Clark v. Gallagher

• Citation: 74 Vt. 381,52 A. 539
• Parties: CLARK et al. v. GALLAGHER.
• Decision Date: 03 June 1902
• Court: United States State Supreme Court of Vermont

52 A. 539

74 Vt. 381

CLARK et al.

v. GALLAGHER.

Supreme Court of Vermont. Orleans.

June 3, 1902.

Exceptions from Orleans county court; Tyler, Judge.

Action by John C. Clark and Vincent Clark against Edward Gallagher. Judgment for plaintiffs, and defendant brings exceptions. Exceptions overruled. Petition by defendant for a new trial on the ground of newly discovered evidence. Granted.

Argued before ROWELL, MUNSON, START, WATSON, and STAFFORD, JJ.

W. W. Miles, for plaintiffs.

Horace Graham and J. W. Redmond, for defendant.

WATSON, J. The plaintiffs are the owners of lot No. 66, and the defendant of the lot immediately east of it (No. 65), in the town of Albany. The issue as to the plaintiffs' right of recovery was the location of the original lot line between these two lots, as the lots in the town were originally laid out. There was no question of adverse possession in the case. The lots in the town were all surveyed and laid out as early as 1788. In going from north to south, now as then, one passes 18 tiers of lots which run east and west, each tier containing 12 lots. The defendant claimed, and his evidence tended to show, that the original northwest corner of lot 65 is marked by a spruce stump, and that from this stump south the whole original line of the lot is indicated by a line of marked trees; while the plaintiffs claimed, and their evidence tended to show, that the original west line was practically parallel with said line of marked trees, but 27 rods east of it. As tending to show that said line of marked trees was the original line between the two lots, the defendant offered in evidence a certified copy of a quitclaim deed dated August, 1860, and recorded January 12, 1861, purporting to convey 10 acres out of the northwest corner of lot 65, and, in connection therewith, offered to show that the northeast boundary of the piece thus conveyed was marked at the time of the conveyance, which marks continued to exist at the time of the trial; that, with the line of marked trees as the west line of lot 05, this deed would do what it purports to do, namely, grant 10 acres of lot 65, but, with the line as claimed by the plaintiffs, the deed would convey little more than one-half of that amount. The grantor named in the deed was one of defendant's lineal grantors, and is dead. In excluding the evidence offered, it is urged that there was error. Such a deed was held in Baker v. Sherman, 73 Vt. 26, 50 Atl. 633, to imply no title or claim of title in the grantor. The description in the deed does not locate any line or corner of lot 65, or of the land attempted to be conveyed. The offer does not state who marked the northeast boundary of the latter. It may have been done by some one who had knowledge or evidentiary information regarding the location of the west line of the lot, or it may not. Without expressing any opinion whether the evidence would have been admissible had it been included in the offer that the marks were made by a person having such knowledge or information, clearly, as the offer was made, it was properly excluded.

Albert Norcross, a witness called by defendant, testified in chief that he lived a short time on lot 65, and many years on lot 64; that some time during his residence on the latter lot the corners of 65 were pointed out to him, and that the spruce stump marked its northwest corner; that the line of marked trees indicated the west line of the lot, and that he helped Mr. Taylor, the defendant's surveyor, make certain surveys extending southerly on the line of marked trees between lots 65 and 66 and 55 and 56 to the Lost Nation road, and thence on this road southerly between lots 41 and 42. Subject to exception, the plaintiffs were allowed in cross-examination, and as such, to show by the witness that one Smalley lived on lot 42, and that his land which he bought of one Babcock's estate Included easily a part of what defendant claims is lot 41, and that Babcock owned, occupied, and cleared the same strip of land east of the lost Nation road as long ago as the witness could remember. The direct testimony of the witness tended to show that his knowledge of the marked trees as indicating the west line had extended over many years. If believed by the jury, he was a very important witness for the defendant in support of his contention. It was proper to cross-examine him fully regarding the subject-matter of his examination in chief, and in the light of all its bearings. Stiles v. Estabrook, 66 Vt. 535, 29 Atl. 961. If, within the knowledge of the witness, the owner of lot 42 had for many years occupied as such owner, and cleared a strip of land as far east of the marked tree line and of the Lost Nation road as the line claimed by the plaintiffs, it was within the scope of proper cross-examination to show it. It had a bearing upon the basis of his knowledge that the marked trees and the Lost Nation road indicated the true line.

W. H. Taylor, an expert witness on surveying, was called by the defendant. In direct examination he testified that he had done surveying for the defendant on two occasions, several weeks apart, for the purpose of locating the west line of lot 65. He then testified to some of the different surveys and measurements made by him on those occasions, but not to all of them. Subject to exception, the plaintiffs were permitted to show by the witness, in cross-examination, that he at...