Goodwin v. Fall

• Decision Date: 25 January 1907
• Citation: 66 A. 727,102 Me. 353
• Parties: GOODWIN v. FALL.
• Court: Maine Supreme Court

66 A. 727

102 Me. 353

GOODWIN

v. FALL.

Supreme Judicial Court of Maine.

Jan. 25, 1907.

Exceptions from Supreme Judicial Court, York County.

Action by Newell Goodwin against Charles W. Fall. Verdict directed for defendant, and plaintiff excepts to the rulings of the court. Exceptions sustained.

Trespass quare clausum to recover damages for cutting wood and timber on land claimed by the original plaintiff, Newell Goodwin, who died after the action was commenced and before the trial thereof, and the action was prosecuted by his executors. Plea, the general issue, with a brief statement alleging title in the defendant to all the growth cut by him by virtue of a deed from said Newell Goodwin to the defendant.

Tried at the January term, 1906, of the Supreme Judicial Court, York county. During the trial the plaintiff offered certain evidence, which was excluded by the presiding justice. To this ruling the plaintiff excepted. At the conclusion of the evidence the presiding justice "ruled, as matter of law, that the evidence presented was not sufficient to authorize a verdict in favor of the plaintiff, and directed a verdict for the defendant," and the verdict was so rendered. To this ruling the plaintiff also excepted.

The case fully appears in the opinion.

Memorandum. One of the justices sitting at the term of the law court at which this case was argued did not sit in this case, being disqualified under the statute by reason of having ruled therein at nisi prius.

Argued before WHITEHOUSE, SAVAGE, POWERS, and SPEAR, JJ.

George F. & Leroy Haley, for plaintiff. Mathews & Stevens, for defendant.

WHITEHOUSE, J. This is an action of trespass quare clausum to recover damages for cutting timber and wood on land claimed by the original plaintiff, Newell Goodwin, The plea is the general issue, with a brief statement alleging title in the defendant to all the growth cut by him by virtue of a deed from Newell Goodwin, dated October 16, 1809.

Newell Goodwin deceased after the commencement of the suit and before trial, and the action is now prosecuted by his executor.

The defendant purchased of Goodwin a certain parcel of woodland, and also "all the growth" standing on a certain other lot bounded on the north "by the above-described lot this day deeded to said Charles W. Fall, running easterly to a certain spotted yellow birch tree standing by an elm." This action of trespass grows out of a controversy respecting the northeasterly corner of the lot thus located by the description in the deed at "a certain yellow birch tree standing by an elm."

The plaintiff claims that another yellow birch tree standing within 1 or 2 rods from a "scraggy maple," about 30 rods westerly from the "spotted yellow birch by the elm," was the monument for the northeasterly corner intended and agreed upon by the parties before the deed was executed, and that Mr. Goodwin was induced to assent to the bound described in the deed by means of the defendant's positive assurance that it was only "between one and two rods" from the "scraggy maple."

With respect to the alleged acts of trespass, the case discloses the following stipulation: "It is agreed that if the line is from the place marked 'yellow birch' up by the elm, if that is the corner, there has been no trespass; that if it is down where the maple is, or anywhere between them, it is admitted that there has been a trespass."

It appears from the testimony of a surveyor, and is not in controversy, that a large yellow birch tree, at least sixteen inches in diameter, spotted on three sides for a corner, was readily found by him, in making a survey after the commencement of this suit, near a large elm at the north end of the easterly line claimed by the defendants; but about 30 rods westerly from this spotted yellow birch the stump of another yellow birch tree of about the same size, recently cut, was found at the northerly end of the line claimed by the plaintiff, within 1 rod and 22 links from the large "scraggy maple."

The testimony of J. S. Wentworth, the magistrate who wrote the deed in question from Newell Goodwin to the defendant, was offered in behalf of the plaintiff, with the following statement respecting its purpose and tendency:

"Our position is, and the evidence that we offer will tend to prove, and I offer it for the purpose of proving, that at the time the deed was prepared Mr. Goodwin gave Mr. Wentworth instructions, in the presence of Mr. Fall, to run the line opposite the maple tree marked upon the plan, and run across to the line of Orren B. Goodwin, or Goodwin's heirs, as afterwards stated in the deed; that at that time Mr. Fall stated to him that he did not think it was quite far enough to take in all of the old growth, and said, 'Why not run to the yellow birch that is near the elm, about a rod or two?' Mr. Goodwin states, "I don't remember any elm there; but I do remember a yellow birch there,' and Mr. Fall then states that there is an elm close to the yellow birch, and it is only between one and two rods from the maple. Mr. Goodwin says, 'Then, if that is so, if it ain't any farther than that, a rod or two, it won't make any difference and it may go to that point'; and that was the point we claim at which they intended to make the deed, and that Mr. Fall having made that representation—and, according to the testimony, he had walked that same forenoon over that same road—that he is estopped claiming it in any different place." The rules of evidence in equity would be the same as in law, and I do not understand that there is any difference in regard to the effect of an estoppel if a man has, by his conduct or by his declaration, misled a party to that party's disadvantage, and he ought not to be allowed to take advantage of his own wrong, and if the testimony of this boy is true that he had walked over that that forenoon by both trees, and the boy said he had, and had walked down there as the boy says he had that long distance, 25 rods and 62 links, he knew when he was making that statement that it was false, and he cannot be allowed to take advantage of it.

Upon objection by the defendant's counsel, the presiding judge ruled that this evidence was not admissible, and thereupon ordered a verdict for the defendant. The case comes to this court upon exceptions to these rulings.

The evidence of the magistrate excluded by the court does not appear to have been offered for the purpose of authorizing the jury to substitute the yellow birch tree near the "scraggy maple," for the spotted yellow birch by the elm which was clearly designated in the deed as a...