Inhabitants of Barnstable v. Thacher

Wilde, J. This case depends on the question whether the plaintiffs have proved such a possession of the locus in quo as by law entitles them to maintain this action. To support an action of trespass quare clausum, it is necessary to prove the actual possession of the plaintiff, and an illegal entry by the defendant. The action is founded merely on the possession, arid it is not necessary for the plaintiff to show a right of property. He must prove such a lawful possession of the land as the defendant has no right to disturb ; but any possession is a legal possession against a wrong-doer. Graham v. Peat, 1 East, 246. Lambert v. Stroother, Willes, 221. Harker v. Birkbeck, 3 Bur [243] 1563. Com. Dig. Trespass, B. 2. Catteris v. Cowper, 4 Taunt. 547. A person in the actual occupation of land may maintain trespass against any person except the real owner, or the person having a right of possession. According to these well established principles, we are of opin on that the plaintiffs have proved such a possession of the locus in quo as entitles them to maintain trespass against any person, except against the right owner, or the person having a prior right of possession. To maintain an action of trespass, it is not necessary to have such a possession as amounts in law to a dis seizin. Tn a case reported in 4 Leon. 184, and in Godb. 133, Anderson, C. J. says, “If one intrude upon the possession of the king, and another man entereth upon him, he shall not have an action of trespass for that entry ; for that he, who is to have and maintain trespass, ought to have a possession. But in such case, he hath not a possession ; for every intruder shall answer to the king for his whole time, and every intrusion supposeth the possession to be in the king.” This doctrine is founded on the principle, that the king cannot be either disseized or dispossessed, and consequently the intruder cannot gain possession by his entry. The subsequent case of Johnson v. Barret, Aleyn, 10, is at variance with this doctrine; which is also doubted by Bayley, J. in Harper v. Charlesworth, 4 Barn. & Cress. 589, 590. See also Cutts v. Spring, 15 Mass. 135. This doctrine, however, (as Lord Kenyon remarked, 1 East, 245,) has no bearing on a case like the present. It is an exception to the general rule, and is founded on the prerogative of the king, and public policy. The question therefore is, whether the defendants, in the present case, had a right to enter the premises and to do the acts complained of. The defendants justify under a license from one Edward B. Hallett. The license proved, however, was given to three of the defendants only ; but as the defendants are charged as joint trespassers, the presumption is, that the other two defendants were assisting those to whom the license was given ; so that all the defendants were acting under the same license. Hallett, as ap [244] pears by the evidence, has for a long time claimed a right in the soil, and the right to pick cranberries on the premises. He claimed this right as one of the heirs of his father and grandfather ; but there was no proof that his father or grandfather had any title to the premises. It was proved, however, that under this claim of right he had from time to time, for forty years, picked cranberries on the premises, and had given license to ethers to pick ; that he never yielded to the claim and regulations of the plaintiffs, but continued to assert his right of possession, after the entry on the premises by them. This possession of Hallett, although it was.not exclusive, but was concurrent with others, and would not avail in an action by the proprietors of the land, is nevertheless such a possession as the plaintiffs had no right to interrupt. When they entered in 1831, with the intent to obtain exclusive possession of the premises, and the right of regulating the picking of cranberries, they had no title nor pretence of title; and as to Hallett, the town has acquired no better title since, so far as it relates to the exclusive right of picking cranberries. Hallett has resisted this claim, and has had concurrent possession with the plaintiffs, ever since they entered. Now when two parties have a concurrent or mixed possession, and neither party has any other title, nor the exclusive priority of possession, neither party can maintain trespass against the other. We think, therefore, that as Hallett had prior possession, he had a right to maintain it, notwithstanding the entry and claim of the town ; and if he had entered claiming title, at the same time the town entered, and had continued to maintain concurrent possession, neither party, it seems, could maintain trespass. The town had no better right to regulate the picking of cranberries than any individual had. Perhaps the town has had exclusive possession of the cranberry bogs cleared out, and planted with 'new vines by them ; but* according to. the evidence, the defendants did not enter upon those bogs. It is not necessary, therefore, to consider that question. The counsel for the plaintiffs has referred to an action commenced by them in 1833, in which they recovered judgment [245] against one Derrick for a trespass on the same locus, similar to that now alleged against the defendants. If I remember rightly, that case was defended on the ground of a custom for all the inhabitants of Barnstable and Yarmouth to pick cranberries on the locus, and the custom was decided, at the trial, not to be a good and valid custom. No question of law, however, was reserved in that case ; nor is it necessary now to decide whether such a custom be valid in law or not. The privilege of picking wild berries in waste and unenclosed lands, without any express consent of the owner, has been extensively enjoyed, I apprehend, in every part of the country. And if the owner of the land might object to such a privilege, it does not follow that a stranger may, without right or title, take possession of the land for the purpose of depriving parties of a privilege to the enjoyment of which the owner does not object. On this question of privilege, however, we give no opinion, being satisfied that the other ground of defence is well sustained. Plaintiffs nonsuit