Moor v. Campbell

Gilchrist, J. We have held that prior possession under color or claim of title is sufficient to maintain a writ of entry against one who has no title. Gibson vs. Bailey, 9 N. H. Rep. 168. And where one enters upoxi land without any color of title, ho is considered in possession of no more land than he actually occupies. Riley vs. Jameson, 3 N. H. Rep. 23. In the present case, the plaintiff had a deed pf warranty from Emerson, who is not shown to have been in possession of the land. In the month of December, 1840, the plaintiff caused the land to be surveyed. His possession, then, under color of title did not commence until the year 1840. In the month of November, 1835, Samuel Head conveyed certain land to Samuel Stark, who soon afterwards entered upon the locus in quo, and cut wood from it, and about four or five years ago planted two thirds of it, and the defendant now has Stark’s interest. These are the facts upon which the defendant relies as evidence that his possession was prior to that of the plaintiff. But there is nothing in the case which shows of what the defendant was in possession. Samuel Stark entered upon the locus in quo. How extensive is the meaning of this ? In order to be of any benefit to the defendant, it must mean that he entered upon the place where the alleged trespass wasf committed. But we are not authorized to give so comprehensive a meaning to these words. They mean, not the identical place where the trespass was committed, but merely the premises described in the wx-it, and can bear no other construction. Now it does not appear from this case that, the premises had axxy certain axxd definite boundaries. All is indefinite. The part upon which Stark did xxot enter, and of which he had no possession, may have been the part where the trespass was committed, and to which the prior possession of the defendant will not apply. To make out his defence he should show that he had a prior possession of the exact places where the alleged trespass was committed. Anything short of that is no answer to the plaintiff’s case. Samuel Stark had no title, nor color of title, and must be considered in possession of no more land than he actually occupied. [212] As his possession did not extend beyond his actual occupation, and as it does not appear to have included the place of the supposed trespass, the plaintiff is entitled to Judgment on the verdict.