Sullivan Granite Company vs. John Gordon.
la the trial of a writ of entry to recover a part of lot seventy-one, the declarations of an owner (since deceased) of a lot adjoining seventy-one on the west, while surveying it for the purpose of conveying it, that a certain monument at which he was then standing was the declarant’s north-east corner, are not admissible.
Thus, the defendant in such action, seeking to show that a certain monument • was the true north-east corner of an adjoining lot, and on the west line of seventy-one, testified against objection, that he bought of one Miller (since deceased) twenty-five acres of the Müller lot adjoining seventy-one on the west; that when it was run out to him, he and Miller were present with the surveyor; that they run to the spot now claimed by the defendant as the true Miller corner; and that Miller then and there showed him the place, and told him it was Miller’s north-east corner. Held, that the declarations of Miller were inadmissible.
*521On exceptions.
Writ oe entry for land in Sullivan, including a granite quarry, and covering about ten acres.
The defendant claims that the land in dispute forms a part of lot number seventy-one, known as the John Gordon lot.
The town plan and the field-books of Mr. James Peters show that lot seventy-one is bounded on the west by the James Miller lot, and that it extends northerly about twenty-one rods further than the Miller lot, making its western side line about twenty-one rods longer than the eastern side line of the Miller lot.
The defendant sought to show that a certain monument (A), viz.: a stake and stones in a crevice of a ledge, was the true northeast corner of the Miller lot, and on the west line of lot seventy-one, and among other things testified against objection, that in 1841 (as by his deed produced) he bought of James Miller twenty-five acres of the Miller lot; that when it was run out to him, he and James Miller (now deceased) were present with the surveyor; and that they run to the spot (A) now claimed by the defendant, as the true Miller corner; and that Miller showed him the place at the time, and at the place where said corner is, and when the land was being run out to the defendant by Miller as by his deed, told him it was his (Miller’s) north-east corner.
The verdict was for the defendant, and the plaintiff alleged exceptions.
JE. Hale, for the plaintiffs.
*522A. Wisw,ell, for tlie defendant,
cited Haynes, v. Butler, 24 Pick. 242, 18 Met. 546; Corinth v. Lincoln, 34 Maine, 312 ; Stewart v. Hanson, 35 Maine, 506, 1 Greexxl. on Ev., §§ 108 and 109 ; Baggett v. Shaw, 5 Met. 223.
Appleton, G. .J.
This is a real action to recover what is claimed as a portion of lot seventy-one, in the town of Sullivan.
The defendant .purchased part of an adjacent lot of one Miller in 1841. The land was run out at the time the defendant received his deed. The act of Miller, who has since deceased, at the time the land was so run out, in pointing out the north-east corner of his lot, and his declaration that the spot thus pointed out was such north-east corner, were received subject to all legal objection.
It is well settled that the declarations of the owner of a tract of land, as to its boundaries, while in possession, are admissible against him, and all persons claiming title under him. But here the acts and declarations have no reference to the corners of lot seventy-one. The act of pointing out a corner is no transaction with which these parties, so far as relates to this suit, have any connection. Neither party derives title to the premises in controversy from Miller. The corners of his lot are not those of the one in dispute. The declarations of Miller are but hearsay: They ax-e xxoxxe the less hearsay, because the declarant may have been, at the time, ixx possessioxx of the lot, to the corner of which his declarations x’elate. Ixx all the cases in this State axxd ixx Massachusetts, ixx which declax’atioixs have been received, they related to the land ixx coxxtroversy, were made by the declarant while ixx possessioxx, axxd were offered ixx evidexxce against him or those deriving title .xxnder him. Chapman v. Twitchel, 37 Maine, 59. Bartlett v. Emerson, 7 Gray, 174. “ The exceptioxx to the general ride excluding heai’say evidence,” x’exnarks Gray J., in Hall v. Mayo, 97 Mass. 418, which perxnit the introduction of reputatioxx or tradition, or of declarations of persons deceased, as to matters of public or general interest, or questions of pedigree, do not extexxd to a question of private boundary, ixx which no considerable number of persons have a legal interest.”
*523In Daggett v. Shaw, 5 Met. 223, tbe declarations related to tbe same land of which the declarant was in possession, when they were made. They were declarations against interest, and therefore received. Exceptions sustained.
Cutting, Walton, Dickerson, and Danforth, JJ., concurred.
Kent and Barrows, JJ., did not concur.