Rodney’s Notes[*]
Supreme Court of Delaware, Sussex County.
November, 1796.
Wilson and Peery for plaintiff. Ridgely an Hall for defendant.
Wilson for plaintiff.[1] November 2, 1730, patent from the Proprietary to Henry Kimmey. May 4, 1727, survey to John Caldwell.
John Short. I have known the land on which William Swain lives 37 or 38 years. I know the boundaries a year or two before he bought it. Daniel Hopkins showed it to me. It is easterly from the house: on the edge of Green’s or Peterkin’s branch, ten or twelve yards from the edge on the west side, one-fourth mile below John Evans’ mill. I sawed pine stocks Truit Donaho brought to Evans’ mill. I saw Thomas Evans of Jehu’s Negroes cutting those stocks as I was going home. As I was coming down to the mill one day, I saw Truit’s team and cart by the stocks but did not see them hoist them up about three-eighths [of a mile] from the school-house east from thence. They were not towards Swain’s, but up Waller’s road. I showed John Short where the cart stood. I sawed twelve or fourteen. I saw this about six years ago, in the winter, not since the Land Office was open. The boundary was two or three hundred yards from the school-house.
James Short. I lived with Evans. The school-house is near a quarter mile from the mill. I cut stocks etc. for Evans on the land they now say is Swain’s. I cut a tree between the school-house and road leading to the furnace on the left hand of the road, a small oak it was, between the school-house and boundary, near three years ago by direction of Hance Evans. I was in Jehu’s employ twenty or thirty yards to the right, looking from the boundary to school-house. It was eleven inches at the stump, red oak. I have seen other trees on the northwest side of the
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line cut, do not know by whom. I never heard Jehu Evans tell his people to cut on Swain’s land.
Hales Spicer. In September, 1794, Swain accused him, Evans, of cutting on his land, or the land he held. Evans said he would cut on it whenever he had an opportunity.
Robert Lamden. I saw Hance Evans cut a pine tree down, thirty or forty steps or yards from the school-house towards the branch, three years last winter. I have seen Swain’s people getting rails next the mill.
William Stayton, cross-examined. Hance went to school to me.
John Short. I always heard that tree called Swain’s boundary, twenty-five years ago.
William Stayton offered to prove the lines of Kimmey’s Choice. Defendants object to his evidence, he being called by plaintiff to survey for him.
The Court were of opinion that Stayton could not give evidence in this cause from any knowledge which he obtained at the time he surveyed for Swain at his instance.
William Stayton. Evans’ land was connected and joined Swain’s on the survey I made for him. I plotted it for Evans, and the lines of that plot included the school-house, about thirty or forty yards. Evans seemed surprised at it and said he and Swain had agreed to set the school-house on the line, some years before.
John Short. I saw where stocks had been cut forty or fifty yards west from the school-house, the same where John Short, Sr., showed me the cart. Do not know when they were cut.
Deposition of Truit Donaho read.
John Willis. Last Spring was a year Swain accused him of trespassing on his land. Evans said, Run out your lands, and if I or my people have done so, I’ll pay you for it.
Absalom Lynch. Swain and Evans had an article of agreement when the school-house was built, in which they agreed that the school-house should be supported with wood from both. I expect the school-house was set on the line. [They] were both there.
Abraham Lynch. They agreed the school-house should be set as near the division line as they could tell at that time.
Ridgely. Trespass said to be done on a tract of land called Kimrney’s Desire. Patent produced. A patent that shows no title in the plaintiff, Swain, to Kimrney’s Desire; in patent, land called Summy’s Desire. Esp.N.P. 405, writ of trespass may be
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sued out either generally or specially, with or without a name, but if he gives a name to the land, he must be held to it, and his proof must correspond with his declaration. He must prove the trespass where laid.
Wilson. 6 Com.Dig. 388, where trespass lies. 2 Bl.R. 1089.
Hall. 2 Esp.N.P. 59, trespass done without fault, no action lies.
Peery. 6 Com.Dig. 369, a man may bring a trespass generally.