Davis v. White, 27 Vt. 751

Davis v. White

27 Vt. 751 | Vt. | 1855

The opinion of the court was delivered by

Bennett, J.

The locus in quo is lot No. 35 in Goshen Gore. The plaintiff claimed title to the lot in question, under Silas J. *754Holbrook, by virtue of a deed, bearing date in 1853. Holbrook had no legal title to it. But it does appear that in 1849 the plaintiff made an arrangement with Holbrook to go into possession of the IN acres of the lot which, through mistake, had been cut over by „ and to clear them off and take the crops, and in the fall of 1c -><1 spring of 1850 the plaintiff cleared them off, built a fence around them and raised a crop of wheat on them in 1850, and stocked them down. In 1851 he mowed them, and repaired the fences in the spring of 1852 with an intention to mow them that season. But in July, the defendant cut and carried away the grass from the same. These facts, of course, give the plaintiff a right to recover, unless the defendant can stand against him upon a y)noj' possession, or upon a legal title.

The case finds that the defendant’s evidence did not tend to prove that Mrs. White or the defendant ever cut any timber or made any clearing on the five acres cleared and possessed by the plaintiff in the manner in which the case states, or had any enclosure of them, except by the slash fence around the whole lot. By this we understand that neither Mrs. White or the defendant, who claims under him, ever had any possession of the five acres in point of fact, but their possession of that portion of the lot was at most but a constructive one.

In the case of Ralph v. Bayley, 11 Vt. 521, it was held that a prior constructive possession can only be defeated by a subsequent actual adverse possession, and in the case of the Executors of Stevens v. Hollister, 18 Vt. 294, it was also held that the doctrine of constructive possession will not be extended to land in the actual adverse possession of a disseizor. The defendant then, to succeed against the plaintiff, must have something more than a prior constructive possession. No question can be raised, but what the plaintiff had the actual adverse possession of the five acres at the time the defendant cut and carried away the grass. As the case shows that there was no prior actual adverse possession in the defendant or Mrs. White, the defendant should have been put upon the proof of his title. But we do not understand from the case, that it was so put to the jury. Though the evidence may have tended to prove a title to the whole lot in the defendant by possession, and although the charge of the court may have *755been sound, if the trespass had been upon any portion of the lot, to which the defendant had had a prior actual adverse 'possession, and the charge had applied to that, yet, as applied to the five acres, of which the defendant nor Mrs White ever had any actual adverse possession, we think it was not. The jury, under the charge of court, were justified in returning a verdict for the defendant, though they should have found that his possession had not ripened into a title to the whole lot at the time the plaintiff took the actual adverse possession of the five acres, and although the defendant nor Mrs. White ever had any actual adverse possession of that portion of the lot. In effect, a subsequent actual adverse possession was made to yield to a prior constructive possession, and in this, we think, there was error. It is quite possible the jury would have found that the defendant’s or Mrs. White’s adverse possession of the lot had ripened into a title before the plaintiff took the actual adverse possession of the five acres, but as this was not put to the jury to find, the judgment of the county court is reversed and the cause remanded to that court.