Morse v. Churchill

The opinion of the court was delivered by Peok, J. As the referee finds that the tree, the cutting of which constitutes the substantial trespass complained of, stood upon the plaintiffs’ side of the true original division line between the parties, and that it stood on the plaintiffs’ land, unless the defendant had gained title to the strip in question by possession, [652] the question is presented, whether, upon the facts found by the referee, the defendant had so gained title. The occupancy of the strip in question by the defendant and his grantors, between the true division line and the zig-zag slash fence, on which the tree in question stood, gives the defendant title if that possession was adverse, that is, under a claim of title. The referee does not find that that possession was under a claim of right or title, or that it was adverse; but reports certain facts bearing upon that, characteristic of the possession, and leaves it to the court to decide whether the defendant gained title by such possession. It appears that when Gilbert Noyes owned the land now owned by the plaintiffs, and Stanley owned the land now owned by the defendant, the straight line 130 rods, marked on the plan and found by the referee to be the true line, was a line well marked with well established permanent boundaries and corners, well known to and recognized by Noyes and Stanley while they owned their respective parcels. In addition to this, on the eastern portion of this division line they had a rail fence on this straight line, extending westerly sixty or seventy rods, built previous to 1828, and which still remains there. When Noyes and Stanley, in 1828, the then adjoining proprietors, built the slash fence, commencing at the west end of the rail fence and extending on westerly up the hill over the rocks and ledges, running it zigzag for convenience wherever they could build it the cheapest and easiest, knowing that it did not follow the line, no adverse occupancy was thereby commenced beyond the line which was then mutually recognized as the true division line. Nor would any such possession commence, which would be available to the defendant to gain title to the land up to the slash fence, until the defendant or his grantors claimed to that fence. The referee does not find that the possession relied on by the defendant was under any such claim. It is true that, as a general rule, when one is shown to have been in possession for fifteen years, apparently as owner, and such possession is not explained or otherwise accounted for, it will be presumed to have been adverse. But this presumption may be rebutted by proof that the possession in its origin was not-adverse, but permissive; and sometimes the [653] condition of the property ' and the circumstances accompanying the occupancy itself will rebut the presumption that it was adverse or under a claim of right. In this case, both concur to rebut this presumption. The most favorable view for the defendant that can reasonably be taken of the case is, to inquire whether the occupancy by the defendant and those under whom he claims, can be inferred, from the facts reported, to have been under a claim of title to the strip of land between the true line and the slash fence of the place in question. So far as the occupancy of Stanley is, concerned, who assisted in building the slash fence under the circumstances reported, clearly no such inference could be drawn. The grantees of Stanley, and subsequent occupants, may not have been informed of the understanding under which that slash fence was built, but there was much in the appearances to indicate that the zig-zag slash fence was not the true line in all places, or recognized and claimed by the adjoining proprietors to be such. For a distance of sixty or seventy rods the rail fence on the true straight line would indicate that the adjoining proprietors claimed only to that line through the whole distance of their adjoining lands if there was nothing to show the contrary. This slash fence indicated the general course of the line there to be the same as at the rail fence. The fact that the slash fence was irregular in its course and diverged from the straight line as convenience required over the rough ground, apparently in order to have the rocks and ledges aid in making the fence, would not necessarily indicate that the line, to which the adjoining proprietors claimed, was thus crooked. The whole appearance would rather indicate to a common observer that the adjoining proprietors were claiming to the straight line indicated by the rail fence, and that the slash fence diverged in places from that line for temporary convenience only, and not on account of the line being in exact accordance with the slash fence. If a common observer, on viewing the premises and noticing the manner of occupancy, would so infer, then, upon the facts reported, the referee or a jury might infer that the occupancy between the straight true line and the slash fence was not under claim of title. And clearly, as the referee has not found that such possession was adverse or [654] under a claim of right or title, the court can not infer it from the-facts reported. The tree, therefore, was cut by the defendant on the plaintiffs’ land. It is further insisted that, as the defendant was in possession of the locus in quo at the time of the alleged trespass, the action of trespass is not the proper remedy. Whether the character of the defendant’s possession was such as to defeat the action of trespass for entering and cutting the tree, had the question been seasonably raised, we need not decide, for it does not appear that any objection was made before the referee to the form of action. This objection not having been made before the referee, it can not avail the defendant here. Judgment affirmed.