Hadley v. Howe

46 Vt. 142

Opinion

The opinion of the court was delivered by

Barrett, J.

What a deceased person has said about a boundary with which he was familiar, has been permitted to be proved under certain fixed conditions. Those conditions'are not to be proved by what he said ; they are to bo proved by other means. One of the conditions is, that it shall be shown that ho had knowledge, both of the line and of the marks relied o-, at the time of the saying to be proved. In this case, the only evidence that he knew of, or had seen, the fence in question, was what ho said, as testified by the defendant. If Mr. Kittridge and the defendant had been together on the premises, and the fence the subject of their observation ; or if it had been shown that he had built the fence; or otherwise that he knew of its existence and location relatively to the two lots separated by the line in controversy ; one of the conditions of the admissibility of the evidence in question would have been established

The fact that Mr. Kittridge said to Howe, that he had seen the fence, was not evidence that he had in fact seen it. It was merely hearsay, without any of the reasons or conditions upon which such evidence is admissible.

The cases cited of Wood v. Willard, 37 Vt. 386 ; Powers v. Silsby, 41 Vt. 288; Miller et al. v. Wood et al. 44 Vt. 378, show the view in which the court regard sayings of deceased persons as proper evidence on questions of boundary, as marked by monuments. A recent case in Essex county, not yet reported, shows the same, and is to the same effect as those above named:

The judgment is reversed, and cause remanded.