Before former declarations of a witness can be used to impeach
or contradict his testimony, his attention must be drawn to what
may be brought forward for that purpose, with particularity as to
time, place and circumstance, so that he can deny it or make any
explanation tending to reconcile what he formerly said with what he
is testifying.
After a witness' testimony has been taken, committed to writing,
and used in the court, and by death he is placed beyond the power
of explanation, then, in another trial had after his death, former
declarations by him, whether by deposition or otherwise,
contradictory to those made by him in that testimony cannot for the
first time be brought forward and used to impeach it.
This is the same cause brought here and heard at October term,
1884, and reported
113 U. S. 1l3 U.S.
594. The case now made is thus stated in the opinion of the
Court:
This is an action of ejectment brought by Watson, the original
plaintiff, in the District Court for the County of Bell, in the
State of Texas, and afterwards removed into the Circuit Court of
the United States for the Northern District of that state. It was
twice tried before a jury, which failed in each of these trials to
come to an agreement. It was tried a third time, which resulted in
a verdict and judgment for the plaintiff. A writ of error was taken
to that judgment, by which it was brought to this Court and
reversed. The case is reported as
Ayers v. Watson,
113 U. S. 594. It
was thereupon remanded to the circuit court for a new trial, where
a verdict was again had for the plaintiff, and the judgment
rendered on that verdict is before us for review.
The details of the controversy may be found in the report of the
case above mentioned. While it was pending in the district court of
Bell County, the following agreement between the parties was made,
which simplifies the case very much:
Page 132 U. S. 395
"A. E. Watson"
"v."
"Frank Ayers
et al."
"It is agreed and admitted by the defendants for the purpose of
this trial at this term of the court that A. E. Watson, plaintiff
in this cause, is entitled to all the right, title, and interest
granted by the State of Texas to the heirs of Walter W. Daws on
September 16, A.D. 1850, said land patented being one-third of a
league, described in said patent No. 542, vol. 8, and which said
land is described in plaintiff's petition; but defendants say that
said one-third of a league of land so patented as aforesaid to the
heirs of Walter W. Daws is covered by the grant of the government
of Coahuila and Texas to Maximo Moreno of eleven leagues of land,
as set forth more fully in defendants' petition, which said
eleven-league grant is an older and superior title to that of
plaintiff's, and the title to which is in the defendants in this
cause."
"X. B. SAUNDERS"
"W. T. RUCKER"
"F. H. SLEEPER, and"
"A. M. MONTEITH"
"
Attys. for Defendants"
By this agreement, it will be seen that the sole question at
issue was whether the land in controversy was covered by the
eleven-league grant to Maximo Moreno. A plat of that survey is
found in the bill of exceptions. On the trial, which resulted in
the judgment which we are now called to reconsider and which, as we
understand it, was the fourth time the case had been tried by a
jury, the defendant introduced the deposition of F. W. Johnson, the
surveyor who had made the survey under the Moreno grant. It seems
that his deposition had been taken twice in this action, and,
though the details of those trials are not before us, it had no
doubt been used in them. But prior to the trial which we are now
reviewing, he had died. It appears from the bill of exceptions that
in these depositions, he had been cross-examined by plaintiff's
counsel. Plaintiff, in rebuttal to this testimony of Johnson,
offered
Page 132 U. S. 396
in evidence a deposition of the said Johnson taken in 1860 in a
suit between other parties in which his testimony with regard to
the matters to which he testified in the depositions offered by
defendant varied materially from these latter depositions. To the
introduction of this deposition of 1860 the defendants objected,
and, their objection being overruled, took this exception. As we
think the judgment of the court below must be reversed on account
of this ruling, all that relates to it in the bill of exceptions is
here reproduced:
"It was admitted by both parties that the upper and lower
corners on the river of the Maximo Moreno eleven-league grant are
extant as called for in the original grant to Maximo Moreno, and
their corners are not in dispute."
"The defendant read in evidence the depositions of F. W.
Johnson, taken in 1878 and 1880, in which he testified that he was
principal survey or for Austin's colony. . . . The first survey
made was the Maximo Moreno eleven-league survey. This survey was
commenced at the point opposite the mouth of the Lampasas River, as
called for in the field notes of the grant, and a line was run
thence on the course called for in the grant, the distance called
for, the chain being used to measure the distance. The northwest or
second corner called for in the grant was thus established by him,
the distance giving out in the prairie. In running the west line, I
made an offset to avoid crossing the Leon River, which was about 50
or 60 vrs. wide. This offset was made soon after leaving the
beginning corner, there being a peculiar bend in the river at that
point. From the northwest corner thus established, the second line
was run the course and distance called for in the grant. Several
streams were crossed on this line at distances not now recollected,
and the northeast corner established on two small hackberries in
Cow Creek Bottom. From the northeast or third corner so
established, a line was run in the course called for in the grant
to San Andres River. This last line was marked, but not measured,
because it was not usual or necessary to measure the closing
line."
