| Or. | Apr 30, 1891
— The parcel of land in controversy in this suit consists of about one acre. It was conceded upon the argument here, and the evidence very satisfactorily establishes the fact, that the tract is included within the calls of the plaintiff’s deeds, and that he is entitled to the same unless his right thereto is defeated by one or both of the defenses pleaded in the defendant’s answer. It is to the answer, then, and the facts shown in support thereof, that our attention must be directed.
The first question demanding our attention is the judgment pleaded in the answer as an estoppel. In the first place, the defendant has failed to put in evidence the judgment roll in the case of Nannie L. Owens v. Sol. Abraham et al., mentioned in the pleadings. It is true several papers, separately certified, each of which would have constituted a part of the judgment roll, as defined by section 272, Hill’s Code, if any such document exists in the cause, accompany the transcript. But these papers, if competent in the disjointed and disconnected form in which they appear, are not so certified as to entitle them to be read in evidence. The certificate to each paper recites that the copy has been compared by the certifying officer with the original on file in his office, and that it is a true and complete transcript therefrom. The statute requires the certificate to show; among other things that the copy is a correct transcript therefrom and of the whole of such original. I advert to this condition of the record not for the purpose of placing
Does the record, then, preclude all inquiry into the state of the title between these parties? That is the question to be determined. All that part of it relating to the agreement between Abraham and Owens in relation to the Byars survey, and that the line ascertained by him should be forever observed by the parties as the true boundary line between them, must be left out of this inquiry, for the reason that those allegations could not, in a court of law, affect the title no difference which way the fact might be found. If such an agreement, followed by performance, could have any effect, it could, at most, only create an equity, over which a court of law had no jurisdiction in this state at the time of this litigation. It must be further observed that Abraham by his answer in that action alleged that after the Byars survey he employed his co-defendants to remove, and they did remove, the division fence off his land on the true division line aforesaid, doing no unneccessary damage as they could and might lawfully do, which are the acts mentioned and complained of in the complaint. This allegation is not denied by the reply. Therefore, upon the face of this record it stood confessed that Abraham moved the. division fence off his land upon the line, and that he did no unnecessary damage. This allegation, properly construed, means that he placed said division fence partially on the lands of Mrs. Owens, and that in doing so he did her some damage, but that the same was necessary. The defendant in that case had no right to place any part of his fence on the lands of Mrs. Owens without her consent, and if he did so he was liable to her in damages without any regard whatever to the title to the strip of land now in dispute. In such case
But passing this question we approach the main point upon which the appellant relied in the appeal, and that is, that the plaintiff in this suit is estopped by the record under consideration. In an action to recover damages for a trespass upon lands, and the plea is liberum tenementum, the party seeking to avail himself of the estoppel must carry his proof further than simply to introduce the record and rest. As was said in Dunckel v. Wiles, 11 N.Y. 420" court="NY" date_filed="1854-09-05" href="https://app.midpage.ai/document/dunckel-v--wiles-3606381?utm_source=webapp" opinion_id="3606381">11 N. Y. 420, per W. F. Allen, J.: “ The law says that plaintiff in trespass quare clausum fregit can recover upon showing title to any part of the close described in the declaration, if the act complained of was done on that part; and the allegation of title is divisible, and the substance of the issue, no matter how comprehensive the claim may be, is as to the title to the precise spot in which the trespass was committed. It follows, then, that the title to the whole close was not actually or presumptively in issue. No legal presumption can exist that the finding of the jury was beyond or more comprehensive than the issue, and certainly no presumption should be indulged in favor of an estoppel which is designed to conclude a party by excluding evidence of the truth. It was for the defendant to show by evidence in what part of the close the trespass was committed, and thus apply the issue and judgment to the premises now in controversy.” And the learned judge adds: “If, as I think is clear on principle and authority, the judgment is only evidence that the title to some part of the premises in dispute in the trespass suit is in the defendant, it was for him to locate that part by proof and show that it embraced the premises in dispute in this action.” If this reasoning is sound, and I see no reason to doubt it, inasmuch as no evidence whatever was introduced locating the trespass, we are bound to assume that damages were assessed for the trespass admitted by the answer committed in moving the alleged division fence off of plaintiff’s land, and that in the doing of that
The defense of the statute of limitations must also fail. Mrs. Owens, under whom defendant claims, says she never set up or intended to claim any land not within the calls of her deed; and, further, it very clearly and conclusively appears from the evidence that for a great many years, whatever authority she exercised over the premises in dispute was permissive on the part of Mr. Abraham; that she fully recognized his title, and that he agreed with her that he would never disturb her as long as she wished to occupy it. It would be a misnomer and a confusion of all legal distinctions to call such an occupancy adverse, or to suppose that by a continuance for any length of time it might be the source of title by adverse enjoyment.
-The decree appealed from must therefore be affirmed.