Allen v. Kidd

• Decision Date: 24 February 1908
• Citation: 197 Mass. 256,84 N.E. 122
• Parties: ALLEN v. KIDD.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

197 Mass. 256

84 N.E. 122

ALLEN v. KIDD.

Supreme Judicial Court of Massachusetts, Essex.

February 24, 1908

COUNSEL

Coulson & Murphy, for plaintiff.

John P Sweeney, Harry R. Dow, and Louis S. Cox, for defendant.

OPINION

LORING J.

This is an action of tort quare clausum fregit, in which the defendant had a verdict, and the case is here on exceptions taken by the plaintiff.

The plaintiff and defendant were the owners of adjoining lots, as shown on the accompanying plan:

(Image Omitted)

The width of the defendant's lot was 41 feet in place of the 36 feet shown on the plan; 5 feet of the Wright lot having been bought by her after she bought the Kidd lot, 36 feet wide, shown on the plan.

The plaintiff's contention was that the defendant's building on Broadway was north of the division line between the two lots; that the building was 1 inch wider than the defendant's lot and covered 10 3/4 to 12 inches of the plaintiff's land on the Broadway end of the building; and that when the building reached Cross street the northerly corner of the building was on the division line or slightly within it.

Two engineers testified on behalf of the plaintiff that the defendant's building was over the division line. One said that it was 10 3/4 inches over and the other that it was 12 inches over. The first measured from Manchester street and checked the result so obtained by the fences he found on the ground. The other got his result from the fences and checked it by measurements from Manchester street.

The plans of both engineers show a stone bound fixing the center line of Manchester street. The stone was put in in 1875 eight years after deeds of the several lots shown on the plan were made by the original owner of the whole tract.

One of the defenses set up by the defendant was that the side lines of Manchester street could not be ascertained with precision. Manchester street was conceded to be an ancient way, in existence before Lawrence became a city.

The defendant was allowed against the plaintiff's exception to prove by the present city engineer of the city of Lawrence what the note book of one Hatch showed as to the placing of the stone bound in the center of Manchester Street in 1875. Hach was an assistant engineer in the city engineer's office at that time, and it appeared that both he and one Coolidge, who was city engineer at the time, were living. Neither was called as a witness.

The present city engineer testified 'that it is customary to keep all records of that nature in the city engineer's office as public records; that the plans made from these minutes are also kept as part of the records of the engineer's office, but that all the records taken on the street are not put on the plans because they incumber them too much.' He was then allowed to testify in answer to the question: 'How was the center line of Manchester street determined?' 'I found on the notes there was a measurement of 25 feet taken from the northwesterly cornor of Manchester and Washington streets. At that point there is an angle in the street, and I found by calculations from angles and measurements given at the corner of Broadway and Manchester streets, * * * from these notes, that the center line as laid out from the ground was undoubtedly measured from the fence line. I found that by calculation from the northwest cornor of Broadway and Manchester streets, the distance is 25.6 feet from the fence line, and from the southwesterly corner the calculation is 25.3 feet, making a total distance between the fence lines across Manchester street, on the westerly line of Broadway, 50.9 feet.'

1. We are of opinion that this evidence was wrongly admitted. But we are also of opinion that the plaintiff was not harmed by its admission.

The defendant's contention is that the note book in question is made a public document by Rev. Laws, c. 35, § 5, and was admissible as a public document.

But Rev. Laws, c. 35, § 5, does not make the documents therein described public documents. All that that act does is to provide that 'in construing the provisions of this chapter and other statutes, the words public records' shall include the documents there described.'

In the second place, if Hatch's note book was a public document it was not admissible. There is no rule of evidence which makes public documents competent testimony of the truth of the facts therein stated. The note book in question was used as testifying to the facts therein set forth just as Hatch (who was alive) would have testified to those facts had he been put upon the stand.

The defendant has sought to overcome this difficulty by citing Gurney v. Howe, 9 Gray, 404, 69 Am. Dec. 299. That case decided that an official record of a fact which it is the duty of a public officer to perform and record can be introduced in evidence as testimony of the truth of the facts therein stated. To the same effect see Kennedy v. Doyle, 10 Allen, 161, 163; Pells v. Webquish, 129 Mass. 473. But we know of no law which makes it the official duty of a city engineer to fix on the ground the side lines of all or such city streets as he thinks wise, and to make a record of the line so fixed.

The plaintiff however was not harmed by the admission of this evidence. It confirmed the accuracy of the plans of the plaintiff's engineers. It did not disprove or tend to disprove them in any particular. Manchester street is shown on the plaintiff's plan to be 50 feet wide. If it was, it would necessarily measure more between the fences on the side lines of Broadway which intersects it at a greater angle than a right angle, and from these plans it would appear to be about 50.9 feet between the fences on the angle in question.

2. We are of opinion that the exception which was taken to the charge of the presiding judge must be sustained.

The presiding judge began his charge by a reference to some litigation between two farmers as to a division line where the land was of little or no value but the farmers had been ruined by paying lawyers to try the case. He added that the farmers had their constitutional rights. He then went on to say that the action before them was an action of trespass and that if the jury...