Paine & Slocum v. Hutchins

The opinion of the court was delivered by Wheeler, J. The plaintiffs showed no legal title and right to the locus in quo, but did show color of title. -Their right to maintain the action must depend, therefore, upon possession. The acts claimed to be trespasses were committed on lots Nos. 5 and 6, and the question is, whether the plaintiffs had such possession of those lots as is necessary. The plaintiffs’ evidence tended to show that they had surveyed some of the outside lines of these lots in surveying the outside lines of the gore, and perhaps .some other lines of them in running out lots, and that they had paid taxes on them ; but did not show that they had done anything further upon these lots. These were not acts of possession, but were merely evidence of a claim of right. Webb v. Richardson, 42 Vt. 465 ; Kidder v. Kennedy, 43 Vt. 717 ; Oatman v. Fowler, 43 Vt. 462. The claim of a right to land is an important element in making out possession, but is not enough of itself to make out possession at all. It is essential to give character to acts that would otherwise be mere trespasses, and show them to be acts of ownership. The evidence of any possessory acts done to either of these lots, or to any others in their immediate vicinity, is wholly wanting, therefore resort must be had to evidence of possession from other sources. The claim of right shown covers the whole gore; and there can be no fair. question but chat the plaintiffs’ evidence in respect to having a mill built, and in letting and selling farms on the gore, and having them occupied, showed, almost at least, unequivocal acts of ownership. And if the plaintiffs’ title to the whole gore under which they were claiming when these acts were done, would extend the acts by construction to the whole, according to the ordinary rule in cases of acts done on parcels of land under [318] color of title to the whole parcels, then the plaintiffs’ evidence did tend to show possession of- the whole gore, including these lots that include the place of the alleged trespass. So that the question on this part of the case really is, whether the color of title did extend the effect of these acts to the whole gore. The gore itself is one of the municipal divisions of the state, although not organized as a municipality; and the land in it was at the time in question subject to ownership by various persons, and occupied by them by.different kinds of possession. It contained as much territory as many, and more than some, of the towns in the state, and was divided into lots the same as towns are. An owner of a parcel of land in it, would have no greater reason to suppose that a person acquiring mere color of title to the whole of it, and taking-possession of a tract remote from his, was claiming his, than the owner of a part of a whole township would under the same circumstances. It is well settled that constructive possession of the vacant parts of a whole township, cannot be acquired in that way. Chandler v. Spear, 22 Vt. 388. And it now appears that such possession of unoccupied lots on a division should not be so acquired. Jackson v. Woodruff, 1 Cow. 276; Jackson v. Richards, 6 Cow. 617 ; Sharp v. Brandow, 15 Wend. 577. The ruling of the court, made somewhat pro forma as is understood, that the undisputed-evidence of the acts detailed gave the plaintiffs constructive possession of the-land where the alleged trespass was committed, is, therefore, erroneous. The exception to the manner in which the court answered the questions of the jury and gave further instructions when the jury came into court, and made inquiries, is not well founded. It is objected that the court did more than to answer the inquiries. But that was the right of the court; and if it appeared that more than categorical answers was necessary, to keep the issues to be decided correctly before the minds of the jury, it would be the duty of the court to give such further instructions as would be necessary to that end. In this case the instructions beyond the answers w.ere very proper. The evidence on the part of the plaintiffs tended to show that the defendant procured workmen to cut hoop-poles at the very place they were cut. That of the [319] defendant, that he did not procure them to be cut there, nor on the land plaintiffs claim, at all. The question to be settled by the jury was, whether the defendant did so procure the cutting to be done ; and the instructions brought the jury directly to the consideration of that question. Judgment reversed, and cause remanded.