Supreme Court of Connecticut, 1891

Peck, Stow & Wilcox Co. v. Atwater Manufacturing Co.

Supreme Court of Connecticut · Decided June 1, 1891 · Andrews, Carpenter, Loomis, Seymour, Torrance

23 A. 699; 61 Conn. 31; 1891 Conn. LEXIS 62

Counsel

C. E. Perkins, for the appellant. The declaration of a former owner against his interest can affect only those who claim title from him. 1 Greenl. Ev., § 189; Beers v. Hawley, 2 Conn., 467 ; Betts v. Davenport, 3 id., 286; Norton v. Pettibone, 7 id., 323; Deming v. 17 id., 401; Rams-bottom v. Phelps, 18 id., 278, 285: Tyler v. Mather, 9 Gray, 177. In the case at bar the defendant made no claim under Atwater, nor was there any question in the case whatever as to whether Atwater's dam, built in 1852, was higher or lower than he had a right to raise it. The only question in the case was whether as a fact the defendant in 1888 raised his dam higher than Atwater's was built in 1852. This clearly appears from the finding, which says that the plaintiff claimed that in 1888 the defendant, raised the dam "some ten or twelve inches above the dam as built in 1852." It is apparent therefore that here the defendant's case did not depend at all on any question of title or right coining from Atwater, but entirely on whether it had raised the dam above what Atwater had done; there was no controversy whatever about Atwater's right. The defendant, did not claim that Atwater had any right to raise the dam higher than he did in 1852, nor did he claim that be got such a right from or through Atwater. In other words, the defendant did not claim under Atwater. A. F. Eggleston and M. H. Holcomb, for the appellee.

Opinion of the Court

Andrews, C. J.

The evidence in this case to which objection was made, was, we think, clearly admissible. The declarations of the owner of land while in possession, in disparagement of his own title, are always admissible in evidence against him and all others who claim under him. Potter v. Waite, 55 Conn., 238.

The appellant seeks to avoid the application of this principle by insisting that the only controversy in the case was as to how high Orrin Atwater did, in fact, build the dam in 1852, and not how high did he have the right to build it. This claim, however, contradicts the averments in the complaint and the finding of the court. In both of these it appears that the height to which Mr. Atwater had the right to build his dam was in dispute. But if the claim of the appellant was strictly correct, still we think the evidence *34 was admissible. A witness may always state a circumstance which called his attention to the main fact in issue and in respect to which he testifies. The circumstance that Mr. Atwater told this witness, while the witness was at work on the dam, how high he had a right to build the dam, and how high to build it, would be very likely to fix the attention of the witness on the height to which the dam was actually built. Such circumstances, in connection with the testimony of witnesses, are “ an important means of determining the value of testimony by weighing it with reference to the opportunities which each witness had to know and remember the facts and to judge accurately in regard to them.” Tomlinson v. Town of Derby, 43 Conn., 562.

There is no error in the judgment appealed from.

In this opinion the other judges concurred.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.