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and maintain a dam of the same height as a former dam used m
connection with a grist-mill. The defendants stand upon this
Booth and Spaulding title. Afterward the Deweys, by a lease for
a thousand years, conveyed to Grovcr the lot up the stream from
the defendants', on which the plaintiff now operates a machine shop
by means of water power. The Deweys also conveyed to Grovcr, by
warranty deed, the right of digging (Jitches over other lands then
owned by the Deweys, lying between the lands leased to Glover and
the lands conveyed to Booth and Spaulding, to the east or upper
edge of the pond raised by Booth and Spaulding's dam. These
ditches were to serve the purpose of race-ways from the upper or
Grover mill to said pond. The plaintiff stands upon the Grover
title, and brings this action for damages occasioned by the defend-
ants' raising their dam higher than the old grist-mill dam, thus
creating a back flowage of water through the plaintiff's ditch upon
his water-wheel.

At the trial it became a material question to determine whether

Digitized by


OOTOBBB TEEM, 1879. 747

Putnam ▼. Fisher.

in point of fact the defendants' dam was higher than the old grist-
mill dam, and the plaintiff was allowed to show that in 1846 or
1847> Jedediah Dewey then having no title to the defendants' dam
or the land and privilege connected with it, but owning other
lands bordering upon the defendants' mill-pond, and affected by
raising the water of said pond, and liable upon the covenants of
warranty made in his deeds to both the plaintiff's and defendants'
grantors, went upon the dam then owned by Booth and Spaulding,
and cut away a circular segment about twenty inches deep and
twenty-five feet long, for the purpose of lowering the pond, and was
further allowed to prove the declarations of Dewey while so cutting
down the dam, to the effect that the dam was too high. The ad-
mission of these declarations was error. To the general rule that
hearsay, or second-hand evidence is inadmissible, there are several
well-defined exceptions, but the exceptionable evidence is always
guarded by some security that makes it reasonably safe to rely upon
it Thus, the testimony of a witness on a former trial between the
same parties since deceased may be proved by persons who heard
it. Such testimony, having been given in a judicial proceeding,
under oath, with opportunity for cross-examination, when properly
proved, is always received as evidence in a subsequent trial of the
same case. In matters of pedigree, the declarations of deceased
members of a family, entries in family Bibles, correspondence be-
tween relatives, recitals in deeds, inscriptions on tombstones, ring^j
and monuments, and many other similar facts are often admitted
m evidence. In this class of evidence it must appear that the
declaration, entry, etc., was made a7ite litem molam, by some one
connected with the family who would be likely to know the fact,
and likely to truthfully express it. Matters of public and genenil
interest, such as ancient municipal boundaries, nghts of common,
and other historical facts, are admitted in evidence from necessity,
and may be established by ancient documents, declarations of do-
ceased persons, etc., provided they are made before a controversy
has arisen. This exception has been extended in this and some
other States so far as to allow declarations of deceased persons Ui
establish an ancient boundary line between individuals, though this
is contrary to the English rule. Wood y.WiUard, 37 Vt. 377; Kin-
ney V. Farnsworthy 17 Conn. 355; Smith v. Powers, 15 N. H. 54tl;
Queen v. Bedfordshire, 4 E. & B. 535. But under the decisions in
England and in tliis country, this evidence is hedged about with

Digitized by


748 • VERMONT,

PatDAm V. Fisher.

qualifications that must appear before it can be received. To es-
tablish an ancient boundary^ whether of public or private property,
by the declarations of deceased persons, it must appear that the
declarations were made before a controversy has arisen in respect to
the boundary, that the declarant had knowledge, or such connec-
tion with the subject-matter as presumptively to have had knowl-
edge of the fact, and can identify the boundary, and that the
declarant had no interest to misrepresent the fact The declara-
tions of deceased persons are likewise admissible in evidence in
proceedings between third persons, provided they were made against
the pecuniary or proprietary interests of the declarant, and pro-
vided further that they do not question a title that the declarant
had no right to question, such as the case of a tenant who cannot
dispute the title under which he holds.

