ejectment again him, and failed to recover. The plaintiff having thus been in possession for about thirty years, the defendant enters and commits the trespasses complained of; the plaintiff commences this suit, de- ~ scribing the land in his declaration a§ it is described in his deed, supposing that it had been surveyed according to the deed.

On trial, he proves the defendant to have been a trespasser in his possession, and is met with an attempt, not to shew a title out of him, but that he had misdescribed his land in the declaration. If there was any merit in this defence, it would have been founded only in this, that after a recovery, the defendant might still have been liable to another action for the same trespass, either by the plaintiff in a suit describing the locus in quo differently, or by some one else who had a title to the premises.

But as the plaintiff entered into possession of the locus in quo under a deed and a survey intended to be in pursuance of the deed, claiming it as a part of the land contained therein, he would maintain no other action for this trespass by varying the description in his declaration, and the defendant was protected from a suit brought by any one else, as the title of the plaintiff was established by the statute of limitations, even if it had no better foundation.

The first ques-, tion which has been here presented arises on the objection of the defendant to the admission of the testimony of the declarations of David and Joel Smith, and the records of the judgment rendered in a suit brought by the heirs, of Smith against the plaintiff. If this testimony had been objected to as immaterial, it might probably have been rejected — but this does not present a ground for reversing the judgment if it could have had no improper effect on the jury. It is to be observed, that it was the object of the defendant to shew that the south line of Capt.

John Smith’s pitch was south of the place where the trespasses were committed, and between that and the north line of the plaintiff’s possession, and that the trespass was on that pitch.

The testimony in relation to the declarations of two of the heirs of Smith, introduced by the plaintiff, was to show that this pitch, as they claimed it, was north of the plaintiff’s land; it was therefore to prove nothing further than what now appears was contended for by the defendant; but at the time it was offered, to wit, before the plaintiff had made out his case, it was obviously proper for the plaintiff to prove that this pitch lay north of his land.

The plaintiff then proved, that the heirs of Smith caused a survey of their pitch to be made, apd that survey having interfered with the possession of the plaintiff, caused an action of ejectment to be brought against the plaintiff to recover for that part of the land where the surveys interfered, in which action judgment was rendered in his favor. The effect of this judgment according to our statute was corn-elusive as to the title between the heirs of Smith and the plaintiff.

It was already in evidence, that a great part -of the land which had been surveyed -as the John Smith pitch, lay north of the possession of the plaintiff; that the action was commenced by the heirs of Smith before the statute of limitations had protected the plaintiff in his possession, if his possession was on that pitch ; and as there was no evidence that the heirs of Smith had ever deeded this land to the plaintiff, the evidence offered tended to show that the line of the Capt.

John Smith pitch, as between his heirs and the plaintiff, was established and confirmed as bounding on the possession of the plaintiff. If it was necessary, therefore, for the plaintiff to go into evidence of his boundaries, this testimony — to wit, the declarations oí the deceased heirs as to the location, and the record of the judgment in the action of ejectment — were pertinent, proper, and at least prima facie, if not conclusive evidence, as to the line between them. The inquiry then will be, whether the testimony offered by the defendant and rejected by the court was properly excluded.

We are to take it for granted here, that all the testimony on this point, which the defendant could procure, was offered; and it is very evident that it was wholly insufficient to establish the point which he was endeavoring to establish. The first evidence should have been, to have shown a pitch or survey actually made; and'it is Worthy of consideration, whether any thing else could ayail him, when he was endeavoring to question a line unquestioned by those in interest. The-evidence which was offered was, 1st. The plan of the town; 2nd. Declarations of John Smith and his two sons, now deceased; 3d.

The existence of an old line. There was no pertinency in any part of this testimony, taken together or separately. The plan of the town, in itself, would prove nothing relevant to the issue. For some purposes, it might have been evidence. If it had been made from actual surveys, which were lost, it would afford evidence of the location, and if acquiesced in, might be evidence of a location and also of a division jn fact; but it could not be received in evidence to prove the length or breadth of the lots.

Moreover, testimony had already been given, that a survey, purporting to follow the plan, had been made, and that that survey interfered with the plaintiff’s claim. This, of itself, was sufficient evidence for that purpose, and rendered the introduction of the plan wholly unnecessary. The declarations of Capt. Smith and his children were inad-missable on several grounds. The declarations of persons in interest in their own favor can never be given in evidence. It is to be observed that they were not offered for the purpose of proving any particular boundary or line, but that Capt.

Smith and his children owned or claimed land south of the plaintiff’s line. It is obvious that their declarations or claim could not establish their right; and further, their claim had once been successfully resisted by the plaintiff when they attempted to enforce it against him. As to the existence of an old line, this also was already in evidence by the testimony of Mr. Ames; but the existence of this line did not tend to prove that it was made for a line of the Smith pitch, or that any such pitch was made; nor was there any offer to show by whom or for what purpose it was made.

The whole evidence, then, was properly rejected as wholly insufficient for the purposes for which it was offered by the defendant, of proving the fact which the defendant wished to establish. Indeed it seems that most of it was already in evidence on the part of the plaintiff, and the rejection of it when offered by the defendant was no more than an expression of the opinion of the court upon its sufficiency for the purposes contended for by the defendant, and we think the county court were correct in their views upon the subject. The judgment of the county court is therefore affirmed.