Morton v. Folger

Citations

• 15 Cal. 275

Syllabus

<p>The deposition of a surveyor, who ran the boundary lines of a grant, taken in one action, is admissible in another action between different parties, as hearsay evidence, upon the location of such lines, after his death.</p> <p>Hence the deposition of Vioget, as to the position of the southern boundary of the Sutter grant, offered in connection with the map drawn by him, is admissible, as hearsay evidence—though taken in another action between different parties.</p> <p>The declarations, on a question of boundary, of a deceased person, who was in a situation to be acquainted with the'matter, and who was at the time free from any interest therein, are admissible, whether the boundary be one of a general or public interest, or be one between the estates of private proprietors. And their admissibility cannot-be-affectqd, by the fact, that they are reduced to writing, and were made under oath in a judicial proceeding.</p> <p>Such evidence is admissible as hearsay evidence from the necessity of the case, which, in this instance, presents itself with peculiar force. The survey by Vioget was made in 1841, when the valley of the Sacramento was occupied almost exclusively by roving tribes of Indians, and no interest was felt in preserving, on the surface of the ground, the evidence of its lines. At that time there were no white men, nor were there for years afterwards, to question Sutter’s claim, or to dispute as to its boundaries. Whatever landmarks were originally made must have soon disappeared. Two cities, Sacramento and Marysville, one of them the second in population in the State, are built upon the land supposed to be within the grant to Sutter; and residents of these cities, and occupiers of land lying between them—numbered by thousands— have taken conveyances from Sutter, and expended their money in improvements, relying upon the survey and map of Vioget as evidence that then-property is within the grant.</p> <p>Besides, the land is divided into a large number of f