Betts v. Davenport

Hosmer, Ch. J. The defendant in this case claimed title under one Thomas Carr, who constructed the dam ; and evidence was offered by him, to show, that ⅛ had been maintained uninterruptedly and adversely, for more than fifteen years, before the commencement of the plaintiff’s action. The plaintiff, who claimed under Burwell Betts, to disprove the adverse possession, offered in evidence a written agreement by Carr, when in possession of the premises as mortgagor. This testimony was admitted ; and the legality of the admission, is the sole question to be decided. The adverse occupancy by the defendant, and those under I whom he claimed, of the mill-dam, for more than fifteen years, would be a presumptive bar, in analogy to the statute of limitations. 2 Wms. Saund. 175. n. But if the continuity of the adverse possession was broken, so as to leave an uninterrupted possession of less than fifteen years, the claim of the defendant would be unsupported. To the competency of the evidence offered by the plaintiff, there exists no well founded; objection. As the rights of Carr, and of those claiming under him, were supposed to result from an adverse occupancy, the : declarations of the mortgagor, in actual possession, that he * did not hold adversely to the plaintiff’s title, are admissible evidence. Co. Litt. 374. a. Smith v. Burtis, 9 Johns. Rep. 182. Jackson v. Vredenbergh, 1 Johns. Rep. 159. Barkhamsted v. Farmington, 2 Conn. Rep. 600. The quo animo is indispen-sible to give a character to the possession, and to evince whether it was adverse, or consistent with the plaintiff’s title. Then, as to its effect: Carr, when possessing the premises, agreed with Burwell Betts, under whom the plaintiff claims, that he would lower the dam, or take it down, so as not to injure the plaintiff’s mill, or that he would pay him certain stipulated damages. As an agreement, it could not, against the defendant, be of any efficacy; but as a declaration that Carr did not possess adversely, it is good testimony. It is equivalent to the most explicit affirmation, that he did not occupy the dam under a claim of right, or in opposition to the plaintiff’s title. The other Judges were of the same opinion, except Braín-ard, J., who was absent.- New trial not to be granted.