9 Vt. 352 | Vt. | 1837
The opinion of the court was delivered by
If an entire lot be owned by different proprietors, who are in possession of separate parcels of the lot, and a divisional line is acquiesced in for fifteen years, it is thereby established. If no line of division be in fact drawn, but the parties acquiese in an imaginary line of division, this is the same as if the line had been marked by visible monuments. If a person'own the whole of a lot, and convey a given number of acres oft one end, or one side, this is to be understood by a line parallel to the lot line, If two own a lot in equal portions, in severalty, but in fact not divided, and enter on extreme parts of
The question whether the defendants had such a previous possession of the land in dispute, as will prevent their being sued as trespassers, does not seem very different from the main question in the case. If the defendants had possession of the land first, and had equal right to the land, they should, and under the charge of the court, would have recovered. If they went into possession without right, and as mere trespassers upon the plaintiff’s rights, he having a superior right tq the land, he might well put the defendants out of such wrongful possession, and if he did it by force even, he would acquire a rightful possession, and would, at most, only be liable fqr a breach of the peace, or a trespass upon the person of defendants. It was formerly considered that the proprietor of land, who found an intruder in quiet possession of the same, must resort to his legal remedy, and could not forcibly expel such wrong doer. But it is now well settled, that such intruder may be forcibly expelled, so far as the land is concerned. If the owner of the land is guilty of a breach of the peace, and trespass upon the person of the in-trader, in so doing, he is liable for that, hut his possession of the land is lawful, and he may maintain it, or sustain any proper ac-for an infringement of it.
The declarations of Boothe, while in possession of the land, whether as tenant or proprietor, were correctly admitted. It was material for the jury to determine whether any divisional line had been acquiesced in. Boothe had been in possession of the portion claimed by Buckminster, and in the chain of occupants, under whom Buckminster claimed, and, while so in possession, had disclaimed all pretension to hold or occupy the land in
Judgment affirmed.