The declarations of Dewey when cutting down the dam cannot
be brought within any of the exceptions to the general rule. The
doctrine of Wood v. WiHardf supra, has never been extended by our
court beyond the case of a disputed ancient boundary line. It has
not been applied to proof of other facts of ancient date. Even if
the fact to be proved was one proper for the application of the rule
admitting declarations, the essential conditions that must exist are
not found in this case. One of the conditions recited in Wood v.
Willardy as necessary for the admission of this class of evidence, is
that the declarant has "no interest to misrepresent the fact," It
is not stated that the declaration must be against interest, but that
the declarant must stand at least indifferent in respect to interest
In this case Dewey's declaration was in favor of his own interest,
and to hold it admissible would enable a party by his own declara-
tions to make evidence for himself. Dewey was under a liability
by virtue of his covenants of warranty; he owned land bordering
upon Booth and Spaulding's pond which was liable to encroach-
ment if the dam was higher than it should be; and thus he was in-
terested to reduce its height

The County Court seems to have admitted the declarations of
Dewey, npon the ground that the act of cutting down the dam and
the contemporary declaration tended to show that Booth and
Spaulding acquiesced in Dewey's claim that the dam was too high;
but no right based upon the ground of acquiescence was claimed by
the plaintiff, and none could be under the facts appearing. The

.Digitized by


OCTOBER TERM, 1879. 749

Patnam v. Fisher.

evidence was left to work its injurious consequences upon the de-
fendant's title, as shown by their deeds.

Judgment reversed.

' Note by tbb Rbpobtkr.— The general rule as to boundaries Is that the declaration must
be bj the owner of the land in question, when the declarant is disinterested, and when he
is on the ground, pointing out the boundaries. Daggett v. Shaw, 5 Mete. 223; Bender v.
Pitzer, 27 Penn. St. 888. But in Smith v. Forrest, 49 N. H. 280, it was held that the declar-
ant need not be on the ground at the time, and in Scoggitv v. Dairy mylte^ 7 Jones L. 46,
that he need not be in view of the particular monument spoken of, provided it was dis-
tinctly Identifled. These cases are doubted In Long v . Cotton, 118 Mass. 414. In Erartn v.
Young, fi2 Vt. 820, such declarations were admitted to show non-aoquiescenoe, but not to
prove the true line, the declarant being Interested. The court said: ''The plaintiff's tes-
timony tended to show that he and his brother Anson and father Reuben, in 1881, procured
a surveyor. Judge Bebman, to run the line — not on the line between the lots >- so that there
was an exchange of a small amount of land between them, and that the line thus run wan
acquiesced in by him and Anson Bvarts until the death of Anson Evarts, in 1874, and was the
line to which he claimed. This testimony was uncontradicted, ezoept by the declarations
of Anson Evarts, made within the last twelve or fifteen years, that the 'stone comer'
was the comer of his land, and by a declaration of the plaintiff made nineteen years
before the trial, in regard to the location of the end of a wall built by tUm ranning at right
angles with the line. The declarations of Anson Evarts were allowed to be shown, against
the exception of the plaintiff, and were allowed by the court to be used as tending to show
where the line between them in fact was. In giving, or allowing to be given, to this evi-
dence this scope and effect, we think the county court erred. A party is not allowed to
show his own declarations or the declarations of those through whom he claims title, In
his o¥m favor, unless such declarations accompany and give character to some act affect-
ing his title, and so become a part of the ret geittce. This subject has frequently received
the consideration of this court . In Wood v. WiUard, 88 Vt. 83, it was held that the declar-
ation of the grantor as to where his line was, made at the time he sold and conveyed the
premises to the plaintiff and while upon the premises pointing out the Une, were not
admissible. On the other hand, in Kimball v. Ladd, 4St Vt. 747; NotHe v. Sylve^r, id.
146; Perkins v. Bfood, 36 id. 273, It Is held that the declaration of a party or of a person
through whom the pcurty derives title, made while exercising a right or easement, and
tending to show that he claimed to exercise it in his own right, or that he had not aban-
doned his prior possession or right to a piece of property, are admissible for such purpose
only. Under this mle the declarations of Anson Evarts allowed to be shown, were admis-
sible to rebut the testimony of the plaintiff tending to show, that at the several times when
they were made, Anson Evarts was acquiescing In the line claimed by the plaintiff, and
only for such purpose. They were not admissible for the purpose of showing where the
Beeman line was, nor where the true line between him and the plaintiff then was; and on
the question of acquiescence they should be confined strictly to the periods of time at
which they were respectively made, and not be allowed as tending to show that he had
not, from 1831 to the time of making such declarations, acquiesced in the line as the
plaintlfTs testimony tended to show. Acquiescence Is the state of a party*s mind regard-
ing a particular subject or thing and his declarations on that subject or thing are the
indices of his state of mind thereon at the times they are respectively made.

