Argued before CORNISH, C. J., and uninterrupted possession of the property by SPEAR, HANSON, PHILBROOK, WILSON, and DEASY, JJ. Williamson, Burleigh & McLean, of Augusta, for plaintiff. Andrews & Nelson, of Augusta, for defend ant. HANSON, J. Action of trover to recover the value of certain lumber, and involving the location of the division line of lots of land situate in the town of Washington. The jury returned a verdict for the plaintiff for $476.26, and the case comes up on the defendant's general motion. The case shows that the line in dispute is known as the Ballard line, evidently an ancient base line running for miles through the Kennebec Valley. The defendant claimed: First. That his immediate predecessor, Whitney, did not cut over the line on land of the plaintiff. Second. That, if Whitney did cut over the so-called Ballard line, plaintiff did not own the land on which Whitney cut the logs, and so cannot recover. Third. What logs or lumber defendant bought of Whitney were not cut over the line and were never the property of the plaintiff. Fourth. But, even if the jury were right in finding that Whitney did cut over the line on land of plaintiff, still defendant did not receive any such amount of lumber so cut as plaintiff claims. The principal question, and one deemed most vital to the case, was: Where is the Ballard line on the face of the earth? It will serve no useful purpose to restate the evidence, and it is sufficient to say that it is clearly proved that the line claimed by the plaintiff to be the easterly line of his lot is the Ballard line, and that the cutting complained of was made on the westerly side of that line, on land owned by the plaintiff. the plaintiff and his grantors creates a presumption that formal instruments of title once existed, even if they cannot now be found. United States v. Chavez, 175 U. S. 509, 20 Sup. Ct. 159, 44 L. Ed. 255; Penny v. Central Coal & Coke Co., 138 F. 769, 71 C. rounding the case justified the jury in pre- in possession of land may maintain trover soil. Me. 504, 33 Atl. 27. In Webber v. McAvoy, 38 Cyc. 2026; Stevens v. Gordon, 87 117 Me. 326, 104 Atl. 513, this court held: "As the right to the logs depends upon the possession of the locus from which they were cut, the plaintiffs, to maintain the action, must show that, at the time of the alleged conversion, they had either actual or constructive possession of the premises. If they did not have the title, they must show actual possession; the gist of the action being the invasion of the plaintiff's possession." 38 Cyc. 2049, citing a number of cases; Smith v. Sawyer, 108 Me. 485, 81 Atl. 868. [4] The plaintiff and his predecessors in title claiming under recorded deeds, having paid all taxes for a period of more than 20 years, are protected by the provision of R. S. c. 110, § 18, against the claim herein set up under the after-acquired deeds from the heirs of Levi Turner. The statute is here quoted: Sec. 18. "No real or mixed action, for the recovery of uncultivated lands or of any undivid It was also contended by the defendant that the plaintiff had neither title nor possession of the premises, and could not there-ed fractional part thereof, situated in any place fore maintain this action. Title in defendant was not claimed until after this suit was brought, when the defendant secured quitclaim deeds to the premises from heirs of one Levi Turner, father of Merrill Turner, the first grantor in plaintiff's chain of title. There is no record of a deed from Levi Turner to Merrill Turner. The break in title, if there was one, occurred prior to August 5, 1879. Since that date it appears that the plaintiff and his grantors have been in possession under recorded deeds of the same a period of more than 35 years, had operated on the lot as they desired, without interruption, and had paid the taxes thereon. [1] In the absence of a record of a previous deed from Levi Turner to his son Merrill Turner prior to 1879, we think the long and incorporated for any purpose, shall be commenced or maintained against any person, or entry made thereon, when such person or those the twenty years next prior to the commenceunder whom he claims have, continuously for ment of such action, or the making of such entry, claimed said lands or said undivided fractional part thereof under recorded deeds; and have, during said twenty years, paid all taxes assessed on said lands, or on such undivided fractional part thereof, however said tax may have been assessed whether on an undivided fractional part of said lands or on a certain number of acres thereof equal approximately to the acreage of said lands or of said fractional part thereof; and have, during said twenty years, held such exclusive, peaceable, continuous and adverse possession thereof as comports with the ordinary management of such lands or of undivided fractional parts of such lands, in this state. This section shall not apply to actions pending in court on the twenty-seventh day of April, | 5. NEW TRIAL 168 MOTION FOR NEW nineteen hundred and seven, nor to those com- TRIAL IN SUPREME JUDICIAL COURT-ABmenced before the first day of January, nine- SENCE OF ENTIRE REPORT. teen hundred and twelve." Defendant's counsel urges that, even if the jury were right in finding that Whitney did cut over the line on land of the plaintiff, still the defendant did not receive any such amount of lumber so cut as the plaintiff claims. As with other issues involved, we have examined the record upon the question of the value of the lumber taken, and we find no sufficient basis for interfering with the finding of the jury. The entry will be: Motion overruled. Judgment on the verdict. (118 Me. 145) FARNUM v. CLIFFORD. (Supreme Judicial Court of Maine. April 30, 1919.) 