"It was admitted by the defendant that the distance as measured
on the ground from the northeast corner to a creek
Page 132 U. S. 397
called for in the grant was some four thousand varas more than
the distance called for -- that is, the distance is 7,500 instead
of 3,500 varas, and on cross-examination, being asked to account
for the discrepancy, said the distances called on that line were
not measured, but guessed at. No part of the east line was
measured. The exterior lines were marked with blazes. The corner
trees and bearing trees, where there were such, were marked with
blazes, with two hacks above and two below. In answer to a question
on cross-examination, he said that he did not begin the survey at
the southeast corner, but he began at the southwest corner at the
three forks at the mouth of the Lampasas, and actually traced the
lines in the order set forth in the field notes. The field book
containing the same, which I kept, I examined, which I don't
remember to examine until a month ago, and as hereinbefore
stated."
The plaintiff, in rebuttal to Johnson's testimony, as above set
forth, it appearing that said Johnson died in 1884, offered to read
in evidence a deposition of said Johnson, taken in 1860 in a
certain suit then pending in Bell County, Texas, wherein David
Ayers was plaintiff and Lancaster was defendant, in which he
stated, in answer to a question therein propounded, that he
"began the Moreno survey at the southeast corner, and ran thence
northerly. The north line was then run westwardly, and the third,
if run at all, was run southwardly to the river. I am of the
opinion that no western line was run, but was left open; but the
eastern and northern lines were run and measured. It was not usual
to measure the closing line. To the reading of which last-mentioned
deposition, proven to be in the hand writing of Johnson, taken in
1860, the defendants objected upon the ground that the deposition
had been taken in another and different cause, between other
parties, before the institution of this suit, and, the same witness
having testified in answer to interrogatories and
cross-interrogatories propounded herein in 1877 and 1880,
respectively, it was not competent as original evidence nor
admissible to contradict or impeach the testimony of the witness
Johnson as given in his deposition read by the defendants,
notwithstanding the death of Johnson, which objection the court
overruled, and admitted
Page 132 U. S. 398
the testimony so objected to, to which ruling of the court the
defendants then and there excepted, and still except, and the same
is allowed as exception No. 1. "
Page 132 U. S. 401
MR. JUSTICE MILLER, after stating the case as above reported,
delivered the opinion of the Court.
A very earnest and able argument is presented to us to sustain
this ruling upon the general ground of the liberality of courts in
admitting what would be otherwise called "hearsay evidence" in
regard to boundaries, such as tradition, general understanding in
the neighborhood, declarations of persons familiar with the
boundaries and with the objects on the lines of the survey, and
others of similar character. An opinion of MR. JUSTICE FIELD,
delivered in the Supreme Court of California in 1860 in the case of
Morton v. Folger, 15 Cal. 277, is much relied on in this
case, and it is also said that the courts of the State of Texas
have established the same principle, which has thus become a rule
of property in that state which should be followed in this case. If
the principles stated in the decision of the California court and
in the decisions of the Supreme Court of the State of Texas were
indeed applicable to the case before us, we would hesitate very
much in reversing the judgment on this ground, and indeed should be
inclined, on the weight of those authorities and in the belief that
in the main they are sound, to overrule the exception. But
Page 132 U. S. 402
the objection in the present case to the deposition of Johnson,
taken in 1860, does not rest upon the ground that it is hearsay
testimony, or that it does not come within the general principle
which admits declarations of persons made during their lifetime of
matters important to the location of surveys and objects showing
the line of those surveys. Johnson's deposition of 1860, if it
stood alone and was introduced upon the trial of this case for the
first time as independent testimony in favor of plaintiffs, might
be admissible. It is not necessary to decide that question, because
such is not the character of the circumstances under which the
testimony was admitted. As we have already said, there had been
three trials of this action, during which Johnson was alive and was
a competent witness for either party. All his testimony was given
by way of deposition. This only renders the manner of taking it
more deliberate, and if it was to be contradicted by anything he
had said on former occasions, made it the more easy and reasonable
that plaintiff should have called his attention to the former
statements which they proposed to use. It will be observed that the
plaintiffs did not introduce or offer to introduce this deposition
of Johnson of 1860 as a part of their case, when it was their duty
to introduce their testimony. They therefore did not rely on it as
independent testimony in their favor. But after Johnson's
deposition had been given in the case itself, and he had been
cross-examined by the plaintiffs in that deposition in regard to
his testimony, and after he was dead and could give no explanation
of his previous testimony of 1860 which might show a mistake in
that deposition or give some satisfactory account of it consistent
with his testimony in the principal case, this old deposition is
for the first time brought forward to contradict the most important
part of his testimony given on the present trial. The importance of
this matter, as it was presented to the jury, will be readily
understood when we revert to the fact that the two southern corners
of the survey are established without question, and are found on
the San Andres River, and the controversy concerns the question
whether the east line and the west line of that survey, which are
straight lines almost due north, extend so far north that
Page 132 U. S. 403
the northern line between these lines is so far north as to
include the survey of Daws, under which plaintiff claims. In the
principal deposition of Johnson, as we have seen by the bill of
exceptions, he states that this survey commenced at the
southwestern corner on the San Andres River, and was run northward
the distance called for in the grant, and actually measured by the
chain. The northwest or second corner called for in the grant was
established by him, the distance giving out in the prairie. From
the northwest corner thus established, the second, the line was run
for the course and distance called for in the grant, and the
northeast corner established on two small hackberries on Cow Creek
Bottom. From the northeast or third corner thus established, the
course was run to the San Andres River. This last line was marked,
but not measured, because it was not necessary to measure the
closing line. In answer to questions on cross-examination, he said
he did not begin at the southeast corner, but he began at the
southwest corner, and actually traced the lines in the order set
forth in the field notes. He said the field book, containing these
notes, "I kept and examined, which I do not remember to have
examined till a month ago, as hereinbefore stated." The deposition
offered by plaintiff states distinctly that he began the Moreno
survey at the southeast corner, and ran thence northerly. The north
line was then run westwardly, and the third, if run at all, was run
southward to the river. And he further says:
"I am of the opinion that no western line was run, but was left
open, but the eastern and northern lines were run and measured. It
was not usual to measure the closing line."
