Mineral Development Co. v. Kentucky Coal Lands Co.

• Decision Date: 10 October 1918
• Docket Number: 3104.
• Citation: 259 F. 118
• Parties: MINERAL DEVELOPMENT CO. v. KENTUCKY COAL LANDS CO.
• Court: U.S. Court of Appeals — Sixth Circuit

259 F. 118

MINERAL DEVELOPMENT CO. v. KENTUCKY COAL LANDS CO.

No. 3104.

United States Court of Appeals, Sixth Circuit.

October 10, 1918

W. B Dixon, of Louisville, Ky., and E. L. Worthington, of Maysville, Ky., for plaintiff in error.

Ed. C O'Rear, of Frankfort, Ky., for defendant in error.

Before KNAPPEN, MACK, and DENISON, Circuit Judges.

DENISON Circuit Judge.

A former phase of the question now involved was before us and is reported in Mineral Co. v. Tuggles Co., 151 F 450, 81 C.C.A. 34. The present case was ejectment by the Kentucky Company against the Mineral Company. Upon the first trial of this case, a verdict was directed for defendant. The judgment entered on this verdict was reversed by this court (Kentucky Co. v. Mineral Co., 219 F. 45, 133 C.C.A. 151); and, upon the new trial, there was a submission to the jury and a verdict for the plaintiff. The defendant brings this writ of error. The parties will be named as they were arranged below.

Defendant traces an unbroken title to several surveys and Kentucky grants, the earliest of which were made in 1882. Plaintiff owns whatever title was conveyed by a 12,000-acre grant to Isom Stamper, made in 1848, and based upon a survey made in 1846. The whole dispute is as to the proper location of this Isom Stamper survey. If plaintiff's theory of location is correct, its title to the premises in dispute is clear. The general facts are fully stated in the opinion in 219 F. 45, 133 C.C.A. 151, to which reference should be made.

1. Aside from points directly involving the general merits of the case, the assignments of error present only a single question-- one of evidence. It is that part of a certain deposition by Alexander Stamper should not have been received for the plaintiff. Before the first trial, the evidence of Alexander Stamper, as a witness for defendant, was taken by deposition, and the whole deposition was used by the defendant upon the trial. Before the new trial, the witness died, and the plaintiff, this time, read his deposition in evidence. Alexander Stamper was a son of Isom Stamper, who had died before this suit was commenced. A reference to the former opinion will show that the controlling question is whether the third, fourth, and fifth calls of the survey and grant run along certain ridges to Eagle Gap, or whether these lines entirely leave the ridges at a point five or six miles short of Eagle Gap. As bearing on this, it was important to locate the second and third corners. Alexander Stamper testified that his father, Isom Stamper, had, 50 years before, pointed out to him the location of these two corners. This testimony by Alexander Stamper was clearly hearsay, and it is argued that its admission was error because it did not pertain to a declaration against interest, and, therefore, was not within the exception to that general rule which forbids hearsay testimony.

We cannot consider the question thus argued. We say this, because the point was not saved by proper objection and exception. This class of testimony is excluded, not because it is irrelevant or immaterial, but because it is incompetent. Hearsay testimony is excluded because it is hearsay, and not for any other reason. It is therefore essential that, if it is to be rejected, it should be objected to for that reason. Diaz v. U.S., 223 U.S. 442, 450, 32 Sup.Ct. 250, 56 L.Ed. 500, Ann. Cas. 1913C, 1138. We find no such objection. The deposition was offered by plaintiff, and its counsel read introductory portions. When the question was asked where the corner stood that had been pointed out by the witness' father, the record says: 'Defendant objects, and objects generally to the introduction of this testimony by plaintiff, as it is not offering this deposition, and the court has made a different ruling in this case from the other. (After a delay:) The court here rules that plaintiff may read to the jury the direct testimony of Alexander Stamper, as given in his deposition offered yesterday. Defendant excepts to this ruling.'

Thereafter, as to specific questions, the record shows:

'Defendant objects, but the court overrules the objection, and the defendant excepts.'

