Hoopes v. Garver

The opinion of the court was delivered by Chambers, J. This case presents a controversy between the owners of two adjoining farms, about the location of their boundary fence, involving the question of title to about one-eighth of an acre of land, of little value. It, however, involves in its decision principles of moment to many of the owners of land in this commonwealth, in relation to their boundary fences and the occupancy of them, that demand a more full report of the ease and the law appertaining, than if it related exclusively to the small piece of land now in controversy. There is no subject-matter that oftener disturbs the peace and harmony of adjacent land-owners, than their boundary fences, exciting a spirit of controversy and litigation, of which there is a specimen in the- case now under consi — 523 — deration, and which it is the policy of the law to discourage and restrain. The plaintiff and defendant below held their lands by titles derived from Jacob Stong, who died before 1820. Hoopes obtained his title by purchase from Joseph Stong, the son of Jacob, in the autumn of 1837, whose paper title embraces the strip of land in dispute. Lefevre, the plaintiff below, having no paper title to the land, relies on an alleged adverse possession for twenty-one years :to give him title, before the erection of the new post-and-rail fence by Hoopes, in 1844 and 1847, and for the erection of which this action of trespass q. c.f. was brought by Lefevre against Hoopes. In the action, the jury, under the charge of the court below, found for the plaintiff, Lefevre, sixty-five dollars damages; to which charge the defendant took exception. The plaintiff in error assigns for error in the charge of the court to the jury, 1. That the court erred in charging the jury that the ascertainment of the boundaries of the whole tract about to be conveyed by the vendor to the vendee, was not such an entry as suspended the operation of the statute, and that the design in making the entry was not to resume possession, but that it was made in following the courses and distances in the deed. It is alleged by the plaintiff in error, and the allegation is supported by the record, that in this instruction the court withdrew entirely from the jury the consideration of the character of the entry,' and the effect of it, as made by Stong and Hoopes, at the time of the survey, in the presence of Lefevre, and the conversation between him and them in relation to this disputed land, on or in view of the land, and which, as facts material to the rightful decision of the question, ought, it is said, to have been submitted to the consideration and finding of the jury, as the entry, acts, and conversation of the parties were at a time, when the statute of limitations was not pretended to be a bar. The court, in the preceding part of their charge, did submit to the jury the question of adverse possession, as one of fact, for their determination—and whether there was an adverse possession in the plaintiff for more than twenty-one years before the injury and trespass complained of; and did instruct tlpe jury that to constitute an adverse possession, it must have been Hostile, visible, notorious, and continued. Yet when the court remarks on the acts and conversations of the parties at the time of making the survey, which were material in relation to the entry, the assertion of right by Stong and Hoopes, and the character of the' possession then claimed by Lefevre, they are withdrawn entirely from the jury, as a question of law which the court assumes to decide, and instructs the jury, “that the ascertainment of the boundaries of the whole tract about to be conveyed by the vendor to the vendee 'was not such an entry as suspended the operation of the statute. The design in making — 524 — the entry was not to resume the possession; it was made in following the courses and distances of the deed." It was necessary defendant should have made an assertion or claim of ownership to the property in dispute.” “ We omitted,” say the court, “ to call your attention to what took place between Hoopes, Stong, and Lefevre, when they met at the time of the survey. This will be taken into consideration by you.” It is in evidence that Stong, the owner of the land adjoining Lefevre, his brother-in-law, had, in the autumn of 1837, sold this land at public sale, to Abraham Hoopes. Shortly after, in the same year Stong and Hoopes go upon the land with a surveyor and assistants to ascertain its boundaries and quantity. In doing so, they enter on this piece of land in dispute, go to the corner within Lefevre’s enclosure to run from, in order to ascertain and fix the location of the boundary-line on the side of Lefevre, according to the draft, and the right of Stong the vendor, and Hoopes the vendee, as well as to ascertain the quantity to be paid for by Hoopes. Whilst so engaged, Lefevre comes to them at the cross-road adjacent to the land in controversy. We cannot suppose Lefevre ignorant of the public sale of the adjoining farm, and the purpose of Stong and Hoopes, in making the survey and entering within the field, to