Booth v. Adams

The opinion of the court was delivered by Redfield, J. A division of common land among the proprietors, however informal, if acquiesced in -for fifteen years, has always been considered, in this state, equivalent to a le [160] gal division. But this must be a division in fact of the land, either by visible lines and monuments, or by possession under a claim of distinct and clearly defined parcels. No length of time of acquiescence, in an agreement to hold in a certain manner, has yet been holden binding upon the proprietors, unless there had, in fact, been a division of the land. Hence, the severance to all the rights in the town of Addison, which was, in fact, made at the early date, named in 'the bill of exceptions, has been so long acquiesced in that it is now binding upon all concerned. But the severance, which the plaintiff undertook to make to the right of Isaac Spencer, not being made in the manner required by law, and of so recent a date, can have no effect. If the plaintiff recover, it must be by virtue of his possession and right, as tenant in common with the defendant. There does not seem to have been any agreement, on the part of the other tenants, to permit the plaintiff to occupy the premises in controversy. If there had been, he might maintain trespass against them for the same acts, which would constitute trespass in a stranger. Keay v. Goodwin, 16 Mass. R. 1. But one tenant in common of land cannot maintain trespass against his co-tenant, unless he is expelled from the common estate or deprived of the common enjoyment. When ejectment has been brought and sustained, trespass will lie for mesne profits. 3 Wils.R. 118. But for a mere entry upon the land, without an ouster, trespass will not lie. Co.Litt.323. 1 Salk. 4. Coke Litt. 189. In short, any act of the co-tenant,which might be referred to his right, as gathering in crops, cutting trees fit to cut, or removing fences, as in the present case, is not the ground of such action, even on the part of him who sowed the crop or erected the fence. Perhaps the actual destruction of permanent erections might merit a different consideration. Martin v. Knowllys, 8 Term. R. 145. Waterman v. Soper, 1 Ld. Raymond’s R. 737. If one tenant in common of lands hinder the other from entering to erect hurdles, it is said the other may bring trespass. Coke Litt. 200. There being nothing in this case amounting to an expulsion or hindering of plaintiff in his possess ion, Judgment is affirmed.