Curtis v. Aaronson.

lands upon which the cutting was done and which they claim under a later survey, known as the Heisler survey. The parties to the controversy are agreed as to the beginning point of the Jones survey, and on the lines of course to the end of the fifteenth course, and the termination of that course at an established monument described in the survey as a pine tree by Egg Harbor road, marked in letter W. The corner is now described by a small stone marked with letters C N at the foot of the pine tree. From this monument the survey calls for its sixteenth course-south, twenty-four degrees east, twenty-nine chains to a corner; then seventeenth, south, sixty-five degrees and fifteen minutes west, one hundred and fifty-one chains and fifty links to a pine tree marked letters A I, standing on the east side of a branch called Shoal branch; thence down the several courses thereof, etc.

[Omitting further statements and minor points.]

The third class of exceptions relates to the overruling and withdrawal from the jury of the evidence of declarations of deceased persons with reference to the corners and boundaries in dispute in the case. The ground of the exclusion of this testimony was that such declarations were made after controversy had arisen touching the questions at issue in that suit.

The testimony shut out under this ruling was hearsay, and would, on that ground, have been properly excluded under the general rule against the admission of hearsay evidence, unless it comes under some exception permitting testimony of this character in matter of boundaries.

James Lippincott, one of the witnesses, was allowed to testify. that Thomas Haines and Joseph R. Hulme had conversed with witness about thirty years before the trial, concerning the location of the AI monument. And Hulme, in the conversation with him, stated that the A I stone (claimed by plaintiff) was a corner of the Jones mill survey. That Haines, in the conversation with witness had with him, "told him the same in substance, that the A I stone was a corner to the original Abraham Jones survey." There was other testimony of the same character. Neither Hulme nor Haines was ever the owner of or in possession of the land in controversy. The conversati on related was not on or near the lands, nor while declarants were engaged in any act concerning the disputed line or The testimony was received under the defendant's objection that it was hearsay evidence.

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VOL. LX-74

Curtis v. Aaronson.

If the evidence received was competent proof of the fact declared by these aged persons, it covered a very important point of inquiry in the case.

There was no possibility of disproving the declarations; and the defendants were bound up to their unqualified acceptance, without power to go deeper, by cross-examination, than the circumstances attending the conversation which evolved the statement.

It is said, on behalf of this evidence, that it is admissible under an exception to the general rule excluding hearsay, which permits proof of boundaries by ancient reputation.

; Such declarations seem to me, not to belong to that class of evidence.

It is familiar practice to receive evidence of the declarations of parties in the possession of lands as owners, made against their interest, to bind such owner and those claiming under them. Van Blarcom v. Kip, 2 Dutch. 351; Horner v. Stillwell, 6 Vroom, 310.

The declarations of such owner when engaged in pointing out his boundaries, as well as the declarations of surveyors and others acting in the same manner under competent authority, would be admissible when the act was one relevant in proof, as of the res gesta, if such declaration gave character to the act proved. But the practice of receiving evidence like this in question, on deliberation, in our trial conrts is unfamiliar, and we are unable to find any authority for its admission in the reported cases in our State. Ten Eyck v. Runk, 2 Dutch. 513, is a decision against it.

Some countenance for its admission is claimed, under the language used by Chief Justice GREEN, in deciding Opdyke v. Stephens. "Boundaries," he says, "may be proved by every sort of evidence that is admissible to prove any other fact; actual occupation, ancient reputation, the admission of the party in possession against his interest, etc." Doubtless proof of boundaries by ancient reputation has a place in the law of evidence. But the learned chief justice was not then attempting to point out the conditions requisite to the admission of such evidence.

The admissibility of evidence of common reputation, to prove ancient facts of a public or quasi public nature, is a recognized exception to the rule excluding hearsay evidence.

In England, on questions of ancient public boundary, this source of evidence was commonly resorted to. Knowledge of such public matters was supposed to rest in the possession of the public, because

Curtis v. Aaronson.

of their interest therein, and in any litigation touching such subject the parties to it had a common resort for ascertaining the truth. And there it has not been infrequent, where private lines in dispute were coincident with public or quasi public boundaries, to admit evidence of reputation in determining the private right.

The rule, to the same extent, has general prevalence in the States. of this country. 1 Greenl. Ev. 145; Whart. Ev., §185; Regina v. Bedfordshire, 4 E. & B. 535.

No such exception to the general rule has ever been recognized in England in respect to the determination of mere private boundaries, for the reason that such private interests could not be matter of knowledge with the public, or of any public interest or concern.

It has therefore been the course of the courts there to entirely exclude traditionary evidence in suits concerning private lines and monuments. Outram v. Morewood, 5 T. R. 121; Didsbury v. Thomas, 14 East, 323 and cases cited in note; Clothier v. Chapman, 14 East, 331; Dunraven v. Llewellen, 15 Q. B. 791.

In some of the American States the rule excluding hearsay testimony is, in this line of fact, to some extent departed from, and traditionary evidence is received to establish private boundary. It has been permitted, under color of making proof by ancient reputation, to give the declarations of third persons, strangers to the title, made when not engaged in any provable act, such declarations. being recitals of past acts and doings of the declarant, or expression of opinion on matters exclusively pertaining to the rights of others. The reception of such evidence is confessedly in derogation of the established rules of evidence under our system, and is justified only on the ground of an alleged necessity. It is needless to cite these cases, as they are fully referred to in, the text-books in common But the decided weight of authority in the country, and upon the solid ground of reason and principle, is against the admissibility of evidence of this character. The cases decided in the courts of Massachusetts illustrate and enforce what is believed to be the true rule. There traditionary proof is received in matters of private lines only when the boundary in question is a public or quasi public one, with which the private right is coincident.

use.

Proof of declarations of persons since deceased, in respect to private boundaries, to be admissible in evidence, must have been tnade by a declarant in possession as owner at the time, and while engaged in pointing out the boundary in question, and such decla

Curtis v. Aaronson.

rations need not be against interest or in disparagement of title; they are received when nothing appears to show an interest to deceive or misrepresent. Daggett v. Shaw, 5 Metc. 223; Bartlett v. Emerson, 7 Gray, 174; Ware v. Brookhouse, 7 Gray, 454; Long v.

Colton, 116 Mass. 414; Whart. Ev. 191.

The rule in Massachusetts is approved in the Federal courts. Hunnicut v. Peyton, 102 U, S. 333, 363.

It may not, in every instance, be readily determinable whether a disputed boundary is of such public character as to permit evidence of reputation concerning it. In the case of lines of counties, towns, townships, highways, large water-courses and the like, there can be no doubt. But there may be lines and monuments of a less marked public character, and yet by reason of their relation to numerous minor titles and land divisions, a local public interest may arise, and a consequent knowledge in the neighborhood concerning them may be readily supposed to exist. Such cases, it is believed, come within the rule.

But we think the subject-inatter of investigation in this case is not shown to have such quasi public quality. It is strictly of a private nature.

In such cases, recitals of fact not made by one in possession as owner and qualifying such possession, not made by an owner against interest, not made by one in the performance under proper authority of some provable act in respect to such boundary, and qualifying and characterizing such act, but being the mere voluntary statement of a stranger, not under oath or in presence of parties, cannot, under any rule of reason or safety, be regarded as competent testimony upon which to determine private title to lands, and whether made ante or post litem motam, are equally objectiona ble and illegal; and while the courts of some States have, as it would seem, been willing to receive such testimony, in this State we have not gone so far.

The case of Ten Eyck v. Runk, cited above, decided in the Court of Errors of this State, in 1853, was supposed to have ruled adversely to the admission of this class of testimony in matter of private right. The case was decided when Chief Justice GREEN was a member of that court, and the language used by him in Opdyke v. Stevens, read in the light of this case, does not lead to the belief that he held a different view of the rule of evidence in question.

Curtis v. Aaronson.

The court below, in overruling the evidence of Lippincott and others of the class, committed no error, but the judgment should be reversed, and a new trial ordered, for error in the direction of the court below, above pointed out.

NOTE BY THE REPORTER.- See to the contrary Whitehurst v. Pettipher, 87 N. C. 179; s. c., 42 Am. Rep. 520. To the contrary also see Smith v. Headrick, 93 N. C. 210; Bethea v. Byrd, 95 N. C. 309; s. c., 59 Am. Rep. 240; Kinney v. Farnsworth, 17 Conn. 355; Merrian v. Ward, 1 W. & S. 68; McCausland v. Fleming, 63 Penn. St. 36; Sasser v. Herring, 3 Dev. L. 310; Beard v. Talbot, 1 Cooke (Tenn.), 142; Smith v. Nowells, 2 Litt. 159; Great Falls v. Worster, 15 N. H. 412; Wood v. Willard, 37 Vt. 386.

"If no certain monuments can be found, nor any data to determine courses and distances, a lesser degree of testimony may be resorted to; and long-continued occupancy and acquiescence, even reputation and hearsay as to boundaries, may have weight." Nye v. Biemeret, 44 Wis. 104.

"That boundaries may be proved by hearsay testimony is a rule well settled." By MCLEAN, J., Boardman v. Lessee of Reed, 6 Pet. 328.

In Long v. Colton, 116 Mass. 414, the court said: "In Bartlett v. Emerson, 7 Gray, 174, it is held that to be admissible such declarations must have been made by persons 'now deceased, while in possession of land owned by them and in the act of pointing out their boundaries, and when it appears to show an interest to deceive or misrepresent. The declarations offered and rejected at the trial do not come within the exception thus defined to the rule by which hearsay is excluded. The decisive objection to their competency is that they do not appear to have been made while in the act of pointing out the Ioundaries of the declarant's land. This is an element which cannot be disregarded, especially when the question is one of private boundary. The declaration derives its force as evidence from the fact that it accompanies an act which it qualifies or gives character to. The declaration does not appear to have been offered for the purpose of establishing a boundary by traditionary evidence or reputation. Such evidence has sometimes been said by American courts to be admissible; and in the cases from New Hampshire, cited by the defendant, it seems to be held that declarations of deceased persons, who from their situation appear to have had the means of knowledge, and who have no interest to misrepresent the facts, are admissible to establish private boundaries, altough not made on the land. Smith v. Forrest, 49 N. H. 230, 237; Great Falls Co. v Worster, 15 N. H. 412, 437. But by the current of authority and upon the better reason, such evidence is inadmissible for the purpose of proving the boundary of a private estate, where such boundary is not identical with another of a public or quasi public nature. 1 Greenl. Ev., 145; 1 Phil. Ev. (N. Y. ed., 1849) 241, 242; Cowen & Hill's Notes; Hall v. Mayo, 97 Mass. 416."

Wharton (Ev., § 191) says, 'such declarations should only be received when made coincidentally with pointing out boundaries, and by parties either perfor ning business duties at the time or having no interest to subserve in making the defatious. Citing Long v. Colton, supra.