Camp v. Camp
| Decision Date | 21 October 1887 |
| Citation | 10 A. 748,59 Vt. 667 |
| Parties | SARAH M. CAMP, ADM'X, v. HARLEY W. CAMP |
| Court | Vermont Supreme Court |
TRESPASS on the freehold. Plea, general issue, April Term 1887, TAFT, J., presiding. Verdict and judgment for the plaintiff. The case appears in the opinion.
Reversed and remanded.
H. M McFarland, for the defendant.
The evidence was admissible to show a submission to the fence viewers acting as a board of arbitrators. White v. Everest, 1 Vt. 181. It was clearly admissible as bearing on the question of exemplary damages. Devine v. Rand, 38 Vt. 621; Pierce v. Hoffman, 24 Vt. 525; 1 Greenl. Ev. s. 53; Pratt v. Pond, 42 Conn. 318; Johnson v. Smith, 64 Me. 553; Sedg. Dam. 330; Currier v. Snow, 63 Me. 323; Paine v. Farr, 118 Mass. 74; Earl v. Tupper, 45 Vt. 275; Burnham v. Jenness, 54 Vt. 272.
P. K. Gleed, for the plaintiff.
There was no error in excluding the evidence. Any action of the fence viewers in locating the line was void. Shaw v. Gilfillan, 22 Vt. 565; Smith v. Bullock, 16 Vt. 592. If the offer was to prove a license, then it was properly excluded, as a license must be specially pleaded. Briggs v. Mason, 31 Vt. 433; 1 Chit. Pl. 505; Allen v. Parkhurst, 10 Vt. 557. The charge as to exemplary damages was correct. Rob. Dig. p. 223.
This was an action of trespass on the freehold to recover damages for cutting and carrying away grass and building a fence on the plaintiff's land. Plea, the general issue.
The main question in controversy was the location of the division line between the lands of the parties, who were adjoining owners. The plaintiff had verdict, and the defendant excepted.
The defendant relies only upon his exception to the exclusion of the testimony offered by him, tending to show that the fence viewers of the town in which the land was located, when called out to divide the division fence between the parties, on the suggestion of the plaintiff and the assent of the defendant, established the boundary line between their lands, and that the defendant, at the request of the plaintiff, after the line was thus established and the fence divided, went on and built his share of the fence.
As fence viewers have no official authority to establish disputed boundary lines, their action in establishing the division line, as set forth in the offer of the defendant, was merely an award on an oral submission, or a parol contract between the the parties. It has long been settled in this State that a parol agreement in regard to the division line of adjoining owners or proprietors of real estate, unless followed by an acquiescence of fifteen years, is not conclusive between the parties. Campbell v. Bateman, 2 Aik. 177; White v. Everest, 1 Vt. 181; Smith v. Bullock, 16 Vt. 592.
As a contract by oral submission and award stands on the same ground as any other oral contract, an award on an oral submission as to the division line between adjoining proprietors is not conclusive between the parties unless followed by an acquiescence of fifteen years. Smith v. Bullock, supra. Such a contract is regarded as within the Statute of Frauds. Judge REDFIELD, in the case last cited, says the decisions are to that effect in Massachusetts, Maine and Connecticut, and that the English reports recognize the same doctrine, although a contrary rule has obtained in some states.
The defendant's offer was not accompanied with an offer to show that the parties had acquiesced in the boundary line established by the fence viewers, for fifteen years; the testimony was therefore inadmissible as bearing upon the question of the location of the division line; nor was it admissible as tending to show license; for the exceptions do not show that the defendant, by his plea or otherwise, claimed to have cut the grass and built the fence under a license from the plaintiff.
But as it does not appear, from the bill of exceptions, for what purpose the excluded testimony was offered, if it had any legal tendency to prove or disprove any material issue or question to be determined by the jury, as shown by the bill of exceptions, we must hold that it was improperly excluded. Green v. Donaldson, 16 Vt. 162.
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