This was an action of trespass quare clausum in which it was sought to recover damages for certain timber cut on land the title to which was in dispute between these parties. Their respective rights have since been determined in a real action.
The case comes to this court on exceptions; first as to the exclusion of certain testimony and, second,.to the ordering of a non-suit.
The evidence which was excluded was plainly within the hearsay rule. The action of the presiding justice in ordering the non-suit *609was obviously correct. It was necessary, in order that the plaintiff should make out a prima facie case, for him to definitely establish the division line between his land and that of the defendant, either by direct proof of the location of such line, or by locating it relatively to the town line dividing the Town of Stowe from the Town of Lovell. The evidence with regard to both of these propositions was inconclusive, and not sufficiently clear to fairly raise a question of fact for the jury. These defects were remedied in the later case, and in view of the fact that the real issue between the parties has now been settled, further discussion of the matter seems unnecessary. Exceptions overruled.
Elias Smith and A. J. Stearns, for plaintiff. Hastings and Son, for -defendant.