Jakeway v. Barrett

The opinion of the court was delivered by Boland, Ch. J. The construction placed by the court upon the original survey of the land, (which by a series of conveyances came to the plaintiff,) we think was erroneous. [323] The case of Fletcher v. Phelps, 28 Vt. 257, decided that lands bounded on Lake Champlain extend to the edge of the water at low water mark, and that the same rule applies to lands near the lake bounded on a creek emptying into it, and the waters of which ordinarily maintained the same level, and rise and fall of the lake. Applying the principle of that decision to the facts of this case, and following the line of low water from the point where the line first strikes the lake to the corner where the line ends on the banks of the creek or brook, includes within the survey the piece of marsh land on which the plaintiff cut the hay for which this suit was brought. The plaintiff and his predecessors in title, having been for many years in possession of the high land covered by the survey and deeds, he was by law invested with a constructive possession of all that his deeds covered. But it is perfectly well settled that an actual adverse possession continued for fifteen years, by one having even no color of title, will divest the true owner of his title, even when he is in possession of a portion of the land covered by his title, in such manner that he would have constructive possession of the residue, except for his actual disseizen by the adverse holder. The court found that Aaron Gibbs, under whom the defendant claims title, “ occupied this piece of marsh in such a manner and for such a length of time as to gain adverse possession of it as against the plaintiff.” The exceptions do not state the character and extent of this occupation by Gibbs, but we must assume that it was of such a character as to justify and sustain this finding and conclusion of' the court. If the plaintiff claimed it was not, he should have procured the facts to be specially stated on the exceptions, as the burden is on him to establish error in the judgment of the court below. The only question that seems to have been made as to this possession, was whether Gibbs not having any color of title to this marsh land, could gain a title by an adverse actual occupancy. Of this there is no doubt; the authorities are uniform upon that subject. The effect of having color of title is sometimes to extend by construction a possession beyond the actual occupation, and sometimes to change the character of casual acts of entry upon land from mere acts of trespass, to acts of possession. But so far as actual occupation extends, it is equally [324] effectual as an ouster of the owner, and a proper foundation of title by adverse possession, without color of title, as with. The court we think correctly held that the deeds from Orton to Church, and Church to Gibbs, did not extend over the creek or brook, so as to cover the marsh land on the south side. The plaintiff claims that if Aaron Gibbs occupied the marsh south of the creek or brook so as to gain a title by adverse possession, that it was not conveyed to the defendant by the deed from Gibbs’ administrator, as that deed refers to the deeds by which the land was conveyed to Gibbs for a description of the land conveyed. But the case shows that Gibbs claimed that his title under his deed extended to a line far enough south to cover the marsh land in question, and occupied claiming under his deed. The dispute was one of boundary merely, and in all such cases where one has occupied to a boundary beyond the true limits of his deed, and conveys according to his deed, his deed conveys to the purchaser according to the boundary he has claimed and occupied to. If this were not so it would practically put an end to the settlement of boundary lines by occupation, where the title had been changed into other hands by conveyances. This doctrine is specially applicable to cases like this, where the boundary given by the deed is somewhat equivocal, and where its true original construction is now stoutly contested. The defendant was properly held entitled to stand upon and hold to the boundary to which Gibbs had claimed and occupied» This view of the case renders it unnecessary to decide the question raised upon the defendant’s motion filed in this court, to dismiss the action, because the justice before whom it was brought had not jurisdiction of it, but as the question has been raised and argued, we have thought best to dispose of it, hoping to relieve the question of the doubt apparently resting upon it. Our statute gives justices jurisdiction of all actions of a civil nature where the debt or other matter in demand does not exceed two hundred dollars, with certain exceptions, among which, are actions “where the title to land is concerned.” This action was trespass de bonis, for taking and carrying away hay. There was nothing upon the face of the plaintiff’s declaration, or in the nature of his action, that gave any indication that any question would be involved con [325] cerning the title to land, any more than in an action of trespass for taking a horse. The pleadings of the defendant and the defence actually set up, did involve the title to land. Now how is this question of jurisdiction to be determined, and when? In Whitman v. Town of Pownal, 19 Vt. 223, the action was for damages caused by the insufficiency of a highway, and it was objected that a justice of the peace had no jurisdiction of such an action because the title to land was concerned. But the court decided that in actions of that nature the title to land was not so concerned as to oust the justice’s jurisdiction. The question was raised in that case by a motion to dismiss founded upon the facts set forth in the declaration, and before any pleading to the action. Davis, J., who pronounced the opinion of the court, says, that in that condition of the case “the question is to be determined, from a consideration of the nature of the action, as it appears from the declaration itself.” But farther on in the opinion he says : “ The language of the statute does not reach any particular form of action; it does not rest the exclusion of jurisdiction upon any abstract possibility of the occurrence of a question of title, but it is made to depend upon the fact, whether, without reference to the nature of the action, it is actually in controversy.” And again he says in the same case: “ It is left then to be determined by the pleadings subsequent to the declaration, whether it comes within the statute.” According to this rule the action should be dismissed, as the defendant’s pleadings and evidence distinctly put in issue the title to land. But it is to be noticed, that what is said by the judge was not necessary to the decision of the case. But in a subsequent ease of Haven v. Needham et al., 20 Vt. 183, Hall, J., says : “ It is obvious that the title of land may incidentally come in question in various forms of action, — as for instance, in assault and battery, where the defendant justifies the assault in defence of his freehold. I apprehend that in such a case the jurisdiction of the justice would not be arrested, but that he should proceed to hear and determine the title, so far as it affected the rights of the parties in the suit, in the same manner that the matter would be heard and determined in a superior court. But if from the nature [326] of the suit, as shown by the declaration, the title to land must directly and necessarily be concerned, the prohibition must have effect.” So in Shaw v. Gilfillan, 22 Vt. 565, the rule recognized on this subject is, that when the plaintiff under the plea of the general issue would be required to establish a title to land in order to recover, then the justice has no jurisdiction. Upon principle, and upon the decisions, we think the jurisdiction depends upon the nature of the action, and that wherever the declaration is of such a character, that under the general issue or any other plea, merely putting the plaintiff to the necessity of proving his declaration, he is bound to either prove, or disprove a title to land, then the justice has no jurisdiction to try the case. But when the declaration is such as not to require the proof of title to land, to sustain it, and such question only comes into the case by reason of some special line of defence, then the justice is not ousted of his jurisdiction to try the action. There is hardly any form of action in which the title or ownership of land may not incidentally arise, and it would be productive of infinite confusion and mischief to hold that in all actions whenever that is the case the jurisdiction ceases, and the parties are remitted to a new litigation in another forum. All our cases where it has been decided that a justice had not jurisdiction, can stand upon this ground. Hastings v. Webber, 2 Vt. 407, was an action for breach of covenant in a conveyance of land. Whitney v. Bowen, 11 Vt. 250, was a case for erecting a fence so near the plaintiff’s house as to obstruct his windows. Haven v. Needham, cited above, was for obstructing a stream of water and causing it to overflow the plaintiff’s land. Shaw v. Gilfillan, cited above, was an action brought to recover for the expense of building the defendant’s half of the division fence between his lands and those of the plaintiff. In each of these cases a denial of the plaintiff’s declaration would require him to prove title, or want of title, to land in order to recover. The motion must therefore be overruled. , The judgment is affirmed.