FROM HILLSBOROUGH CIRCUIT COURT. This cause was transferred to the superior court on general demurrer, with a provision that if the bill should be held maintainable, a final decree should be entered for the plaintiffs. The bill stated, in substance, that the selectmen of Mason, after due notice, met the selectmen of Greenville on the fifth day of December, 1872, for the purpose of fixing upon the line between said towns, and setting up marks and bounds according to law; that the selectmen of Mason, by certain false and fraudulent representations as to the position of the south line and the south-west corner of Mason, induced the selectmen of Greenville to consent to an incorrect and wrongful location of the line between said towns, and to sign a return establishing marks and monuments according to such incorrect location, whereby a part of the territory of Greenville was included within the territory of Mason; that the selectmen of Mason, admitting that the line is incorrect, claim that Greenville is bound thereby, and refuse to take any measures to correct the error, and assert that Mason will claim and exercise jurisdiction up to that line; — and the plaintiffs pray that it may be ordered and decreed by said court that said return may be annulled, and that Mason may be forever enjoined from making any claim under it, and for such other relief as may be just.
By the "act to constitute the town of Greenville from a part of the territory of the town of Mason," approved June 28, 1872, the boundaries between Mason and Greenville are determined by the boundaries of certain lots; and by "An act to confirm and establish the boundary line between the towns of Greenville and Mason," approved July 2, 1873, the boundary line between those towns was established, to be as it was enacted to be in the statute just cited. Exactly what this statute is or was intended to be I am unable to say, and perhaps it is not necessary to determine, — since it in no respect alters the first statute.
On the demurrer it is to be taken, then, that the allegations in the bill are true, and the charge of fraudulent misrepresentation sustained.
By the act of 1872, above referred to, the boundaries of certain lots were made the boundaries of the line dividing the old town of Mason from the new town of Greenville. The only authority which the selectmen had, that I can find, for their action, was in the law providing for the perambulation of towns, and the renewal of the marks and bounds; and it is the result of a perambulation under the statute which the plaintiffs claim to be fraudulent, and against which it seeks relief.
The earliest statute which has come to my knowledge on the subject is the act of 1719. Province Laws, p. 136. This act appears to have continued in force until the year 1791, when the provision for recording the proceedings of the selectmen was enacted. *Page 392
The provisions of these acts for perambulation were substantially reenacted in 1827, on the revision of the statutes in 1842, and by the General Statutes of 1867.
It is obvious to remark, that in these statutes no power is given to the selectmen, by agreement or otherwise, to establish a monument or a boundary. Their only function is to renew. The statute takes it for granted that the monuments being renewed every seven years, there could never be any difficulty or dispute about it. It supposes that there will be no difficulty in finding the marks and bounds, that the presence of the officers of each town would be a sufficient check upon those of the other, and that there could be no difficulty in making a satisfactory return, to be recorded in the books of each town.
The experience of thirty years, however, seems to have proved that this expectation could not be realized, and that cases would occur in which the selectmen would disagree about what marks and bounds were to be renewed; and it was found necessary to remedy the inconvenience by further legislation.
This was effected by the act of December 23, 1820, by which it was provided that in case of a disagreement of the selectmen the matter should be referred to the court of sessions, whose decision should have the same effect as an agreement of the selectmen. By the statute of June 26, 1827, the same provisions, substantially, were enacted, excepting that the court of common pleas was substituted for the court of sessions. By the Revised Statutes of 1842, ch. 37, sec. 6, an important change was introduced, and it was enacted that the decision of the court should be final and conclusive.
