Brown v. Edson

The opinion of the court was delivered by Kellogg, J. Two questions are raised by the bill of exceptions; but only one was much relied upon in the argument, and that relates to the instructions given to the jury by the court below; and it is the only question necessary to be considered in disposing of the case. The plaintiff, at the trial, attempted to deduce a title to the land in question from John Grimes, who was shown to have been an original proprietor of the town of Plymouth. He, however, failed to establish such title, and was driven to the necessity of relying upon a possessory title. The case shows, that as early as 1787 Luke Rice caused a survey to be made of the lot in question, and that in 1790 he went into the possession of a portion of the land described in his survey bill, and that he and those claiming under him, including the plaintiff, have ever since possessed the same. No part, however, of the piece of land in controversy was ever in the actual possession of any one, until since 1840. It farther appears, that as early as 1793 Rice claimed to a line, as the southerly line of the land described in his survey bill, which did not include any part of the land in question, and that Rice never claimed any part of the [362] land in controversy ; and that those claiming under Rice had at all times recognized that line, as the southern boundary of the land described in the survey bill, until since 1840; and that between the years 1793 and 1796 an allotment of the town was made, by which it appears, that the land in controversy was included in what is commonly called the Minister’s Right. Upon these facts the plaintiff claimed, and the county court, in their charge, evidently proceeded upon the supposition, that Rice, by his entry upon the land under his survey, acquired a constructive possession of all the land included in the survey, and that, by the continuance of that possession, he acquired a title to the land in controversy; for the plaintiff did not claim to have shown any title to this portion of the land, but a title resulting from a possession by construction. It has been repeatedly held by this court, that if a person enters upon a tract of land under a deed, or pitch, giving a definite and certain extent to such land, his possession of any part will be construed as a possession of the whole, and as co-extensive with the claim of title. Hall v. Fuller, 7 Vt. 100. Beach v. Sutton, 5 Vt. 209. Crowell v. Bebee, 10 Vt. 33. But we know of no instance, in which a possession by construction has been held to extend beyond the claim of title. We readily grant, that an entry under a survey, like the one in the present case, and the occupation of a part of the land, if there be no evidence to limit and restrict the possession, will be regarded as extending the possession constructively, over the entire tract included in the survey. But we think, this constructive possession may be restricted by the acts and declarations of the occupant, showing that he does not make his claim of title co-extensive with the survey. The fact, that Rice, when he entered upon the land and during his occupancy, never claimed any part of the land in controversy, that he pointed out a line, as the southern boundary of his survey, which did not include the land in dispute, that he ever after claimed that line, as his southern boundary, that the plaintiff, and all those under whom he claims, recognized this line as the southern boundary of the survey until 1844, in the judgment of the court limits the constructive possession to the line thus designated. The county court seem to have attached no importance to these [363] facts, but to have considered, that inasmuch as the land in controversy had, during all the time, been in a wild state, and no one in the actual possession of it, the plaintiff had the right to extend his land south, as far as the south line of his original survey, until some one had been in the possession of the land in dispute for the term of fifteen years. This, we think, is manifestly erroneous. As the plaintiff had neither a paper title, nor a title by possession to the land in dispute, we do not see what right he had to extend his line, so as to embrace land in the possession of others, although that possession had not been continued for fifteen years. The judgment of the county court is therefore reversed.