Swain v. Evans

2 Del. Cas. 65

• Court: Supreme Court of Delaware
• Decided: November 15, 1796
• Status: Published

Opinion

The Court were of opinion that Stayton could not give evidence in this cause from any knowledge which he obtained at the time he surveyed for Swain at his instance.

William Stayton. Evans’ land was connected and joined Swain’s on the survey I made for him. I plotted it for Evans, and the lines of that plot included the school-house, about thirty or forty yards. Evans seemed surprised at it and said he and Swain had agreed to set the school-house on the line, some years before.

John Short. I saw where stocks had been cut forty or fifty yards west from the school-house, the same where John Short, Sr., showed me the cart. Do not know when they were cut.

Deposition of Truit Donaho read.

John Willis. Last Spring was a year Swain accused him of trespassing on his land. Evans said, Run out your lands, and if I or my people have done so, I’ll pay you for it.

Absalom Lynch. Swain and Evans had an article of agreement when the school-house was built, in which they agreed that the school-house should be supported with wood from both. I expect the school-house was set on the line. [They] were both there.

Abraham Lynch. They agreed the school-house should be set as near the division line as they could tell at that time.

Ridgély. Trespass said to be done on a tract of land called Kimmey’s Desire. Patent produced. A patent that shows no title in the plaintiff, Swain, to Kimmey’s Desire; in patent, land called Summy’s Desire. Esp.N.P. 405, writ of trespass may be sued out either generally of specially, with or without a name, but if he gives a name to the land, he must be held to it, and his proof must correspond with his declaration. He must prove the trespass where laid.

Wilson. 6 Com.Dig. 388, where trespass lies. 2 Bl.R. 1089.

Hail. 2 Esp.N.P. 59, trespass done without fault, no action lies.

Peery. 6 Com.Dig. 369, a man may bring a trespass generally.