The term perambulation is not new to the law or custom of our English ancestors. In Hone's "Year Book," p. 589, is found the following account of a perambulation:
"A perambulation, or, as it might be more correctly called, a circumambulation, is the custom of going round the boundaries of a manor or parish, with witnesses, to determine and preserve recollection of its extent, and to see that no encroachments have been made upon it, and that the landmarks have not been taken away. It is a proceeding commonly regulated by the steward, who takes with him a few men and several boys, who are required to particularly observe the boundary lines traced out, and thereby qualify themselves for witnesses in the event of any dispute about the landmarks or extent of the manor, at a future day. In order that they may not forget the lines and marks of separation, they `take pains' at almost every turning. For instance: if the boundary be a stream, one of the boys is tossed into it; if a broad ditch, the boys are offered money to jump over it, in which, of course, they fail, and pitch into the mud, where they stick as firmly as if they had been rooted there for the season; if a hedge, a sapling is cut out of it, and used in afflicting that part of their bodies on which they rest in the position between standing and lying; if a wall, they are to have a race on the top of it, when, in trying to pass each other, they fall over on each side, — some descending, perhaps, into the still stygian *Page 393 waters of a ditch, and others thrusting the `human face divine' into a bed of nettles; if the boundary be a sunny bank, they sit down upon it, and get a treat of beer and bread and cheese, and perhaps a glass of spirits." The writer goes on to say, that "in years after, when the boys had become men, they would remember the brook by the wetting they had in it, the wall by the muddy ditch or the bed of nettles, the hedge by the flogging, and the sunny bank by the good cheer enjoyed upon it."
This description seems to contain the whole theory of the law on the subject of perambulations. It is always necessary in proving the boundaries called for in a charter, or in a deed, or in any other document, to identify the monuments by extrinsic testimony. So long as the witnesses are alive who saw the monuments placed in position and were present at the running of the lines, they can testify of their own knowledge to those monuments; but when those original witnesses are dead, which usually happens in no very long period of time, there is absolutely no means of identifying the marks and bounds excepting by tradition, hearsay, or reputation, for I believe that in this connection these words are nearly synonymous.
In Phillipps on Evidence, ch. 13, sec. 2, perambulations are discussed under the head of hearsay evidence. He says that Lord ELLENBOROUGH, in Weeks v. Sparke, 1 Mau. Selw. 687, "observes, upon the subject of perambulations, that they are in the nature of hearsay evidence, not of particular acts done, as that such a turf was dug, or such a post put down in a particular spot, for that would amount to evidence of ownership, but they are evidence of the ambit of any particular place or parish, and of what the persons accompanying the survey have been heard to say and seen to do on such occasions. And LeBLANC, J., observes, in the same case, that the evidence of perambulations might be considered, in a certain degree, as evidence of the exercise of a right, yet that it had been usual to go further, and admit the evidence of what old persons who are deceased have been heard to say on those occasions;" — and in the note to this passage Phillipps says, — "It is to be observed that perambulations are actually attended by a great number of strangers, as well as by official persons, commonly called the spadesmen. Perhaps, in giving evidence of the declarations of perambulators, it would be presumed that they were made by persons conversant with the boundary in question, and the occasion of the declaration might be considered as giving them weight."
I take it that few boards of selectmen would be so imprudent as to undertake a perambulation without the aid of some experienced surveyor, conversant with the marks and bounds, or the presence of those inhabitants of the towns whose age and acquaintance with the subject would enable them to point out the desired boundaries. Thus, the return of the selectmen, placed upon the records of the towns, would be, in fact, the result of what they could gather of the traditions and reputation with regard to those boundaries. It would be an infinitely more reliable aid to the memories of witnesses than the pains which, in the foregoing description of the English perambulation, are said to be inflicted upon the *Page 394 boys who are intended for witnesses. In fact, the statute having provided for the making of this record, I think we must infer an intention to make it evidence of the traditions and hearsay and reputation at the time when the perambulation was made. I am obliged to confess that I cannot now conceive of any other evidence which could possibly be expected of the identity of the marks and bounds, excepting what could be derived from the statements of living persons conversant with them.
None of these statutes provide for the use of the selectmen's records of perambulations as evidence in any case, and it was left wholly for the courts of law to determine what their effect should be.
