Moore v. Hodgdon

Gilchrist, J. The plaintiff having, on the morning of the 15th of May, 1845, entered upon the locus in quo under a deed, must be adjudged from that moment to have been in possession of it, and entitled to maintain this action, unless the defendant can show an earlier possession; for it does not appear that either has any title. Long before that time the defendant had been accustomed to use the land, which was very near his shop, for purposes connected with his trade; but there was nothing in his use of it that excluded others from using it also, or indicated, on his part, an intention of excluding them. His use of it was not constant, but only by occasionally going upon it to do certain work that could more conveniently be done there than elsewhere, and was such as might well have been regarded as a liberty taken with another’s possession. In the use, moreover, which he thus, upon occasions, made of the land, he did not restrict himself to visible and distinct bounds, nor w’as there any declaration, or other act of his, that denoted a claim of exclusive occupancy, up to any determinate limit. Acts of this nature do not, ordinarily, amount to possession. They are equivocal, and may be repeated for a long series of years, without establishing any such thing. [148] Bailey v. Carleton, 12 N. H. Rep. 9; Hale v. Glidden, 10 N. H. Rep. 297; Straw v. Jones, 9 N. H. Rep. 400. But something more than these desultory acts, and beyond this occasional and transient use and occupation of an indefinite space around the door of the defendant’s shop, appears in the case, and the question is, whether there is enough to authorize the jury, in point of law, to find the defendant to have been in possession anterior to the 15th day of May. It appears that two or three weeks before that time he caused to be carried and placed there a quantity of stones, and a wall to be constructed along the bank of the river, for a foundation to the building, which on the 15th of May he caused to be brought and placed there. Now this is, without question, an act of possession. Its decisive character, when contrasted with the occasional going upon the land to heat the irons, or even to deposit fuel for a transient period, cannot fail to impress the mind that a possession was actually taken, and to awaken an inquiry, after the proper tokens, to denote the extent to which it reached. But the most essential and significant feature, perhaps, is, that it furnished a limit, on one side at least, beyond which the possession did not extend, and partly inclosed a space lying in the direction in which the proposed building was to lie, over which the defendant asserted possession in an absolute sense. How much more, and whether any more was embraced in this claim, was a question of fact, to be decided upon a review of the situation of the land, and other circumstances, indicating the intentions of the party. A jury might well infer that the defendant intended to include, in his claim of possession, all the space between the wall and the shop, from the impracticability of using the shop and the new building without the whole of the intervening ground; or, from the fact that, although the space was [149] not actually hemmed in by the wall and the shop, those objects sufficiently described and limited the extent of the possession, to common apprehension. In the language of the instructions of the court, there was evidence to show that the defendant claimed a right to the spot where he afterwards placed his building; and if the jury believed, from the evidence in relation to the prior use of the land, by building fires and placing carriages near that place, and between that and the shop, and from his causing the stones to be drawn, and the wall to be erected, that he intended, when the wall was built, to assert a title to the land between the shop and the easterly end of the wall, they might find from the evidence an entry, with claim of title, which would give him a -possession prior to that of the plaintiff, not only to the land where the wall was built, but to all between the building and the shop. An entry into land is one of that large class of acts in which the intention with which they are performed is the material element that gives them their legal force and character. The pursuit of game, the occasional cutting of trees, or gathering of herbage or wild fruits, and the like, furnish no presumption that the entry is made for the purpose of taking possession; in the first place, because they are not exclusive in their character, and may well consist with like enjoyment of the land by others; and in the second place, because there is nothing in such proceedings that indicates the limits of the country embraced in the occupation. But it is otherwise where one enters under a deed, which defines his claim, or where one, by a fence, attempts to exclude others, or where, by the particular use which he makes of the land, he indicates with precision the extent to which he proposes to enjoy it, to the exclusion of others. The surrounding of the land, by a wall or fence, which is the common symbol by which actual occupation [150] is distinguished from the constructive possession which results from an entry under color of title, owes its efficacy to the indication it affords of the exact purpose' of the party who makes the entry. It denotes a purpose of exclusive occupancy, and at the same time shows precisely what he intends to embrace in such occupancy. It is not because such fence actually excluded aggression, but because it indicates a purpose to do so, that the actual occupancy is held to extend to the limits which the fence marks. The conclusion, therefore, is, that any thing other than a fence, that shall answer the same purpose of defining the possession, and of indicating an intention the part of the occupant; to exclude others from participating in the occupancy, may have the same effect in law. of establishing the fact of possession in distinction from the state of occasional intrusion and partial and qualified use. Smith v. Hosmer, 7 N. H. Rep. 436; Hale v. Glidden, 10 N. H. Rep. 397. We think, therefore, that the evidence was such as might well have justified the jury in finding the defendant’s possession prior to the 15th of May, because it showed a purpose, on his part, of permanent occupancy of a part, and tended to show a purpose of embracing all the intervening space in his claim, and exclusive occupancy. The instructions were, therefore, correct, and there must be Judgment on the verdict.