Spear v. Ralph

The opinion of the court was delivered by Redeield, J. From the cases which have been decided in this state, in regard to what acts are necessary to constitute a possession of land, where the person in whose name and^n whose behalf they are done, has a claim of title to the land by deed, it is obvious that the case now under consideration was properly submitted to the jury. The latest case upon the point in discussion, Chilson v. Buttolph, 12 Vt. R. 231, recognizes the principle that any act done upon land by one having a deed of it, which will bear the construction of an act of ownership fairly, although equally an act of trespass in a mere stranger, shall be considered an act of ownership, and does constitute a possession, or an eviction of the true owner, who is seized merely by virtue of his title. This is but giving effect to the principle already decided in the cases of Doolittle v. Linsley, 2 Aik. 155, and of Sawyer v. Newland, 9 Vt. R. 383. It is plain, I apprehend, that the cutting a road across land is not necessarily an act of ownership, for it may be done with a view to accommodate the public travel, in that direction, or to enjoy other land beyond the lot in question, or it might be done of mere wantonness, and in either case it would be merely a trespass. But when a road is cut, leading to some particular portion of the lot, with the apparent and the avowed purpose of clearing land and getting timber, in connection with the paper title, it could hardly be considered less than an act of ownership and a possession. If done while the defendant’s grantors held the title, (whatever it is,) it would, if done by their consent, or under a contract to purchase the land, constitute a possession in them ; for, until the actual conveyance, the vendee of land stands in the relation of tenant, or quasi tenant, to the vendor. It is, no doubt, true that what constitutes possession is a [405] question of law ; but where there is any controversy as to the acts done, and with what actual or avowed intent they were done, it always becomes necessary to submit the whole case to the jury, giving them definite instructions upon all those points wherein the controversy arises. This was done in the present case. We do not perceive any just ground of objection to the rule laid down by the county court. Judgment affirmed.