Upon this point, as to these corners, no other objection or exception was made. We have frequently held that a mere general objection is no sufficient basis for an exception or an assignment of error, and that an objection which does not direct the court's attention to any good reason therefor does not support a claim of reversible error, even though, when the case reaches this court, a good reason has been thought of. Shea v. United States, 251 F. 433, 163 C.C.A. 451, decided August 3, 1918, and cases cited. There might be cases where the proper ground of objection, first specified on review, would be so obvious that the reviewing court would assume it to have been in the mind of the trial court; but not so here, where the objection was based upon two reasons which were specifically stated and each of which was obviously insufficient.

The assignment of error based on the admission of this part of the Alexander Stamper deposition must be overruled.

2. While it is insisted that the intent of the surveyor, in using the language selected by him, was not a proper thing to be considered by the jury at all, it is further claimed that, if there was to be any submission, it should have been accompanied by an explanatory charge making clear to the jury the rules of law affecting the conclusion it was to draw, and that it was error to omit such explanation. If there were merit in this complaint, it should not be considered, because no exception was taken to the charge in this particular, nor was the claim that there ought to be a fuller explanation brought to the attention of the trial judge.

3. The court charged the jury that it might find for plaintiff, if it found that the third, fourth, and fifth boundaries were actually marked upon the ground along the summit of the ridge to Eagle Gap as part of the survey; and it may be that the verdict rendered for the plaintiff rests upon the theory that such marking did occur. We designate this as the theory of actual location as distinguished from the theory of constructive location, later considered. The rightfulness of this charge is attacked because defendant says there was no evidence tending to support such a theory; and the existence or absence of such evidence is therefore determinative on this point. We conclude that the judge was bound to submit the issue to the jury as he did; and, in reaching this conclusion, we wholly exclude several more or less persuasive items of evidence which the trial court received but later struck out. The record must be considered as it was at the time of the charge to the jury, and it is therefore immaterial to consider whether the court was right when he received this evidence or right when he later excluded it.

Viewing the record thus restricted, plaintiff starts with distinct and clear evidence tending to show that there was a marked line along the trees upon the summit of these ridges for the whole of the six or seven miles, as early as 1865; that several witnesses saw these marks before 1890; that at all these times, the marks appeared to be very old; that the marks on the beginning corner were of peculiar size and shape (made by a tomahawk) and the line of old marks on the top of the ridges had the same peculiar character; and that there was no other known survey which could have resulted in the marking of this line at so early a date as was indicated by the times when it was seen and its then apparent age. This testimony is to be interpreted in the light of all the circumstances hereafter mentioned tending to show that the line along the ridges was the one which the surveyor was trying to describe. If this were the entire record, it would hardly be disputed that there was enough to go to the jury to support plaintiff's theory; but defendant says that two other items of evidence destroy all its substantial basis.

The first item is that it appears that the surveying party came back from their work at the end of the day, and that there had not been time enough to run this line. This evidence, if it were wholly accepted as complete and accurate, would not be decisive. The marking of this line along the ridge did not require the services of a surveying party. The surveyor might have done it, or caused it to be done for him, at any time before he closed the transaction by signing and delivering his certificate, and there is nothing to show how much time might have intervened.

The other item is that plaintiff's surveyors, who went over the ground at a comparatively late date and who also testified to observing this old line, and that it appeared old enough to have been made before 1850, identified the trees which bore these old marks, and that, from certain ones of the trees so identified, blocks were later cut out and brought into court by defendant; and it was claimed to be thereby demonstrated, by counting the annual rings, that the marks on these trees, estimated by plaintiff's surveyors to be more than 60 years old, were, in fact, only about 30 years old, dating back from the trial in 1916. If it were to be conceded that the evidence of plaintiff's surveyors as to what they saw upon their comparatively recent trip was the strongest item of proof to support plaintiff's theory and that this specific testimony had been wholly overthrown by the evidence of the blocks, still, this would not be decisive. There would remain the evidence of the several witnesses who say they actually saw such a marked line at a date earlier than these particular marks were made (if it is true that they were only 30 years old) and that it was then a very old line;...