Osborne v. . Johnston

Peakson, C. J. What are the boundaries of a tract of land, is a question of law, to be decided by the Court, in putting a construction upon the deed. Where the boundaries are, is a question of fact for the jury. By the statement of the case, it is agreed, that if the boundaries of the deed of William to Jesse Reeves be the line of a certain tract, owned by Jesse, the deed does not include the locus in quo. If the boundary be the line of a ■certain other tract, owned by Jesse, or if the boundary be the lines of both of the tracts, then the deed does include the locus in quo. As far as we are able to understand the -case, we incline to the opinion that it was the duty of the Judge to have decided this question, and to have instructed *25 the jury, either that the line of the one tract, or of the other, or of both, was the boundary of the deed. The effect of his decision one way or the other, being agreed on as a matter of fact, in reference to the locus in quo; there would have been nothing for the jury on that point. It seems to us to be error, to leave the jury to grope their way in the dark, without any instruction save “that the call in the deed from William to Jesse Reeves which called for Jesse Reeves’ own land, meant the land of Jesse Reeves lying north of the land in dispute.” It would have been more satisfactory, had the case been accompanied by a diagram, and copies of the deeds, to enable this Court to see that the point was presented. Assuming that this part of the case turned upon the question as to whether the boundary was the line of the one tract or of the other or both; that certainly was a question of law, dependent upon the construction of the deed, which from the confused manner of stating the case, is so hard of solution, that we should have remanded the case for a second trial. The defendant being entitled to a venire de novo on another point, prevents the necessity of remanding it. Upon the other point, according to our understanding of the facts, we differ with his Honor; although in this particular, likewise, the statement is not as clear and satisfactory as could be desired. It is set out, that Doughton in fencing his fields, on the old Reeves tract, ran the fence across the neck of a peninsula formed by the bend of the river, and thus closed access to the peninsula, except by crossing the river, and to avail himself of the peninsula which was thus closed, as a pasture for his cattle, Doughton fixed a gate in the fence, where it crossed the peninsula. It is also set out, that a portion of the peninsula was owned by another person; so Doughton’s fence across the neck was partly on his own, and on the land of another, and thus closed access *26 to the land of the latter in the peninsula as well as to the other part of it, which is the locus in quo. If Doughton made the fence across the neck, for the avowed and unequivocal purpose of taking possession of the peninsula, and using it for a pasture as his own land, it may be such a possession would ripen the title. But if he made the fence for the purpose of “fencing in” a field on the old tract lying north of the peninsula, the circumstance, that by reason of the river a part of his fence had the additional effect of closing the peninsula, except by crossing the river, would not constitute such a possession as to ripen the title. To have that effect, the possession must be adverse, uninterrupted, open, and unequivocal; so as to expose the party to an action. This is the teste. Suppose a grantee of the state had sued Doughton for making the fence across the neck, and thereby taking possession of the peninsula, he could in this view of the case have said, “I made the fence in order to enclose the field on the old Reeves tract and turned my cattle out in the range through that part of my fence, and the accident that the river happened to run in such a manner as to exclude the cattle of other people, no more makes me a trespasser than if I had turned my cattle into the range at any other place.” If this view of the facts be the true one, he did not expose himself to an action. The matter ought to have been submitted to the jury with this explanation, as to what constitutes such a possession as will ripen color- of title. It was error simply to say “If Doughton’s fence ran across the whole peninsula, and he used the land below, as a range for his own cattle exclusive of other cattle, &c., his possession would be such as would ripen color of title into a good title.” There is error. Pee, Cueiam. Teivire de novo»