"These declarations, although Anson Evarts has deceased, do not fall within the rale
established In Wood v. WiOard^ 87 Vt. 877: Potctm v. SOfhy, 41 id. 288, and some other
more recent cases, allowing hearsay testimony, or declarations in regard to ancient bound-
aries between the estates of private Indlv^uals . The rale for the admission of such testi-
mony, as expressed by Pierpoint, C J , In Wood v. WUlard, supra. Is, * that the declara-
tions of deceased persons who had actual knowledge as to the location of such boundaries,
or who, firom their connection with the property itself, or their situation and experience in
regard to such boundaries and the surveys thereof, had peculiar means of knowledge so
fbat It may fairly be hfif erred that they had actual khowledge of the same, made al a tlms
tpftentftey hod no <ntere«e to misrepresent. * • * may be received as to tbelooattoa

Digitized by




Putnam v. Fisber.

of such boundaiy, when from Upae of time there can be no reaMmable pr^r ability that
evidenoe can be obtained from those who had actual knowledge on *he subject' It is an
important qualification that the declarant, at the time of making the daclanvtton, should
have no Interest to misrepresent. Anson Evarts making a claim in his own favor was not
thus disinterested. Whether the transaction in regard to the Beeman line was of such anti-
quity as to allow this clowt of testilnony for the establishment of iu location, is not
admitted nor decided, as titis t^timony for this purpose is held inadmissible, on the
(ground that Anson Evarts, when he made tlie declarations, was interested in having the
stone corner established as his comer/*

The following is an abstract of a portion of HunicuU v. Peyton^ United States Supreme
Court, February, 1881 : A witness called to prove the location of private lands was allowed
to testify that one H., a surveyor, had, while absent from the lands in question, told him
the location and direction of certain boundary lines which M. said to witness he (M.) had
surveyed, and witness was allowed to state what the declarations of M. were. Held error.
Kaicoit V. Pearl, 10 Pet. 412; Bartlett t. Emermn, 7 Gray, 174 ; 6 Mete. 223 ; JLony v. Cotton,
1 16 Mass. 414 ; Bender v. Pierce^ S7 Penn. St. 835. ' 'ie conclusion to which a great majority
of the decisions of State courts lead upon thin rubject is this : In questions of private
boundary, declarations of particular facts, as distinguished from reputation, made Iqr
deceased persons, are not admissible, unless they were made by persons shown to have
had knowledge of that whereof they spoke, or persons on the land, or in possession of it
when the declarations were made. To be evidence, they must have been made when the
declarant was pointing out or marking the boundaries or discharging some duties relating
thereto. A declaration which Is a mere recital of something past is not an exception to
the rule that excludes hearsay evidence.

In 116 Mass. 114, the court said: '*The declarations of deceased persons respecting
boundaries are received as evidence as an exception to the rule which rejects hearsay
testimony. In most of the decided cases. It is held that the declaration should appear to
have been made in disparagement of title, or against the interest of the party making it;
but in Daggett v. Shau\ 5 Mete. 233, it is said that the rule as practiced in this Oommoo-
wealth Is not so restricted, and that declarations of ancient persons, made while in poa>
session of land owned by them, pointing out their boundaries on the land itself, are
admissible as evidence when nothing appears to show that they are interested to misrepre-
HtMit, and it need not appear aiTlrmatively that the declaration was made in restriction of
or against their own rights. And In Bartlett v. Emermn, 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, with
respect to such boundaries, and when nothing appears to show an interest to deceive or
misrepresent. ITare v. BrooHhovM, 7 Gray, 454; Flagg v. itfoson, 8 Id. 866.

** 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
tlie l)oundares 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 ita
force as evidence from the fact that it accompanies an act which it qualifies or give*
character to. The declaration Is then a part of the act. Without such accompanying act,
the declaration is mere narrative, liable to be misunderstood or misapplied, and open to
the objections which prevail against hearsay evidence.

