Bragg v. Laraway

The opinion of the court was delivered by ROWELL, J. The declaration describes the locus as being “ part of the northern fourth of lot No. 5 in said Water-ville, occupied by the plaintiff as a sugar-place.” Plaintiffs deed from John Codding and wife, dated March, 1874, purports to convey twenty acres, more or less, called the sugar-place, being a part of lot No. 5 in Waterville, bounded by the lands of certain persons named. Plaintiff claimed, and introduced evidence tending to show, that the northwest cor-nor of said lot is a certain hemlock tree; while the defendant claimed, and introduced evidence tending to show, that the true north line of said lot is about 33 rods south of the hemlock tree. It was admitted that between these two points there is a ledge extending easterly across-the land, with an opening in it,, and that in this opening a fence had been maintained for many years ; that plaintiff’s sugar-place came up to the foot of this ledge ; and that the fence on the east side of plaintiff’s land, mentioned in the deed of February 4, 1867, from John Codding to Joel Codding, ran east to this ledge and stopped. The only' line running east from the hemlock tree is a marked-tree line, made by the plaintiff — 681 — about two years before the time of trial. Plaintiff claimed that his deed gave him title up to this line, which he claimed to be the north line of No. 5 ; but if it did not, nor color of title, that he had acquired title up to that line by adverse possession. The defendant claimed that the plaintiff had neither title by deed, color of title, nor title by adverse possession, north of the ledge. The testimony on the part of the plaintiff tended to show that in the spring of 1876 he cut sugar-wood, dry spruces, and such other timber as he wanted, as high up as the hemlock tree; that he cut a portion of his sugar-wood there, above and below the ledge; that he sold some ash timber that stood above the ledge, which was cut the first fall he went there, and that he cut some logs on the disputed strip. Plaintiff offered no testimony that he had maintained any notorious or visible line as far north as the hemlock tree, and admitted that he had run no line of any kind east from that tree except the marked-tree line aforesaid. The defendant requested the court to charge that the acts of the plaintiff north of the ledge and the fence in the opening were not sufficient to give him title by adverse possession to any land north of the natural and visible boundary of ledge and fence. The court refused to charge as requested, but charged that if plaintiff had neither title by deed nor color of title north of the ledge, he could, nevertheless, acquire title north of it to the hemlock-tree line by adverse possession. It is now claimed that the court erred in refusing to charge as requested and in charging as it did, for that there was not such a visible, notorious, open boundary running easterly from the hemlock tree as would notify the world that the plaintiff was claiming to that line, wherever on the lot he cut. If the exceptions mean that the plaintiff offered no testimony to show a notorious, open, visible and distinct possession as far north as the hemlock-tree line, it was certainly — 682 — error to charge that he could acquire title up to that line by adverse possession ; for nothing is better settled than that those elements must characterize a possession in order to ripen it into title. But we do not understand the exceptions to mean that, but to mean that the plaintiff did not offer to show that he had ever made a line through there by building a fence, marking trees, setting monuments, or the like, until he made the marked-tree line about two years before the time of trial. The whole charge on this branch of the case goes upon the ground that there were other visible, notorious, and well defined evidences of adverse possession up to the marked-tree line ; for the court told the jury that the plaintiff must have had a foothold on the land continuously, and that his possession of it must have been actual, exclusive, hostile, open, notorious, and distinct up to that line. If the testimony tended to show all this, it was enough in that regard; and that it did so extend we must assume, as the exceptions do not show that it did not. Lot No. io adjoins No. 5 on the north, and is owned and occupied by the defendant. It is claimed that the plaintiff’s deed, which was on record, referred and restricted his possession to lot No. s, and that the court should have charged as requested, that the ledge and the fence in the opening were such a visible and notorious boundary that the owner -of No. 10 had a right to determine by inspection that the owner of the sugar-place was claiming no land north of that visible boundary. This claim is based on the contention made below that the ledge is the north line of No. 5, and is equivalent