assert the extent of the claim and right of Stong, by running the line. From the remark of Lefevre and his acts, it would appear that he observed and did not mistake their acts in entering within his enclosed field, and surveying off the small piece of land in dispute, by a line diverging a few feet from the old fence, extending to the public road, and embracing, as is stated, about the eighth of an acre. Lefevre does not remonstrate against this entry and survey as an encroachment on his land, nor does he assert that this piece of land was his property, but appeals to Stong as the owner, with whom he was familiar, saying, “ Joe, you know very well your father promised me that I should have that piece of land:” not that it was his, or that it had been granted or given to him, but that there had been a promise that he should have it, but on what terms is not stated. This remark is addressed to Stong, the claimant, and in the presence of Hoopes, the purchaser. Stong replied that if Mr. Hoopes had a mind to give it to him, he might. Hoopes says in answer, that he has no land to give away. The allusion in this conversation, says the surveyor, was made to the land in dispute. Lefevre, it would seem, made no resistance or opposition to the entry and survey, nor, after the reply of Stong and Hoopes, manifested any dissatisfaction, but passed with the party pleasantly as far as his line went, his son Jacob holding the sight-pole up the road. The question is, what is the character and effect of this entry, accompanied with such acts and conversation of the parties in interest, on the possessory title, and the operation of the statute of limitations. The design of this statute was to give peace and quiet — 525 — to the community. It has been well called a statute of repose, and experience has proved' most satisfactorily the policy of it. But it is not to be used as a sword of offence, to do manifest wrong. We do not deem it necessary to go beyond the adjudications within this commonwealth to determine the character of an entry on land that is to save the operation and bar of this statute. In the case of Holtzapple v. Phillibaum, 4 Wash. C. C. R. 356, it is ruled that to constitute a legal entry on land to avoid the bar of the statute, the party must enter with intent to claim the possession, and must do some act to prove that such was his intention by acts amounting to a trespass on the land, or he must declare that he enters for the purpose of claiming or taking possession. No particular form of words is prescribed by the law; the substantial part is the taking, or declaring an intention to take or claim possession. An entry on land, says Chief Justice Gibson, in delivering the opinion of this court in Altemus v. Campbell, 9 Watts 30, “ avoids the operation of the act of limitation, if accompanied by an explicit declaration, or an act of notorious dominion, by which the claimant challenges the right of the occupant.” So in the case of Miller v. Shaw 7 Ser. & R. 129, it is said, where a person enters animo clamandi, as when he enters and surveys the land, it operates as a bar to the act; and where the intent with which the entries were made, is doubtful, the question of intention was to be submitted to the jury. In the case of Ingersoll v. Lewis, 1 Jones 212, per Rogers, J., it is ruled that “where the agent of the owner enters upon land with the avowed object of claiming it, making a survey thereof with the knowledge and assent of the person in possession, these acts operate to bar the running of the statute; and if the proof of them is satisfactory to the jury, the court should give a binding direction to that effect.” Other cases in this court might be referred to in affirmance of the law of entry in relation to the bar of the statute as contained in the cases already cited. In the case under consideration, the entry was made in 1837, before the alleged bar of the statute, by Stong, the owner, and Hoopes, the purchaser of his right, with the surveyor and his assistants ; and though for the purpose of surveying the entire tract, it was to include within that survey the piece of land since in dispute. They proceed to make that survey, including the land since claimed by Lefevre. Was there not in this act of survey, by such parties, in the presence of Lefevre, the occupant, an entry with a declaration of claim ? an act of notorious dominion, by which Stong challenged the right of Lefevre ? Did not Lefevre so understand it ? He appeals to the recollection of Stong, if his father had not promised him that he should have that bit of land. Lefevre asserts no title in himself, or claims any possession adverse to any other. He makes no opposition or remonstrance against the assertion of claim by Stong, nor exhibits any further dissatisfaction, but passed — 526 — with the party pleasantly as far as his line went. Is there in the remarks or conduct of Lefevre, a single feature of hostility to the claim of Stong thus publicly made ? Does he not exhibit acquiescence and submission to the then act of ownership on the part of Stong ? Could there be any other reasonable inference from that