" The declaration rejected does not appear to have been offered for the purpose of
establishing a boundary by traditionary evidence or reputation. Such evidence has some-
times been said by Amprican courts to be admissible : and in the cases from New Hamp-
shire, cited by the defendant, it seems to be held that declarations of deceased persooa*
who. from their situation, appear to have the m<win8 of knowledge, and who have na
interest to misrepresent the facts, are admissible to establish private boundaries, althoogk
not made on the land. Smith ▼. FYjrretit, 49 N. H. 280, 287 : Oreat FaUn On. v. Wonter,
15 id. 412, 487. But by the current of authority and upon the better reason , such evldenoa
is inadmissible for the purpose of proving the boundary of a private estate, where mioli
ooandary ta noc identical with another o^ a public or qiuud public nature. 1 Oreenl. Bt
1 1«$ 1 PIUl. Sr. (N.r.ed. 1840). 841, . . Ck>wen& Hill's Notes: UaUw. Jfayo, 97 Mass. 4li,"

Digitized by


JANUAUV TERM, 1880. ;5i

Godeau ▼. Bloocl.

GoDKAU V. Blood.

AnimnU — it\}nry by dog — ncientrr — en'denM — damageM,

In an anion for injury by the bite of a dog, it appeared that the dog was /ero-
ciou8, to the knowledge of his owner, and that his owner had flometimes
confined and juuzzled him. Held, that it was unnecessary to prove that he
had ever bitten mankind. (^« rtote, p. 753.)

In an action for injury by the bite of a dog, the fear and solicitude as to
poison are propiar elements of damage.

ACTION for injury liy the bite of h dog. The opinion Htates the
facts. The phiintiff had judgment Inflow.

K y, / Irniv neJi ni\d If. L, /?wr my/?, for defendant.
Uenri/ linUanl and A. /'. Knglesbt/, for jilaintiflP.

Keofiem), J. There was no direct evidence that this dog had
mcr bitten a person nntil lie bit this plaintiff. There was abundant
evidence that the dog was exceptionally fierce and ferocious ; that
he He rcely assailed other dogs without provocation; that he jumped,
and fastened iiis leeth into the breast of a horse while being led
from tlio stable, without any occasion to excite his anger ; that he
was cross and menacing on many occasions : that neighbors had
frequently called on the defendant to restrain his dog, as not fit and
safe to be at large ; and that in fact the defendant had much of
the time kept the dog confined jmd muzzled. The court refused
to order a verdict for the defendant. Wo think in this there was
no error. The duty which the law cast upon the keeper of a mali-
cious and dangerous domestic animal is but tho enforcement of a
common moral duty, binding upon all men ; that a man should so
keep and use his own property as not to wrong and injure others.
The formula used in text books and in forms given for pleadings
in such cases, *' accustomed to bite," does not mean that the keeper
of a ferocious dog is exempt from all duty of restraint until the
dog has effectually mangled or killed at least one person. But an
ho is held to be a man of common vigilance and care, if he had
good reason to believe, from his knowledge of the ferocious naturo
and propensity of the dog, that there was ground to apprehend that

Digitized by



Godeau v. Blood.

he would under some circumstances bite a person^ then the duty
of restraint attached ; and to omit it was negligence. Shearm. &
Redf. Negl. 231, 234; Buckley v. Leonard, 4 Den. 500. In a popu-
lous place like Burlington, where the streets are full of all kinds of
people, — children sen t on errands, going and returning from school
or church,or playing by the wayside, — it is not a light thing that
they are in danger of being torn to pieces, as was this plaintiff.
Dogs have their rights; but if the jury found this dog to be, as de-
scribed by one witness, ** the most wickedest kind of a dog," as we
think is most probable, tvom the i>erasal of the evidence, then his
right was accurately defined by Chief Justice Lee in Smith v.
Pelah, 2 Str. 1264 — " Such a dog should have been hanged on the
first notice ; the safety of the king's subjects ought not afterward
to be endangered."

II. But in this case there was legitimate evidence tending to
prove that this dog had not only the propensity but habit of biting
|)eople, and that known to the keeper. The savage and vicious na-
ture of the dog, and the fact that he was kept chained and muzzled
by his keeper arc evidence, and as Chief Justice Denio said, in
Buckley v. Leonard^ supra, '• strong evidence " that the dog was*
and was known to be vicious, and that the safety of the public re-
<|uired his restraint.