to claiming that there was no testimony tending to show adverse possession north of the ledge, which, as we have said, the exceptions do not show. But if counsel mean that the court should have charged that the owner of No. 10 had a right to determine by inspection whether the owner of the sugar-place was or was not claiming to own north of the ledge, assuming that his deed did not carry him north of it, — 683 — the court did, in effect, charge that, when it said that if plaintiff had neither title by deed nor color of title north of the ledge, he could, nevertheless, acquire title north of it to the hemlock-tree line by adverse possession, and that his possession must have been so open and. notorious as to notify the real owner that some one was on his land, occupying and making claim to it. There is, then, no error in this branch of the case; and that makes it quite unnecessary for us to consider whether the court erred or not in charging that plaintiff’s deed describes land running up to the north line of No. 5) and gives him title to that line, for the question of adverse possession was submitted to the jury in such a way that its decision could not have been at all influenced by that construction of the deed. As to liability for marking the line through plaintiffs sugar-place, defendant says de minimis. But this maxim is not of universal application, but is often limited and rendered inapplicable by other maxims, and especially by the maxim that there is-no wrong without a remedy, under which, when it is material to the establishment or the preservation of the -right itself that its invasion should not pass with impunity, an action lies, although no actual damage has been sustained. The test seems to be whether the act complained of would, if repeated, operate in derogation of the right. Hence trespass qua. clau. is maintainable for an entry upon the land of another, although there is no real damage, because repeated acts of the kind might be used as evidence of title, and thereby the right of the plaintiff might be injured. Broom’s Leg. Max. (*203); Taunton, J., in Marzeiti v. Williams, 1 B. & Ad. 415 ; Cole v. Drew, 44 Vt. 49; Fullam v. Stearns, 30 Vt. 443. So a commoner can maintain an action for injury to the common by taking away manure dropped thereon by the cattle, though his proportion of the damage be only a farthing, for py repeated acts of that kind a — 684 — mere wrong-doer might, in course of time, establish evidence of a right of common. Pindar v. Wadsworth, 2 East. 154. In Harrop v. Hirst, L. R. 4 Exch. 43, the inhabitant householders of a district were entitled by custom to a flow of water to a spout on a highway, and to the use of the water in their houses for domestic purposes. A riparian proprietor through whose land the water flowed on its way to the spout, on various occasion's, diverted the water so as sensibly and materially to diminish its flow, and various inhabitants of the district were thereby inconvenienced by failing to obtain watér at the spout when they wanted it. The plaintiffs, being occupiers of a house in the district, brought suit against such riparian proprietor for an infringement of their right, but the jury found that they had not personally sustained any actual inconvenience from the want of water. _ It was held, nevertheless, that the action was maintainable, inasmuch as the acts of the defendant, if continued, would be evidence of a right in derogation of the right of the plaintiffs as inhabitants of the district. The court charged that if the defendant, in doing what he did, admitted that the line was north of where he claimed it to be, if he entered upon the premises and committed the trespasses knowing that he was a trespasser, and did it in a wilful and malicious manner, exemplary damages could be awarded. This is claimed to be error, for that it charged a falsehood into the case, because the exceptions show that there was no evidence that the defendant ever admitted the line to be farther north than he claimed it. But the tenor of the whole charge on this subject is to the effect that the defendant must have known he was a trespasser in order to the awarding of exemplary damages; and this is all the more clearly so because there was no testimony tending to show admission in the ordinary sense of that term. The language of the court must be construed to some extent in the light ol the case as disclosed by the testimony, and the jury must be — 685 — presumed to have construed it somewhat in that light also., and we think there is no fair ground for saying that by that remark the jury was given license to conjecture touching a matter concerning which there was no proof, or was otherwise misled. That the declarations of the plaintiff’s grantor, made after he had parted with his interest, were not admissible, is too plain to warrant discussion or the citation of authorities. Judgment affirmed.