acquiescence than that he held this bit of land, as he called it, subject to the will and pleasure of Stong ? If Lefevre then intended to rely on an adverse possession in himself, his conduct and silence were such as to deceive and mislead both Stong and Hoopes, and allow Hoopes to pay his money for land surveyed to him, and which he, Lefevre, did not then claim, and which he afterwards attempts to take from him by color of law. Having been silent after the reply and refusal of Stong and Hoopes to give him this land, is he afterwards to be allowed to assert a claim inconsistent with that silence and submission ? If Hoopes delayed a few years to take possession of the land within his boundary, by making a new and more permanent fence, is the occupant, who had recognised his right, to profit by the delay ? It is well said by Chief Justice GrlBSON, in Sailor v. Hertzhog, 2 Barr 184, why should an occupant be protected who has himself induced the delay by insincere professions of submission, and how can his intention be made to appear by any thing else than his declaration ? It is for the jury to decide on doubtful conversations, how far they amount to a recognition of title: Mills v. Shaw, 7 Ser. & R. 129. If Lefevre did not intend to hold in hostility, it is settled by Criswell v. Altemus, 7 Waits 566, and Sailor v. Hertzhog, 2 Barr 184, that the possession was not adverse. In the interior and western part of this State, most of the boundary fences on farms are what are called worm-fences, of easy and simple construction; and which are made as well as changed, with but little expense or labor. This makes the owners of the adjoining lands less exact in placing them on the boundary-line, than when they make a more permanent and expensive fence. There is, in the first class of cases, frequently a departure from the exact line, occasioned by mistake, want of skill, or want of attention in the maker; and, on an extended straight line of some distance, there will be diversions on both sides from the right line. In such cases, between neighbours, there are generally a common forbearance and acquiescence, which are evidence of permission, when the encroachment is small; and as such, these fences are on both sides amicably repaired for many years, by dividing the distance and selecting their parts, without any intention in the one to acquire a right by possession, or any suspicion in the other that by his indulgence and forbearance he was to lose his established and rightful boundary. The occupancy of land bounded by a fence so made and kept up with all its curvatures, to give title by adverse possession for twenty-one years against the adjoining owner, where the — 527 — encroachment is but a small diversion from the real line, should be obvious and unequivocally adverse—the hostility so marked as not to be mistaken, and not dependent on inference from occupancy, as might be allowed in the case of an entire tract or a considerable enclosure, which would be visible and notorious. We would say, in reference to the possession of a small strip of land along a boundary fence so situated, as was said by the court in the case of Gray v. Creary, 4 Yeates 496, “ that the evidence of possession does not apply with the same force as when the whole of a tract of land is held adversely.” Slighter circumstances of acquiescence in the boundary fence, where the division was not obvious, might be allowed to show that the possession was not adverse, but subject to the will of the real owner. In the case under consideration, the learned judge of the Court of Common Pleas seemed to have considered that the question of adverse, continued, hostile, and visible possession had been submitted explicitly to the jury; yet, in assuming to instruct the jury, as a matter of law, that the entry on the land by Stong and Hoopes, with the circumstances attending the survey, the interview with Lefevre, and the conversation and acts of the parties,' as testified to by the witnesses, did not suspend the operation of the statute, these material facts and circumstances were by the court withdrawn from the jury, instead of being submitted to the jury for their consideration, with the instruction that if the proof of the entry, survey, declarations, and acts of the parties were satisfactory to the jury, it would operate to bar the running of the statute. On this point, the court is of opinion there was misdirection and error in the charge of the court below to the jury. As to the second error assigned by the plaintiff in error, that the court erred in charging the jury that the amount of damages should be regulated by the injury the plaintiff sustained, this court is of opinion that though the damages appear to be excessive, yet, as no specific instructions were asked from the court to the jury, by the counsel of the plaintiff in errorand as the court instructed the jury that the damages should be regulated by the injury the plaintiff sustained, this court will not intend that the damages were for any thing else than the legal injury, for which the plaintiff was entitled to damages. Judgment reversed, and venire de novo awarded.