III. The apprehension of poison from the bite of the dog, and
the fear and solicitude as to evil results therefrom — all pain, an-
guish, solicitude, occasioned by the bite — were proper matters for
consideration by the jury in estimating the damages. And we do
not think the chief justice erred in calling the attention of the
jury to this matter: nor does the verdict indicate that the jury were
misled by the manner of it

Judgment affirmed.

Note by the Reporter.— To the same effect, Hlder v. White^ 65 N. Y. 54; b. c, 22 Am.
Hep. 600. In Mann v. Weiand^ %\}i Penn. St. 843, it was held that t)ie owner's knowledge
that the dog had once attacked horses was sufficient to charge htm with notice of that
propensity. The court said: "The plaintiff in error was charged with wrongfully and
n^ligently keeping dogs of a ferocious and mischievous nature. It was averred that he
knew they were used and accustomed to attack, worry, and frighten horses as they were
driven on the public highway, near his dwelling-house; and by the dogs* repetition of such
an act the injury complained of was caused.

** To fasten a liability on him it was necessary to establish the Ticious cdiaracter of his
dogs, and his previous knowledge of that character. To prove the former, the defendant
in error gave evidesce of the conduct of the dogs on two occasions. At one time, as a
team was passing along on the public highway the dogs, without fearing the indosore of
their master, jumped against the bars of the fence at the roadside with such force and

Digitized by


JANUARY TERM, 1880. 753

Qodeau t. Blood.

irloleiioe, mod rattled them to such an eictent as to frighten the horsee, thereby causing
them to spring, break the doubletree, and run for sereral rods. The other act was of a
more vicious character. As a team was passing the premises of the plaintifl in error his
dogs ran out into the road ; one of them barked and jumped ahead of the horse so as to
stop it; the other raised himself up, put his paws on the wagon, barked and growled, and
aetied the shawl of a small girl who sat on the back seat; on its being jerked loose from
him he got down, but both dogs, growling, followed the team some three or four hundred
rods. There was evidence that the plaintiff in error had notice, before the injury in this
case, of the conduct of the dogs on both those occasions.

** Were these facts sufficient to submit to the jury to find the dogs to be vicious and
accustomed to attack and frighten horses? In Smith v. Pelah^ 2 8tr. VM, it was said by
Lbs, C. J., * If a dog has once bit a man, and the owner, having notice thereof, keeps the
dog and lets him go about, or lie at his door, an action will lie against him at the suit of a
person who is bit, though it happened by such person^s treading on the dog's toes, for it
was owing to his not hanging the dog on the first notice, and the safety of the king's
subjects ought not afterward to be endangered.* So in Arnold v. Norton^ 25 Conn. 92, it
was held that full and satisfactory proof of a single instance in which the dog had pre-
viously bitten a human being, and of the owner's knowledge thereof, was sufficient, but
that the force of such testimony would depend much on the surrounding circumstances.

** In Kitlredge v. EUioU^ 10 N. H. 77, evidence of notice of one attack by a dog was held
sufficient to charge the owner with all its subsequent acts. In LoomU v. TerrUn 17 Wend.
486, one instance seems to have been considered sufficient. One attempt of a bull to gore
was held sufficient in Cockerham v. Nixon, II Ired. 260.

** We think one instance may show such unmistakable evidence of a vicious propensity
as to make the owner of the dog, with notice, liable for any subsequent act of a similar
character. The gUt of the action for the subsequent misconduct of the dog is for keeping
it after knowledge of its vicious propensity. May v. BurdetU 9 Q. B. 101; Wheeler v.
Brantt S8 Barb. 824. It thereupon becomes the duty of the owner so to keep his dog as to
guard against a repetition of similar misconduct. He is bound to secure it at all events, and
is liable to parties afterward injured if the mode he has adopted to secure it proves insuf-
ficient Wood on Nuisance, $ 763; Jones v. Perry ^ 8 Esp. 482; Maaon v. Keding, 12 Mod.
382. The principle on which this rule rests was held in Mann v. Reed, 4 Allen, 481, to be.
that a ferocious animal, liable to do injury to men or property, is a nuisance, and that
keeping It after notice of such liability Is so wrongful, that the owner is chargeable for any
neglect to keep It with such care that it cannot do any damage to a person, who, vvithout

Online LibraryIrving Browne Isaac Grant ThompsonThe American reports: containing all decisions of general ..., Volume 36 → online text (page 83 of 123)