Tompkins v. Wyman

Morton, J. The tract of land which this suit concerns was originally owned by commoners. In 1723 it was divided among the proprietors by metes and bounds, and was thereafter held [561] by them in severalty, but was used and improved by them in common as a pasture, they acting as a quasi corporation. The proprietors thus improved the lands up to 1845, when they ceased to hold meetings, the most of them having sold their interests to Ephraim Brown, through whom the petitioners claim. The respondent proved that he owned the lands described in his answer, and that up to 1872 he, and those under whom he claimed, improved the lands as before by pasturing cattle thereon. In February, 1872, one Odiorne, who then held the title of said Brown, made a quitclaim deed to the petitioners, covering the whole tract and including the land of the respondent. Under this deed the petitioners entered upon the premises, and, as stated in the bill of exceptions, “ expended large sums of money in surveying and lotting up the premises and building roads through the same in various directions, and in this manner were in possession of the same from 1872 up to the time of the filing of the petition.” The petitioners took by their deed, and can claim title to, only those parts of the larger tract which were held in severalty by Ephraim Brown. Their only possession, as stated above, is not inconsistent with, or exclusive of, the possession .and use of the premises by the respondent, for the purpose of pasturing cattle. There is now, as there has been for more than a hundred years, a mixed possession of persons owning in severalty but occupying in common. The statute provides that “ any person in possession of real property claiming an estate of freehold ” may bring his petition, if the respondent makes a claim adverse to the estate of the petitioner. Gen. Sts. c. 134, § 49. We think this contemplates an exclusive and adverse possession which works a disseisin of the respondent. Munroe v. Ward, 4 Allen, 150. The petitioners do not show any ouster of the respondent. There was no fencing or other occupation which would exclude him. The real difficulty in this case is the difficulty of ascertaining the boundaries of the lots of the parties. Neither party claims any land included in the deeds of the other. Neither party has seen fit to assert any exclusive possession of the land claimed by him. There is no reason why the respondent rather than the petitioners should be compelled to bring a suit, and thus assume the burden of being able to fix definitely the disputed boundaries. [562] We are of opinion therefore that upon the facts shown at the trial the petition should have been dismissed. • Exceptions sustained.