Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1914-11-26
Penobseot County.

Luman c. Shepherd VS.. Maine Gen.
trail Railroad Company. Rescript
Spear. j.
This action is brought under R. S.
Chapter So, Section 70 to recover dam
ages for the burning of a maple
growth on the land of the plaintiff
in the town of Dexter.
The plaintiff declared upon his own
seizin, and described his land by
metes and bounds. He then further
describes it as being in the town of
Dexter and lying along side of and ad-
joining the railroad track of the Maine
Central Railroad Company, known as
the Dexter Branch, and sometimes
called the Dexter and Dover branch
of said railroad"
The plea was the general ISSUE
Under this declaration and plea the
plaintiff proved his title by the use
OF plan, and by oral testimony. He
offered no evidence of a paper title.
The plan was used under the eye OF
the court without objection by coun-
sci and must be assumed to be sub
stantially correct. Unfortunately the
plan was not made part of the case
and therefore is not before us. But
the record shows that it was before
the court and jury at nisi and recog-
nized by counsel upon both sides, as
substantially correct representation
of tho locus described in the writ The
only proof Of title is shown by the
following testimony: @. Now will you
describe on the plan the land that is
owned by you? He then proceeds to
describe the land owned by him by
the use of the plan.
No objection or question was made
by the defendant as to the truth of
the plaintiffs claim of ownership, nor
as to the accuracy of the plan which
was used to indicate and explain the
extent and boundary of the burned
area, as set forth in his writ.
There can be little doubt that the
claim of ownership as made by the
plaintiff; his minute description on
the plan of his damaged premises; the
conceded truth of his testimony up
on both ownership and accuracy of the
plan; the omission to call for any fur
ther proof of tile or description; were
sufficient, under the circumstances OF
this case, to afford prima facie evil
dence of title. But when both sides
had closed their case the defendant
had made no objection to any varia-
ton between the proof and the alle-
cation; raised no question as to the
accuracy of the plaintiffs description
of the area burned over; offered nc
suggestion of anything wanting to en-
able the court and Jury to fully I'M
derstand the case; and introduced nc
evidence in defense to explain modi-
fly or contradict any contention OF
fact sought to be established by the
plaintiffs evidence; but after verdict
against it the defendant for the first
time raises objections to proof of IT,
tie and variation between proof and
pleading.
At this juncture arises a question
OF practice, how far party can take
advantage of inadvertancies if he
wins, and avoid the disadvantages. il
he loses. Upon this point we think
1t is well settled, that a party who
would have the advantages of an over
| sight if he wins, must take the dis
advantages of the same oversight, II
he loses. He must be deemed to have
waived the deficiencies, under the cir
cumstances, if there is sufficient in
J all the testimony to make a Nprima
facie case