Swift v. Gage

The opinion of the court was delivered by Redfield, Ch. J. It is probable that one proposition, laid down in the charge to the jury, is expressed in somewhat too broad terms, to be applicable to all cases coming within its terms. For it is now perfectly well settled, that a possession of a portion of á lot of land, claiming the whole, gives color of possession, which, in construction of law, is possession itself; and that to produce the effect, it is not requisite that the claim should be, by deed, recorded in the proper office, or that it should be, even by a deed, containing all the statute requisites to convey land. It is enough, that it be in writing, capable of being produced on request, or even that it be distinctly indicated upon the land by unequivocal monuments, which would not fail to attract the attention [229] of counter claimants. I have so often enumerated the authorities upon this subject, that it is scarcely needful for me to repeat them here. If this portion of the charge could have misled the jury, the defendants would doubtless be entitled to a new trial. But it seems to us, the case must be regarded as altogether clear for the plaintiff, upon the facts detailed in the case, and in regard to which, there seems no controversy. Adams and his tenants had been in uninterrupted possession of the portion of land, lying south of the stang, and that is all the land in controversy in the case, from 1824 when it was vacant, until the eviction, and no perfect title claimed to have been shown in the defendants. The defendants claim in one of two modes: 1. That Adams’ tenant surrendered the possession to those from whom the defendants derive title. But this a tenant has no power to do without the consent of his landlord, and there is no pretense of any such consent. / If any such thing were attempted it would still leave the possession in the plaintiff’s intestate, and he could maintain ejectment against any one going into possession under any such arrangement, at any time within fifteen years after it came to his knowledge. 2. It is claimed that the occasional acts of turning cattle into the lands, and cutting timber, which were at the time strenuously resisted by Adams and his tenants, who all along maintained the exclusive possession of the land, constituted such a joint possession of the land, as will defeat the effect of Adams’ prior possession. But it is obvious that such acts, under the state of facts existing, could only amount to trespasses, and did not give any possession in fact, or in law. We think, therefore, the judgment must be affirmed.