Wishart v. McKnight

Knowlton, C. J. This is a writ of entry to recover a strip of land about ten feet wide, extending back from the line of the street between the dwelling houses of the parties. The case has previously been before us on exceptions which appear in 178 Mass. 356, where may be found with the statement of facts, a plan of the locus. The present exceptions are to the refusal to make certain rulings requested by the demandant, which relate to thesufficiency of the evidence to support a finding of the acquisition by the tenant of a title by disseisin. The tenant has not personally maintained the possession relied on so long as twenty years, but the evidence tended to show that he and his predecessors in title together held possession considerably more than twenty years. At the former hearing we decided that there might be such a transfer of possession of this property by the successive grantors and occupants of the adjacent premises with which this strip was used, as would make a continuity of possession, by which, at the expiration of twenty years, a valid title by disseisin and limitation would be acquired. The several requests for rulings that there could be no finding for the tenant, rest mainly upon two propositions, namely: first, an assumption that the occupation and use were originally permissive and that there was no evidence that until very lately they became adverse; and secondly, upon the contention that there was no such evidence of an immediate succession of proprietors and a transfer of possession as would create a continuity of adverse occupation within the meaning of the law. The situation was unusual. There was no door in the front wall of the tenant’s house, next the street; the house was erected very near the line of the lot on the westerly side, and the only [285] access to it was over this strip that ran down from the street on the easterly side, by a side door which was entered by two steps, and that also ran by the rear corner of the house to the back yard, in which was a small building. The steps at the side door were upon the demanded premises, which are separated from the demandant’s house lot by a fence running back from the street, erected prior to the year 1873. The evidence tended to show that in 1873 the tenant’s property, with the strip in question up to the fence, was occupied by a tenant of one who then owned the estates of both the demandant and the tenant, and that on July 6, 1874, the present tenant’s predecessor in title, took a deed of the estate now described in the tenant’s deed, which did not include the strip in question, and that the tenant and his predecessors in title have occupied and claimed under that deed ever since, and that the strip has been occupied and used all this time to the line of the fence, as if it belonged to the estate conveyed by the deed. So long as both estates were owned by the same person, and the present tenant’s estate with the adjoining strip was occupied by a tenant of the owner of the whole, it might fairly be inferred that the use of the strip was permissive and not adverse; but immediately upon the separation of the estates by a deed to the tenant’s predecessor in title, and upon an attornment to the new owner, the relations of the parties were changed, and possession and use of this strip in connection with the present tenant’s estate would no longer be imputed to the former tenancy from the demandant’s predecessor, but presumably would be adverse to the former landlord, the holder of the title. We think there was ample evidence to warrant a finding that the possession, if permissive originally, was adverse after the termination of the tenancy by the conveyance to the present tenant’s predecessor in title. To warrant a finding that there was a continuity of possession, we do not deem it necessary to show by express testimony that the new occupant was personally present upon the premises before the former occupant departed, and that there was a formal manual transfer of possession of this strip as a part by itself. There is a fair inference that a tenant, on his departure at the expiration of his term, surrenders the possession to his landlord, and that their possession is continuous, or rather, that the pos [286] session of the owner is continuous, although the two do not meet personally upon the premises at the end of the term. The possession of the tenant is the possession of the landlord. When we find a strip of land so situated in reference to an adjacent dwelling house and lot that the house cannot be entered or used without passing over the strip, and that the strip is fenced off from other lands as if belonging to the house, and is always used with it when the house is used, and is not occupied or used otherwise than with the house, and is always claimed by the occupant and the owner of the house as property belonging with it, it may fairly be inferred that the possession of the strip is given by the landlord to the tenant, and afterwards surrendered by the tenant to the landlord, and that upon a sale of the house and lot, possession of this land which is treated as belonging to the house, is transferred with the seisin and possession of the house. See Leonard v. Leonard, 7 Allen, 277; Ammidown v. Ball, 8 Allen, 293; Pettingill v. Porter, 8 Allen, 1; Sargent v. Ballard, 9 Pick. 251; Melvin v. Whiting, 13 Pick. 184; Allen v. Scott, 21 Pick. 25, 29 ; Jordan v. Riley, 178 Mass. 524; Percival v. Chase, 182 Mass. 371, 376; Beckman v. Davidson, 162 Mass. 347, 350. The maintenance of possession of the house and the strip by all the successive owners as if they belonged together, furnishes a presumption of fact that the seisin and possession of one part was transferred at the same time as the seisin and possession of the other part. After a recital of evidence excluded, it is said in the former opinion in this case that “ This evidence would have warranted the jury in finding that each of the grantees transferred to his successor his possession of the strip of land in question, and that thereby the demandant was continuously kept out of possession.” This evidence was introduced in convincing form at the last trial. The evidence indicates that the possession relied on was adverse and under a claim of right. Wheeler v. Laird, 147 Mass. 421. Bodfish v. Bodfish, 105 Mass. 317. Samuels v. Borrowscale, 104 Mass. 207. Holloran v. Holloran, 149 Mass. 298. We do not deem it necessary to consider the requests for rulings more particularly. There was no error in the refusal to grant them. Exceptions overruled.