Soulia v. Stratton

Taylor, J. The plaintiff has sued in ejectment to recover the seizin and possession of a small piece of land which the defendant occupies and claims to own. The case was referred and was heard in the court below on the referee’s report. The plaintiff had judgment, and the defendant argues an exception thereto. The only claim relied upon for a reversal is that on the report there was not a disseizin of the plaintiff, nor a wrongful possession by the defendant, of the premises described in the complaint. It is not denied that the defendant was in possession of the disputed territory during all the time material, but the point relied upon is that the land claimed by the plaintiff is not included in the premises described in the complaint. The ease having been referred, this objection cannot avail the defendant. Any question of variance between the description of the premises in the complaint and the proof is avoided by the reference. Spaulding v. Warren, 25 Vt. 316, 321. In such case the pleadings are to be treated as adapted to the facts found, when no new cause of action is thereby brought in. Globe Granite Co. v. Clements, 92 Vt. 383, 386, 104 Atl. 104; McDonald v. Place, 88 *306 Vt. 80, 85, 90 Atl. 948. So, to entitle the plaintiff to recover, it is enough if the report shows that she had a legal right to the land in dispute, together with the right of possession at the time the suit was commenced. Spaulding v. Warren, supra. The parties are adjoining land owners, and the controversy arises over the location of the division line between their lands. The judgment was clearly right, if the line is where the plaintiff claims. The referee has found in effect that the line claimed by the plaintiff had been mutually recognized by the adjoining proprietors as their division line for more than fifteen years, accompanied by continued possession of the adjoining properties with reference thereto. The rule is well settled that adjoining owners may thus establish' the division line of their lands, which will be binding upon them and their privies. Crowell v. Bebee, 10 Vt. 33, 33 A. D. 172; Burton v. Lazell, 16 Vt. 158; Ackley v. Buck, 18 Vt. 395; Brown v. Edson, 23 Vt. 435; Spaulding v. Warren, 25 Vt. 316; Clark v. Tabor, 28 Vt. 222; Davis v. Judge, 46 Vt. 655; Camp v. Camp, 59 Vt. 667, 10 Atl. 748; Vermont Marble Co. v. Eastman, 91 Vt. 425, 450, 101 Atl. 151. See note White v. Everest, 1 Vt. (Ann. Ed.) 181. Judgment affirmed.