The first case which I have found in the reports is Gorrill v. Whittier,3 N.H. 265. In this case it was held that selectmen have authority under the statute of 1791 to agree where an existing line is, and that such an agreement would be conclusive upon the subject; and a determination of the sessions under the statute of 1820, where an existing line between two towns was, was held to be conclusive. This was a suit between individuals, whose disputed boundary was the line between towns; and, if I understand the case, it was substantially held that the determination of the sessions under the statute of 1820 was conclusive between those parties.
The next case in order is Lawrence v. Haynes, 5 N.H. 33, in which it was held that the determination of the court of sessions establishing the line, in a suit between the towns, was not evidence of the true line between the parties, Lawrence and Haynes. On this part of the case RICHARDSON, C. J., says, — "It did not appear that either of these parties was in any way a party to those proceedings. The whole must therefore be considered with respect to this plaintiff and defendant as res inter alios acta; and we consider it as settled that no record of an adjudication can be used as evidence of the facts upon which it is founded, in a suit between persons who are strangers to the adjudication." To this point he cites Burrill v. West, 2 N.H. 190; Starkey's Ev., Part 2, secs. 60 and 57.
The court also held that perambulations by the selectmen of the towns were evidence between the parties to the same suit. In this case the same learned judge says, — "The lines of our towns have been so frequently perambulated, and the bounds and marks so frequently renewed, that the selectmen have always had the means of ascertaining the true line. It has been their duty to preserve the marks and monuments of the real line; and it has in all cases been the interest of one party at least in every case to adhere to the real line, and to suffer no encroachments. It would be very singular if the circumstance that a line has been perambulated and marked as the true line by men who had the means of knowing whether it was the true line or not, and whose duty and whose interest bound them to perambulate and to mark no line but the true one, must be held to afford no evidence of its being the true line. It cannot be holden: it is in all cases evidence.
"When a particular line has often been perambulated, and the bounds renewed and recognized by the selectmen of both towns, it is strong *Page 395 evidence of its being the true line. Phillipps's Ev. 183; 1 M. S. 685; 14 East. 330, note; Nicholls v. Parker, Starkey's Ev., part 1, p. 62, note z.
"The evidence resulting from the perambulation of the lines between towns is of the same nature as the evidence which results from the acts of the owners of adjoining lands when they perambulate the lines between their lands, and by agreement renew the marks and monuments."
Again: the same judge says, further on, — "It can hardly admit of a question that these perambulations are evidence in a controversy between towns as to the lines between them. But are they evidence in a suit between individuals? We think that they are. The declarations of deceased persons, who had no interest to misrepresent, are evidence of boundaries between the lands of individuals. And it seems to us that these perambulations, which are made by men who must be considered as public officers, and are made for public purposes, are entitled to a degree of credit which the declarations of deceased persons can under no circumstances claim. Starkey's Ev., part 2, sec. 47."
The next case in order is Bailey v. Rolfe, 16 N.H. 247. In this case it was held, according to the head note, that the perambulation of town lines is not evidence as to which of the two lines was the one intended by the act of the legislature fixing the common boundary of two towns, especially if it does not appear that a question has arisen as to which was the true one, and has been judicially decided by the selectmen in their perambulations.
GILCHRIST, J., after citing Gorrill v. Whittier, ub. sup., says, — "It may not be necessary in this case to decide as to the application of the principle of that case, or as to the extent or degree to which the perambulations of selectmen are evidence of the common boundaries of their respective towns. It is plain that the power to agree in cases of doubt may in some contingencies amount of necessity to a power to substitute a conventional for the true line. But we think that such cannot be the effect of perambulations where no questions appear to have arisen, and a line appears to have been adopted without any reference to another and widely different line, and without any intention on the part of the selectmen to decide judicially between the two lines.
"The question here is, not where the line is which the selectmen intended to perambulate, but whether the line which they intended to perambulate was the one indicated by the act. This, as we have intimated, is a question which does not appear that they ever undertook to settle; and it may be added, that it is one which is at least doubtful whether they had any power to settle, had they ever sought to do so."
