Lyman v. Brown

• Decision Date: 05 December 1905
• Citation: 62 A. 650,73 N.H. 411
• Parties: LYMAN v. BROWN.
• Court: New Hampshire Supreme Court

62 A. 650

73 N.H. 411

LYMAN

v. BROWN.

Supreme Court of New Hampshire. Carroll.

Dec. 5, 1905.

Transferred from Superior Court; Stone, Judge.

Trespass quare clausum by Frank E. Lyman against Alphonzo D. Brown. Verdict was rendered in favor of defendant, and the cause was transferred to the Supreme Court on exceptions to the overruling of defendant's motion to set the verdict aside. Exceptions overruled.

The plaintiff moved that the verdict be set aside and that judgment be ordered in his favor, for the following reasons: (1) The verdict is against the law and the evidence; (2) the Jurors did not keep together at the view, and were spoken to for that reason by the sheriff who had them in charge; (3) during the view of the line claimed by the parties, some of the jurors drank cider as it was offered to them; (4) before the evidence was fully heard, one of the jurors expressed an opinion in favor of the line claimed by the defendant; (5) during the trial the defendant's counsel, in the hearing of the jury, made a statement, to which exception was taken, relative to the boundaries of a lot of an adjacent owner, after evidence upon that point had been offered and excluded by the court; (6) during the trial certain persons, in the hearing of the jury, made remarks relative to the case which were not objected to by him, and continued until stopped by the sheriff. A hearing was had upon the motion, and certain facts were found which appear in the opinion. The motion was denied, and the plaintiff excepted.

Josiah H. Hobbs, for plaintiff. Arthur L. Foote, for defendant.

BINGHAM, J. The plaintiff owns a lot of land situated in Madison, and the defendant's wife owns a lot in Tamworth, adjoining the plaintiff's lot on the west. The title to both lots was derived from the same grantor. The boundary between the towns is a straight line. It is also the division line between the lots. The plaintiff claimed at the trial that the town line was located on the ground about seven rods west of where the defendant claimed it to be. The territory upon which the alleged trespass was committed is located between the lines thus claimed. The defendant justified the acts complained of as the agent of his wife. The jury were instructed that the only contention between the parties was in respect to the location of the original boundary line between the towns; that if it was located where the plaintiff claimed it was, the defendant was a trespasser; but if it was located where the defendant claimed, he was not. No exception was taken to this instruction, and none properly could have been. The defendant pleaded the general issue. Under that plea, as it is now understood in this state, the title to the disputed territory could be determined. Tabor v. Judd, 62 N. H. 288, 290. Since the decision in Tabor v. Judd, the necessity of a...