Spaulding v. Warren

The opinion of the court was delivered by Isham, J. The question, in relation to a variance between the description of the premises in the declaration and the proof, is avoided by the reference of this case, and the report of the referees thereon. On a reference, the suit is to be tried without strict regard to the pleadings in the case, or the issue formed upon the record. In the case of Eddy v. Sprague, 10 Vt. 218, it was held, that on a trial before referees, “ the declaration is important “ only to determine the extent of the submission, and that the refer- “ ence is of the whole case to be tried on its merits, and not of the “ particular issue joined in court.” When, therefore, the extent [321] of the submission and the subject matter in controversy are ascertained, the referees are to proceed to a hearing of the case on its merits, as if no formal declaration or pleadings had been filed,— And this mode of trial is not altered by the statement in the report, that the referees intended to decide according to law — for, it is only those questions of law affecting the merits of the case, and the effect of which is to dispose of the matter in controversy, that the court will reconsider, on the application for a judgment on the report. This is the doctrine of the case to which we have referred, and was again so held in Davis v. Campbell, 23 Vt. 238. To entitle the plaintiff to recover in this case, it must appear from the report, that he has a legal right to the premises for which the action is brought, and also the right of possession at the time of the commencement of the suit. This right or title may be proved, not only by deeds and regular conveyances, but a possessory right is sufficient against a wrong done, or one who has no better title; and when such possession has been continued for fifteen years, without interruption, the title has become perfected under the statute, and the party may maintain ejectment against any one who obtains and withholds from him the possession of the premises. We learn from the report, that the premises in controversy are the southerly half of a piece of land, the undivided half of which was’ conveyed to the plaintiff and one Isaac Spaulding, by Asa Wheeler, on the 17th of August, 1815 ; and that the interest of Isaac Spaulding was conveyed to the plaintiff in 1816, thus vesting the title in the premises in Asa Wheeler and the plaintiff, as tenants in common. The report also shows, that a division in part of these premises was made by Wheeler and this plaintiff, and that each have occupied in severality since the year 1816. This division is good as against the defendant; he being a stranger to their title, and not claiming under them, will not be permitted to dispute the same. Under this division, the plaintiff has been in the undisturbed possession of these premises from 1816 to 1845, claiming title to the same under his deeds. A small part of the land was cleared in 1816, and has ever since been occupied by him; and some 15 years ago, another portion of the same.premises was cleared, and has since been occupied for meadow and. pasture. The referees also state, in relation to the whole tract de [322] scribed in the deed, that the plaintiff has been in the undisturbed possession of these premises from 1816 to 1845, about 29 years, so far as he could possess it by occupying the cleared land, and nearly or quite every year making sugar therefrom, and cutting and carrying off wood from the premises. A portion of these premises, lying westerly of the Skinner line, and southerly of the defendant’s north line, consisting of wood and timber land, has never been cleared or fenced. While the principle is correct, that an entry upon uncultivated land, without color of title, and occasional acts of cutting timber, may not be sufficient to establish a title to the premises, when not enclosed, and no visible boundaries exist, (Doolittle v. Linsley, 2 Aik. 155,) yet it is well settled, that if one enters upon a tract of land, under a deed giving definite and certain boundaries to the premises, the-possession of any part will be considered as a possession of the whole, and as co-extensive with the claim of title; and such possession will preclude the occupant from the benefit of a disclaimer in an action of ejectment. Nor, for this purpose, is it essential that the deed under which he entered be recorded, for it has been held, “ that a deed “ defectively executed may be admitted as evidence of the partys’ “possession who entered under it.” Beach v. Sutton, 5 Vt. 213. It therefore becomes immaterial whether the land for which this suit is brought, lies wholly in Cavendish, or partly in Cavendish and Ludlow. The plaintiff’s entry, under his deed, gave him a possession co-extensive with its boundaries, and after the lapse of 15 years, perfected his title to the whole tract included in the deed. We learn from the report, that the defendant was the owner ■ of a tract of land in Ludlow, adjoining the plaintiff’s land, and which, by his deed, is bounded on the east by the line of Cavendish. If the defendant, and those under whom he claims, had at any time a title to these premises, the question still arises, has the defendant lost that title, and has it been acquired by the plaintiff? The defendant became the purchaser of his land in 1837, and under that title has claimed possession to the crooked line as marked on the plan, which was deemed the line of Cavendish, and which also is the same line to which the claim and possession of the plaintiff extended. This was the extent of the defendant’s claim and possession from 1837 to 1845, and during that period no claim of title or right of possession was made to any portion of the premises then [323] occupied by the plaintiff. This must, therefore, be regarded as a mutual acquiescence on the part of each, to that, as the true line of occupancy and possession between them. It appears from the case also, that there was a like acquiescence in this line, as the boundary of possession, by those under whom the defendant claims, and who were the former occupiers of the lot; for the referees state, that while the plaintiff was in the possession of the premises, under his deed, to that line, from 1816 to 1845, the owners of the adjoining lot claimed by the defendant, during -that whole period, made no claim of title to any part of the plaintiff’s possessions, or questioned his right thereto. It is difficult to conceive of a case where a title by possession under the statute can be created, if this long possession to a given line, and mutually recognized as such, will not bring this case within its provisions. It is, however, insisted by the defendant, that his title to the land demanded has not been lost by this possession of the plaintiff, as that possession was continued under a misapprehension of the true line between the towns of Cavendish and Ludlow; and that his claim to the premises was made immediately after running the Skinner line in 1845. As a general rule, “ an admission by a party, of a mistaken line for the true one, has no legal effect upon his titlebut a mutual recognition of a given line, by adjoining proprietors, accompanied by afttual possession of one or both for the period of 15 years, will be conclusive as to their respective rights. This doctrine was recognized in Crowell v. Bebee, 10 Vt. 35, and directly ruled in the' very elaborate case of French v. Pierce, 8 Conn. 440, in which it was observed, “ that where the “ owner of land bordering on the land of another, through a mere “ misapprehension of the place of the dividing line, occupied and “ possessed as his own, a portion of land beyond that line, for more “than 15 years, it was an adverse possession, sufficient to estab- “ lish a title in the possessor.” The possession of these premises by the plaintiff, under his deed, from 1816 to 1845, must be considered as having perfected his title under the statute; and the entry of the defendant in 1845, and dispossessing the plaintiff from a portion of the same, was an injury for which this action can be sustained. This view of the case renders it unnecesary to decide, which of these lines, as marked on the plan, is the true line between Caven» [324] dish and Ludlow. The crooked line, by acquiescence of the adjoining ^owners of land, has become the true line, so far as to settle the title and rights of such adjoining owners; but their acquiescence and recognition of a town line, can have no effect, in determining t}ie jurisdictional line of the'respective towns. The judgment of the County Court is affirmed.