1. TRIAL 191(7)-INJURIES FROM AUTOMO- An instruction that if an automobile was purchased by defendant for "general family use," etc., and the automobile was so used, etc., defendant would be liable for any injury caused by the negligence of one of the family in operating it, held properly refused as based on an erroneous assumption of testimony; the evidence showing the car was purchased "for the family's pleasure," a less comprehensive term. 2. APPEAL AND ERROR 1067 HARMLESS ERROR-REFUSAL OF INSTRUCTION. A motion for new trial on the ground of newly discovered evidence cannot be entertained, where the entire report of the evidence at the trial is not before the Supreme Judicial Court. CORNISH, C. J. This is an action on the case brought by the husband to recover for loss of services of his wife in consequence of injuries sustained by her in a collision between a carriage in which she was riding and an automobile owned by the defendant and operated by his son, John D. Clifford, Jr. The jury returned a verdict for the defendant, and the case is before the law court In action against automobile owner for in- on two exceptions, one to the refusal of the jury in a collision with a buggy wherein plain-presiding justice to give an instruction retiff's wife was riding, refusal of a requested in- quested by the plaintiff, and the other to the struction, as to defendant's liability if the au- giving of an instruction requested by the detomobile was purchased for general family use, fendant. There is also a motion for new even if it was academically correct, held harm-trial on the ground of newly discovered eviless; the trial judge having carefully and fully explained the grounds of defendant's liability for the acts of his son. dence. [1] The instruction requested and refused was as follows: "If the automobile in question was purchased by the defendant for general use of his family, of whom John D. Clifford, Jr., was a member, and the automobile was so used, and if such D. Clifford, Jr., whenever he wanted it, then use of the automobile included its use by John the defendant would be liable for any injury caused by the negligence of John D. Clifford, Jr., in operating the automobile." This requested instruction was properly refused. It was based upon an erroneous assumption of testimony. Milliken v. Skillings, 89 Me. 186, 36 Atl. 77. It was predicated upon the assumed fact that the machine was purchased for general family use includ-ed by the court with the other evidence, a ing the use by the son whenever he wanted it, different verdict would probably have been while the extracts from the evidence before rendered. If that other evidence is not beus as a part of the exceptions clearly show fore the court, that essential point cannot be that it was purchased for the pleasure of the determined. In the two cases cited by counfamily, a much less comprehensive term, and sel for plaintiff, Hill v. Libby, 110 Me. 150, that the son had no authority or permission 85 Atl. 487, and Southard v. Railroad, 112 to take or use it in connection with his pri- Me. 227, 91 Atl. 948, L. R. A. 1915B, 243, vate business. and in all other cases so far as we know, a general motion for new trial accompanied the special motion, and the entire record was before the court. That record is wanting here. It might be added, however, that the evidence under this motion falls so far short of the plaintiff's expectation, as disclosed in the motion itself, that it could not possibly affect the merits of the controversy. The entry must be: [2] Moreover, the presiding justice in his charge carefully and fully explained the grounds upon which the defendant could be held liable for the acts of his son and adequately informed the jury upon all questions of law applicable to the facts in the case. The refusal of this requested instruction, even if it were academically correct, was harmless. The jury must have found from the testimony that the son was using the automobile for his private business, and that he had no authority so to do; and they must have had a proper understanding of the case from the whole charge. Hunnewell v. Hobart, 40 Me. 31. Exception 2: [3, 4] The instruction given at the request of the defendant was as follows: Exceptions and special motion overruled. (118 Me. 168) BORNEMAN et al. v. MILLIKEN et al. (Supreme Judicial Court of Maine. May 6, 1919.) TION. "Liability cannot be cast upon the defendant in this case because he owned the car, or be- 1. EXCEPTIONS, BILL OF 44 PRESENTAcause the driver at the time of the accident was his son, or because he permitted his son to use the car. There must be the further relation of master and servant between them, and the son at the time of the accident must have been using the car in the business of the defendant." This instruction is clearly in accord with familiar principles of law. If under the facts of this case the plaintiff desired to have the term "business of the defendant" more fully defined, he should have asked for further instructions on that point. This he failed to do. The instruction as given is without error. Motion for new trial on ground of newly