Miller v. Silsby

It is contended, that the testimony of Thomas C. Drew in this case is inadmissible, as it contradicts the record of the laying out of the highway. His testimony was offered to show the location of the monuments on the line of the highway, at the time it was laid out. The record refers to these monuments, giving the courses from one to the other, and the distances between them. These monuments can be shown in no other manner than by testimony, and such testimony does not contradict the record.

The highway was laid out “ commencing at a stake about eleven and a half rods from a certain maple tree.” It appears that a stake was set up at this point; but it also appears that it was placed there for a merely temporary purpose, not ultimately having any thing to do with the laying out of the road, and was, therefore, no monument.

The highway was to ran on given points and distances from the terminus above named to stakes and stones along the route ; and the testimony is, that stakes and stones were set up, as monuments, corresponding with the laying out, through the whole line of the road.

These monuments all refer back to, and designate a monument, as the starting point of the road, seventeen rods south of the maple tree ; and this monument is shown conclusively to have been established by the committee. The question then arises, Is there any fatal variance betwixt this line of monuments and the record of laying out of the road ? We think there is not.

By rectifying the distance from the maple tree to the first monument, the record of the laying of the road conforms precisely to the remaining courses, distances and monuments, through the entire extent of the road. There is, then, clearly a mistake in the first distance given : but the *477monument set up is known and established, and must govern as to the location of the road, rather than the distance.

Though great accuracy should be required in laying out a highway, still the same rijles are applicable to it that apply to metes and bounds in conveyances of land. There can be no mistake in the monuments actually set up: there always will be more or less error in courses and distances.

The variance here is very considerable, in proportion to the whole distance given ; but the principle contended for is applicable. The road was constructed as laid. The evh denee offered does not contradict the record, and there must be Judgment upon the verdict for the defendants.