Barker v. Kennard

Pierce, J. This is an appeal from the Land Court for a jury trial with two issues framed as follows: "1. Has the respondent acquired title by adverse possession of any portion of the land claimed by the petitioner in this case, and, if so, to what portion? 2. Has the respondent acquired by prescription, the right to maintain dams or dikes on the land claimed by the petitioner in this case, and, if so, where?” The jury returned an answer to the first issue as follows: “The jury answers Yes, to that portion of the land contained inside of the red line marked upon the plan, Exhibit Ho. 3.” The judge instructed the jury that if they answered the first question in the affirmative, they need not answer- the second issue, and in accordance with the instructions they made no answer to the second issue. The bill of exceptions states: “The court gave full and complete instructions to the jury as to adverse possession and title by prescription, to which no exception was taken.” It is in evidence that the respondent on July 6, 1880, acquired title to the tract in dispute; that four days later he conveyed the premises to the petitioner’s predecessors, Heald and Jones; that at the time of his purchase the respondent was and still is the owner of adjoining land on the south and west including some large cranberry bogs down the river; that for some years previous to 1884 the respondent had maintained a dam farther down the river -which was used for -holding back the water on the land now in question for the benefit of his own bog and certain other bogs belonging to Heald and Jones. A dispute arose between the respondent and Heald and Jones in regard to the sharing of expenses of the maintenance of that dam, and about 1884 Heald and Jones began to build a dam on their own side of the westerly line of -the land conveyed to them in 1880 by the respondent, where the dam claimed by the respondent now stands. The respondent disputed their right to construct this dam, claiming and believing [589] that he was the owner of the land in dispute. Heald and Jones yielded to Ms claim and thereupon secured another water supply-.. In 1884 the respondent, under a claim of right and believing he was the owner of the property in dispute, entered on the land and .converted it into an artificial reservoir or basin. In the construction thereof he erected, entirely around said reservoir and upon the land claimed by the petitioner, dams or dikes; he built into the dams or dikes several sluiceways and flumes, provided several sets of flashboards, dug trenches in said reservoir, cleared and prepared the land and maintained it by cutting' trees, bushes and grass upon the entire area of the reservoir and the area occupied by the dams and dikes “openly, notoriously, adversely, continuously, exclusively and under a claim of right,” for more than twenty years before to the date of the filing of the petition in this case. The first request “That, upon all the evidence, the respondent did not acquire title by adverse possession, to any portion of the land claimed by the petitioner,” was denied rightly. All the evidence is not set out in the record, nor is it stated that the bill of exceptions contains all the material evidence. Nevertheless, it discloses evidence of facts abundantly sufficient to warrant the jury in finding that the respondent openly and continuously denied the title of the petitioner’s predecessors to the land m dispute; that the respondent claimed the disputed land was Ms land, that he entered on the land claiming to be the owner of it and with an intent to claim it against the true owner; that the predecessors in title of the petitioner ceased to occupy the land because of the respondent’s claim of title; that the respondent was possessed of it in fact, and Ms occupation was open, notorious, exclusive and continuous for a period of more than twenty years prior to the filing of the petition of the petitioner for registration. These acts, if found by the jury, clearly amount to a disseisin and adverse holding against the true owner. Boston Mill Corp. v. Bulfinch, 6 Mass. 229. Melvin v. Proprietors of Locks & Canals, 5 Met. 15. Tufts v. Charlestown, 117 Mass. 401. In addition, the jury were warranted by the evidence in finding that the respondent evinced an intention to hold the land against the true owner by acts of ownership, such as the building of dams, [590] dikes, trenches, sluiceways, and the cutting of trees, bushes and grass upon the entire area of the disputed land. The finding of the jury, that the respondent had acquired title to the disputed land by disseisin and adverse possession continued under claim of right for more than twenty years, renders it unnecessary to discuss whether the respondent could as a-matter of law acquire by prescription an incorporeal right to maintain dams and dikes upon the land owned by the petitioner, or could acquire a right to use the land as a reservoir which should be appendant or appurtenant to adjoining land of the respondent. Leonard v. White, 7 Mass. 6. Harris v. Elliott, 10 Pet. 25. Donnell v. Humphreys, 1 Mont. 518, 528. The remaining requests deal in various forms with rights acquired by an owner of a cranberry bog who uses the waters for purposes incident to flowing his land. R. L. c. 196, § 39. (It is plain that the question to be submitted to the jury in any aspect of the evidence, was not the right of flowage under the mill act, but was the question of title to the land or, in case the jury found the respondent had no title, of an incorporeal right to the use of the disputed land for the purposes to which it was put. See Craig v. Lewis, 110 Mass. 377, 379; Williams v. Nelson, 23 Pick. 141; Murdock v. Stickney, 8 Cush. 113, 116; Storm v. Manchaug Co. 13 Allen, 10. The mill act conferred no privilege of flowage on the respondent because the placing of the dam was in violation of Pub. Sts. c. 190, § 2, R. L. c. 196, § 2, which reads "... nor shall a mill or dam be placed on the land of any person without such grant, conveyance or authority from the owner as would be necessary ” to convey land. The dam was not placed on land of the respondent, and there is no contention or evidence that the owner of the land by grant or conveyance ever gave authority to any person to place it on the disputed land. The remaining exception relates to the testimony of the respondent, in substance that the waters of the reservoir were essential to the productive value of the cranberry bog below. The evidence manifestly was understood by judge and attorneys to be offered in support of the contention that the right to maintain the reservoir as a source of water supply to the cranberry bog below was an easement, which could be acquired by prescription and become appurtenant to the cranberry bog. This issue became immaterial [591] and was lost in the finding that the respondent had acquired title by adverse possession to the land. It follows that the error, if any, was cured by the verdict. Cohasset v. Moors, 204 Mass. 173, 180. Exceptions overruled.