discovered evidence. [5, 6] This motion cannot be entertained because the entire report of the evidence at the trial is not before us. A general motion was not filed in the first instance, simply exceptions. The rule, and the reason therefor, have been stated as follows: "It is necessary in motions for new trials, on the ground of newly discovered evidence, not only to present the evidence alleged to have been newly discovered, but also a full report of the evidence produced on the former trial, that the court may be able to determine whether the additional facts proposed to be proved are in fact new evidence, and also whether, if admitted in connection with that before in the case, a different result would have been produced." Brann v. Vassalboro, 50 Me. 64. In other words, the new evidence must be of such character and weight that, consider Where entry of "exceptions filed and allowed" was made upon docket of court with consent of both parties before close of term, under Rev. St. c. 82, §. 55, the presentation of a bill of exceptions will be construed to have been made upon date of entry. 2. EXCEPTIONS, BILL OF 32(3) ALLOW Unless facts are those of which court takes judicial notice, no findings of fact by the law ACQUIESCENCE For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Exceptions from Supreme Judicial Court, [ of chapter 82 above referred to, and is now Lincoln County. Action by Elden O. Borneman and others against H. A. G. Milliken and others. Verdict for defendants, and plaintiffs except. Motion to dismiss bill of exceptions overruled, and exception sustained. before this court for consideration. [4] After consideration of the evidence now in the case we must sustain the exception. The presiding justice at nisi prius evidently viewed the findings of fact by this court in the opinion handed down in the former case (116 Me. 76, 100 Atl. 5) as conclusive and Argued before SPEAR, HANSON, PHIL- binding. The finding as to the town line beBROOK, WILSON, and DEASY, JJ. M. A. Johnson, of Rockland, for plaintiffs. A. S. Littlefield, of Rockland, for defendants. WILSON, J. This case as now before this court presents two questions: First, whether the bill of exceptions of the plaintiffs to the ruling of the presiding justice directing a verdict for the defendants is properly before this court; and, second, whether it should be sustained. The action was first tried at the April term, 1915, and resulted in a verdict for the plaintiffs against certain of the defendants. It was then taken to this court on motion for a new trial on the usual grounds, and a new trial was granted. 116 Me. 76, 100 Atl. 5. A new trial was begun on the first day of the October term, 1917. At the close of the second trial the presiding justice upon the ground that he felt his hands bound by the previous decision of this court above referred to, pro forma, as it were, ordered a verdict for the defendants. [1] To this ruling the plaintiffs seasonably excepted, and before the close of the term, and presumably with the consent of all parties, to comply with the statute, section 55, c. 82, R. S., an entry was made upon the docket of the court, "Exceptions filed and allowed." The effect of this entry under our practice and the decisions of this court must be construed to be that the presentation of a bill of exceptions after the close of the term shall by consent of parties be considered as presented as of the date of the docket entry. We think, therefore, the presentation of the bill of exceptions to the presiding justice must be held in this case as having been duly made on the 8th day of the October term, 1917. Dunn v. Motor Co., 92 Me. 165, 42 Atl. 389; Field v. Gellerson, 80 Me. 270, 14 Atl. 70. [2, 3] When a bill of exceptions has been duly presented for allowance, but before allowance the justice presiding at the trial becomes incapacitated for allowing them for any of the reasons assigned in section 56, c. 82, R. S., any justice may, upon motion and hearing, allow them. The bill of exceptions of the plaintiffs having been duly presented -and it was in fact presented to the justice presiding, though not allowed by him, owing to his death-it was, we think, properly al tween Waldoboro and Warren, at least, so far as the same forms the county line between Lincoln and Knox counties may be conclusive (State v. Thompson, 85 Me. 194, 27 Atl. 97), but unless the facts fall under the head of those of which the court takes judicial notice, no findings of fact by the law court based upon evidence in a case in which it sets aside the verdict can be considered res adjudicata. Case v. Hoffman, 100 Wis. 314, 72 N. W. 390, 74 N. W. 220, 75 N. W. 945, 44 L. R. A. 728. No issue of fact can be considered settled in a legal proceeding until a judgment is rendered thereon. Lord v. Chadbourne, 42 Me. 429, 443, 66 Am. Dec. 290. A new trial being granted, the proceedings begin de novo so far as the determination of the facts are concerned. State v. Verrill, 51 Me. 581, 583. Considerable new evidence at the second trial was introduced by the plaintiffs, and the contention of the plaintiffs now is, in effect, not that the so-called "old town line" between Waldoboro and Warren is the true town line, but that it was supposed to be the point of starting when the deed was given from Waterman Thomas to Geoffrey Hoffses in 1779, and that by the long acquiescence at least of the abutting owners the so-called "old town line" has ever