The last case I have seen on this subject is Pitman v. Albany34 N.H. 577. In this case one of the head notes is as follows: "The proceedings of the selectmen of the adjoining towns in perambulating the line and renewing the marks and bounds are not conclusive evidence of the true location." SAWYER, J., says, — "What the force and effect of an agreement of the selectmen were to be was not expressly *Page 396 declared by either of these statutes. It was left by them to judicial interpretation. The object and intention of the legislature in these enactments could have been only to provide a mode for supplying fresh evidence, as often as once in every seven years, of the town lines, by a renewal of the old monuments and marks which fixed their location. The authority of the selectmen was in terms confined to renewing such marks and bounds — reviving the lost or doubtful evidence upon the land itself of the true boundary. The acts did not contemplate a negotiation by the selectmen in behalf of their respective towns for establishing a line, or an adjudication by the joint boards upon the question when it admitted of controversy or doubt. They were required to assent to and cooperate in the renewal of the marks and monuments upon the line which they understood to be the true and established boundary. Their proceedings were therefore ministerial rather than judicial."
Further on, the same learned judge, speaking of the judgment of the court of sessions, or the court of common pleas, under the statutes in force prior to the revision in 1842, in a case of disagreement between the selectmen of two towns, and which by those laws were to be of the same effect as the perambulations of selectmen, says, — "Such judgment, therefore, under those statutes, must be considered not to be conclusive, but merely to constitute evidence to be weighed by the jury with other evidence upon the matter, whenever the question as to where the true boundary was was put in issue."
Such are the principal utterances of the courts of New Hampshire on the subject of the records of perambulations of town lines as evidence. The statutes in no instance, that I remember, say anything about the use of such perambulations as evidence. They do not declare that they shall have any force, or if any, what. That is left to be deduced by the courts from the application of the principles of evidence, established by the common law, to such cases. It seems clear to me, as is said by SAWYER, J., in Pitman v. Albany, that the selectmen have no judicial powers. They cannot determine judicially any disputed question in regard to the lines. Their whole function is ministerially to renew the marks and boundaries which they find upon the land. If they cannot find the same marks and boundaries, or, in the words of the statute, "agree," the court has now power to decide the question. The effect of the selectmen's doings appears to depend upon the same principles of the common law which determine the effect of perambulations under the English custom of which I have spoken.
The present case finds that the respondents, selectmen of Mason, fraudulently induced the selectmen of Greenville to falsify a record of this nature; that, by giving false information, and which they knew to be false, in regard to certain matters connected with the marks and bounds, they induced the agents of Greenville to consent to the renewal of these marks and bounds in false positions, and to make a record of such false renewal to stand for all time as prima facie evidence of a falsehood. If this record is permitted to stand without objection, in the lapse of not many years the witnesses will be dead who knew about its falsification, *Page 397 and the record will stand as evidence which will always embarrass those who are seeking for the truth. If the fraud had not been discovered, perhaps in the space of the first seven years the record would have become established, and the fraud of the officials of Mason achieved.
There ought to be some remedy found for this wrong. It must be true that from the arsenals of the law some weapon can be drawn with which successfully to combat this fraud. If the facts are not as they now stand admitted by the demurrer, they ought now to be investigated.
Whether this record is a public act done by a coordinate branch of the government of equal power with the judiciary or not, I think it certain that the court has jurisdiction over these towns and their agents, and whatever the state of New Hampshire might do, or however it might choose to be bound by the fraudulent acts of selectmen considered as its ministerial agents, it seems to me clear that this court has the same power to prevent the defendant town from availing itself of the fraud of its selectmen, that it would have to prevent them from taking advantage of a contract, or a judgment obtained, by a similar fraud, and that this may be done by a suit instituted for the purpose under a sufficiently familiar head of equity jurisprudence. Story's Eq. Jur., sec. 820.
The result therefore is, that the town of Mason must be forever enjoined from making use of this record as evidence; and, according to the principles of the cases cited, this should be not only against its use as evidence against Greenville, but also against any other parties.
LADD and SMITH, JJ., concurred.
Decree accordingly.