It was admitted that the distance as measured on the ground from
the northeast corner to a creek called for in the grant was some
four thousand varas more than the distance called for, and the
witness on cross-examinations in the principal depositions read by
the defendant in this case, being asked to account for this
discrepancy, said, "The distances called on that line were not
measured, but guessed at. No part of the east line was measured."
The discrepancy between these two depositions is manifest, and that
discrepancy is in a matter which relates directly to the question
whether the Moreno grant as it
Page 132 U. S. 404
was surveyed included the land embraced within the Daws grant,
under which plaintiff asserts claim. If the jury believed in the
truth of the depositions of Johnson taken by the defendant in this
case at which he was cross-examined by the plaintiff, it affords
the strongest evidence that the Daws claim was included in the
lines of the Moreno survey. This deposition is supported by the
field notes and by the reference of Johnson himself to those field
notes a very little while before he gave his deposition. If, on the
contrary, the eastern line was the one which was actually run and
measured, beginning at the southeast corner of the survey on the
San Andres River, then the fact that that line was actually run and
measured would probably have a very great influence in the mind of
the jury on the question in issue. And whether this was so or not,
the contradictory statements of Johnson under oath might destroy
the value of his testimony before the jury.
The circumstances under which the former statements of a witness
in regard to the subject matter of his testimony, when examined in
the principal case, can be introduced to contradict or impeach his
testimony are well settled, and are the same whether his testimony
in the principal case is given orally in court before the jury, or
is taken by deposition afterwards read to them. In all such cases,
even where the matter occurs on the spur of the moment in a trial
before a jury, and where the objectionable testimony may then come
for the first time to the knowledge of the opposite party, it is
the rule that before those former declarations can be used to
impeach or contradict the witness, his attention must be called to
what may be brought forward for that purpose, and this must be done
with great particularity as to time and place and circumstances, so
that he can deny it, or make any explanation intending to reconcile
what he formerly said with what he is now testifying. While the
courts have been somewhat liberal in giving the opposing party an
opportunity to present to the witness the matter in which they
propose to contradict him, even going so far as to permit him to be
recalled and cross-examined on that subject after he has left the
stand, it is believed that in no case has any court deliberately
held that after the witness'
Page 132 U. S. 405
testimony has been taken, committed to writing, and used in the
court, and by his death he is placed beyond the reach of any power
of explanation, then in another trial such contradictory
declarations, whether by deposition or otherwise, can be used to
impeach his testimony. Least of all would this seem to be
admissible in the present case, where three trials had been had
before a jury, in each of which the same testimony of the witness
Johnson had been introduced and relied on, and in each of which he
had been cross-examined, and no reference made to his former
deposition nor any attempt to call his attention to it. This
principle of the rule of evidence is so well understood that
authorities are not necessary to be cited. It is so well stated,
with its qualifications and the reasons for it, by Mr. Greenleaf in
his work on Evidence, vol. 1, in §§ 462-464, inclusive,
that nothing need be added to it here except a reference to the
decisions cited in his notes to those sections.
See also Weir
v. McGee, 25 Tex.Supp. 20, 32.
It will thus be seen that the principle on which counsel for
plaintiff in error objected to this deposition of Johnson is not in
conflict with the case of
Morton v. Folger, 15 Cal. 277,
nor with any case to which we are cited, decided by the Supreme
Court of Texas. That ground, as stated in the bill of exceptions,
is
"that the deposition had been taken in another and different
cause, between other parties, before the institution of this suit,
and the same witness having testified in answer to interrogatories
and cross-interrogatories propounded herein in 1877 and 1880,
respectively, it was not competent as original evidence, nor
admissible to contradict or impeach the testimony of the witness
Johnson, as given in his deposition read by the defendant,
notwithstanding the death of Johnson."
We are very clear that the deposition of 1860 was improperly
admitted, and its important relation to the issue tried by the jury
was such that the judgment rendered on it must be reversed, and the
verdict set aside, and a new trial granted. There are other
assignments of error, the consideration of which is not necessary
in the decision of the case before us,
Page 132 U. S. 406
which, with due attention to what we decided when the case was
here before, to which we still adhere, may not arise in another
trial.
Reversed.