since been regarded as and is the easterly boundary of this property; that the westerly line of this property, which is the real issue in this case, was originally fixed by a birch tree, and though said birch tree has disappeared through the rav ages of time the western boundary has continued certain and fixed by long occupation and acquiescence of the owners on each side. [5] Evidence was introduced in the former case of a copy of an ancient plan of this seetion of the town of Waldoboro, indicating that the property of John Labe next adjoining the line in dispute on the west extended no farther east than the adjoining property on the north, and the report and plan of the division of the property of Geoffrey Hoffses in 1811, which included the plaintiffs' property and the land now of one Payson adjoining on the north, the western line of which seems undisputed, and which plan tends to show that the distance across the property from east to west was the same from the north to the south boundaries, the property being divided into strips extending the entire length east and west, and the area in -- 5. HIGHWAYS 75(3) DISCONTINUANCE TOWN'S APPROVAL OF SELECTMEN'S ACTION -"PURSUANT TO VOTE OF TOWN." the width of each strip given in the report | tion of fact was raised, which, unless waived, and on the plan. In addition to this and the prevented proper naming of a committee. other evidence of the former trial the plain-4. HIGHWAYS 75(3) — DISCONTINUANCE — tiffs in support of their contentions introduced ADHERENCE TO STATUTE. at the last trial deeds of property lying east- In proceedings under Gen. St. 1918, § 1442, erly of the so-called "old town line," which to discontinue a highway, the action by the tended to show an entirely different source selectmen and the approval by the town should of title from that of Geoffrey Hoffses. There be formal and definite, so as to give notice, and was also evidence that the westerly line as the method provided by statute for discontinuance must be strictly followed. claimed by the plaintiffs had been acquiesced in by the abutting owners for many years (Corpus Juris, vol. 9, pp. 244, 245; Knowles v. Toothaker, 58 Me. 172), and also evidence that the land of the predecessors in title of the defendants originally began much farther to the west than the defendants' surveyor began to measure according to his testimony in the first trial, and that the distance named in the defendant Scott's deed along its northerly boundary was the distance along the original northerly line of the property known as the Jacob Labe property. With such other new evidence as was introduced by the plaintiffs at the last trial additional weight is given to some of the evidence introduced at the first trial. We think the presiding justice erred in not submitting all the evidence to the jury. Entry should be: While the decision of the selectmen in discontinuing a highway under Gen. St. 1918, § 1442, must be their own act, and not that of the town, a report of selectmen that "pursuant to the vote of the town they have discontinued," etc., might fairly be interpreted as their act, taken after, instead of before, approval by the town, as might properly be done. 6. EVIDENCE 83(2)-DISCONTINUANCE OF HIGHWAY-PRESUMPTION AS TO PRoper OFFICIAL ACTION. Where a town meeting was duly warned, and a vote from the town record showed a vote on closing a highway mentioned in the "foregoing notice," it may be presumed, from the obligations of official duty, that the notice was a part of the record of the meeting. Motion to dismiss bill of exceptions over- 7. HIGHWAYS 75(3)-RIGHT TO RESCIND ruled. Where, on application for relief from discontinuance of a highway, a defendant demurred to new matter in the answer of the defendant town, it was irregular procedure to grant motion to strike the demurrer and permit the demurrant to refile it in form of an application to the court to be heard on the points raised. 3. HIGHWAYS DISCONTINUANCE. Under Gen. St. 1918, §§ 1434, 1442, permitting appeal from discontinuance of a highway, the discontinuance was not final before time for appeal had expired, and the town, before that time, might rescind its action. 8. HIGHWAYS 75(3)-RIGHT TO RESCIND DISCONTINUANCE. Pending the right to appeal from discontinuance of a highway under Gen. St. 1918, §§ 1434, 1442, no rights in a party interested could be acquired or vested by the discontinuance, so as to prevent the town from reconsidering its action. County; Joel H. Reed, Judge. Application by Andrew M. Clark for relief against the Town of Cornwall and others from discontinuance of certain highways in said town, brought to the superior court and tried on motion by defendant Cunningham for appointment of a committee. From a judgment appointing the committee, the town appealed. Reversed. Leonard J. Nickerson, of Cornwall, for appellant. Frank B. Munn, of Winsted, for appellee Clark. Dennis W. Coleman and Wilson H. Pierce, both of Waterbury, and John H. Lancaster, of Litchfield, for appellee Cunningham. 77(8)-DISCONTINUANCE. Where, on application for relief from discontinuance of a highway, to an amendment of the defendant town's answer, setting up the history as to such highway, another defendant specifically replied "that he has no knowledge or WHEELER, J. The defendants the town information sufficient to form a belief," a ques- of Cornwall and Cunningham admitted in For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |