Clark v. Dustin

The opinion of the court was delivered by Redfield, J. This action is trespass quare clausum. The respective grantors of the parties, some fifteen years previous to the [570] commencement of this suit, had a division fence dividing their respective possessions, to which each occupied, with the mutual understanding, as the jury have found, that it was not wholly on the true line, but that a survey should be had, the true line ascertained, and the fence placed on such line. . This action is brought to recover damages fo" cutting grass on land which, as it appeared by the survey, belonged to the plaintiff. The grass was cut while the arrangement subsisted, and before the true line was ascertained. It has been many times adjudged in this State that acts of possession under such arrangement, are not tortious, and cannot be made the ground of an action of trespass. If the plaintiff’s grantor had been tortiously ousted, so that trespass would lie for the disseisin, recovery could be had only for the first act, and not for the subsequent acts of continued possession by the disseissor. Cutting v. Cox, 19 Vt. 517 ; Stevens v. Hollister, 18 Vt. 294. Judgment affirmed.