Owen v. Foster

The opinion of the court was delivered by Bennett, J. The case finds that it was the intention of the committee, who had been agreed upon to make the partition between the daughters of Amos Root, to set out to the wife of the plaintiff all the lands on the south side of the road, being a part of what is called the Blair lot. From the north line of the lot to the south line was 176 rods ; but the committee, by their survey, run but 160 rods, and give no boundaries, neither do they run to any given line. They supposed, no doubt, that 160 rods would carry them to the south line of the lot. Though the case finds that the plaintiffs, after the severance by the committee, in 1819, went into the exclusive possession of what was set off on the south [267] side of the road, yet it negates any actual possession south of the 160 rods. There is no reason in supposing that the lands, where the trespass complained of is shown to have been committed, were, in point of fact, included in the survey of the committee, in the part set to Abigail Owen. When courses and distances, as in this case, are alone gi-given in a survey, the needle must govern the one, and the chain the other; and the intention of those who make the survey cannot be let in to vary the result. That part of the lot south of the 160 rods, then, not having been included, in point of fact, in the division, the only question of which the case is susceptible, is, have the plaintiffs acquired for the wife an exclusive title in severalty to the lands south of the survey of the committee, by means of fifteen years adverse possession ? It is true, that one tenant in common may acquire a title against his co-tenant, by possession. But this supposes there has been an ouster. Otherwise, the possession of one is, in judgment of law, the possession of both. The plaintiffs, it is found in the case, had no actual possession of the lands south of what the survey covers, and they cannot have a constructive possession. Though the division, as made by the committee, in pursuance of their survey, has no binding effect, in and of itself, yet, if we treat it as a practical division, and admit, as the case seems to find, that the plaintiffs went into possession in sev-eralty under this division, they cannot, by construction, extend their possession beyond it. So far as a constructive possession is concerned, it must be marked and limited with the survey in the division ; and whether this division had been made a matter of record or not, would be of no consequence as between the immediate parties to it. The result must be, then, that the wives of the plaintiff and defendant are still possessed of the lands south of the survey of the committee, as undivided land, and this action cannot be maintained. The judgment of the county court is affirmed.