Opinion
No. 4621.
Submitted April 1, 1958.
Decided May 29, 1958.
1. In determining a boundary dispute it was proper for the Trial Court to admit as an exhibit a plan of the area duly filed and recorded in the registry of deeds, although the surveyor who prepared the plan was not called as a witness, where it could be found that the plan, considering its age, appearance and custody, was reliable and helpful in deciding such dispute.
ACTION OF TRESPASS, to recover damages for the cutting of trees upon the plaintiff's land. The defendant admitted that he cut the trees but claimed that they were on his land and not upon the land of the plaintiff. Trial by court, without jury, resulted in a verdict for the plaintiff. Defendant's objection to the admission of evidence was overruled and the defendant's bill of exceptions was allowed by Leahy, C. J.
The plaintiff's evidence consisted of his recorded deed dated August 4, 1947, photographs, his testimony and that of an adjoining lot owner; the defendant's evidence consisted of his recorded deed dated August 22, 1934, photographs and his testimony. This evidence was admitted virtually without objection by either party and no exception to it has been argued here.
The description in the plaintiff's deed was meager: a "certain tract of land in said Salem, being lots No. 243 and No. 244 at Shadow Lake in said Salem." Over the defendant's objection the Court allowed the plaintiff to introduce as an exhibit a plan of "Shadow Lake Shores, Salem, New Hampshire," made in 1929 and filed and recorded in the office of the Register of Deeds for Rockingham County. "Plan from Registry of Deeds — Platt 19-9." The surveyor who prepared the plan was not called as a witness.
John B. Ford for the plaintiff, furnished no brief.
Sleeper Mullavey for the defendant.
Maps, surveys, plans and plots which are thirty years old, free on their face of suspicion and found in proper custody are admissible in evidence as ancient documents as an exception to the hearsay rule. Lawrence v. Tennant, 64 N.H. 532; Twombly v. Lord, 74 N.H. 211. The plan in this case, although over twenty-five years old, does not satisfy this test of antiquity and is not classified as an ancient document. 46 A.L.R. (2d) 1318. There was a suggestion in a dictum in Homer v. Cilley, 14 N.H. 85, 98, that the period might be reduced to twenty years but it died aborning. However, we think the plan was admissible on broader grounds.
As a starting point the following quotation from Ferguson v. Clifford, 37 N.H. 86, 95, is pertinent: "Official registers, or books kept by persons in public office, in which they are required to write down particular transactions, or to enroll or record particular contracts or instruments, are generally admissible in evidence, notwithstanding their authenticity is not confirmed by those usual and ordinary tests of truth — the obligation of an oath and the power of cross examining the persons on whose authority their truth and authenticity may depend. This has been said to be, because they are required by law to be kept, because the entries in them are of public interest and notoriety, and because they are made under the sanction of an oath of office, or in the discharge of an official duty." Wigmore has emphasized that on the principle of necessity and the principle of circumstantial probability of trustworthiness such evidence is and should be admissible. V Wig. Ev. (3rd ed.) ss. 1631, 1632. See also, State v. Story, 97 N.H. 141, 158. The fundamental inquiry is not the name or number of the exceptions to the hearsay rule (Ellsworth v. Watkins, 101 N.H. 51, 52) but whether "under the circumstances [the evidence] satisfies the reasons which lie behind the exceptions." McCormick, Evidence (1954) p. 633.
This basic approach was set forth in another connection in Gagnon v. Pronovost, 97 N.H. 500, 503: "However, we believe the sensible test to determine whether this evidence should have been admitted was suggested by Peaslee, J., many years ago in Hutchins v. Berry, 75 N.H. 416, where he said when speaking of a record kept in a memorandum book, `[Is] this account so lacking in apparent trustworthiness that it must be wholly rejected, or should it be admitted, and the objections to it be used to detract from its weight? The latter course seems the more reasonable.' Id., 419. We agree with this statement and so apparently do influential modern authorities." See V Wig Ev. (3rd ed.) s. 1576, note 4 (1957 supp.).
Reduced to its simplest terms the Trial Court could find that the plan in the present case considering its age, appearance and custody was reliable and helpful in deciding the boundary dispute before him and therefore admissible. See Tuftonboro v. Willard, 89 N.H. 253; McCormick, Evidence (1954) p. 479. "When a witness is not available at all or available only with a disproportionate expense of time, let us hear what he has said on the matter, just as we do in every other concern of life." Learned Hand, J. in "The Deficiencies of Trials to Reach the Heart of the Matter" quoted in V Wig. Ev. (3rd ed.) s. 1576, p. 436.
Exception overruled.
All concurred.