| Vt. | Jan 15, 1827
The opinion of the Court was pronounced by
It has been repeatedly decided by this court, that prior occupancy is sufficient to entitle the person seized to maintain trespass or ejectment against a stranger to the title, and these decisions are conformable to the common law.
The only inquiry in this case is, did the plaintiff show in evidence on trial, a seizen or possession by prior occupancy, of a character which the law will recognize as sufficient to maintain the action ? and did the court, in charge, instruct the jury correctly in that particular ? From the facts reported in the case, it appears that the plaintiff showed no claim to the premises but by occupancy, and that the defendant is a stranger to the title.
The counsel for the defendant insist, and very correctly, that to entitle the plaintiff to recover, be must have shown such acts of ownership exercised and performed by him in the occupancy and possession of the premises, as would have subjected him to an action of ejectment by the original proprietor, and such as would, if continued 1.5 years, have given him a title under the statute of limitations. If the acts and doings of the party are not such as to evince a claim of titlé, he must, of course, be re
One trespasser cannot be accountable to his co-trespasser, the latter having manifested no claim, or pretended to any right, has, in contemplation of law, no possession that can be disturbed.
In the case before us, the acts proved to have been performed upon the land by the plaintiff are not of a character inconsistent with such as may be exercised by a mere trespasser. They are not such as would necessarily be taken and considered by the owner or proprietor as evidence of a claim of title.
The erection of fences, or making permanent improvements, are of a character that cannot be mistaken for acts of trespass. They clearly indicate a claim of title, arid must put the owner on his guard. If there is nothing more than cutting and taking timber and wood from year to year and time to time, although it should be continued for fifteen years in succession, we cannot say that this would give a title under the statute, especially if the premises are disconnected with other improved lands of the parly, and are wholly wild and uncultivated.
It appeared on trial, and is now admitted, that the lands in question are not susceptible of cultivation, being swampy and only valuable for timber. Although the acts of the plaintiff upon the land were not of a character necessarily indicating claim of title, it is to be noticed they are not exclusively acts of trespass, but are such as may well be performed by, and are the ordinary acts of the owner, or person claiming title. Tq give character to such acts, it may be necessary to look for other evidence. We will therefore examine the case, and ascertain whether the plaintiff has furnished the jury with the evidence which the law requires. The facts shown in evidence are that, in August 1812, the plaintiff levied an execution upon the lot in question, it was appraised to him as the estate of his debtors, L. & R. Clark. L. & R. Clark had before that time, viz. on the 13th day of August, A. D. 1811, taken the same lands in execution against C. Humphrey. C. Humphrey had purchased the same of E. Andrus by deed dated 28th January, 1805. E. Andrus claimed by deed of D. Weston, dated 22d December, 1794, described as half the original right of Geo. Nichols. A survey is also shown of the lot in question to E. Andrus upon the right of Geo. Nichols, dated 5th April, 1798. The metes and bounds, described in the survey, are the same as described in the officer’s return upon the execution of the plaintiff. This actual survey of the lot, and the recording of the survey, as also of the deeds, &c. are not equivocal acts, but furnish clear and decided evidence of a claim of title.
The levy of the execution of the plaintiff, and thereby satisfying a debt to a large amount, and causing the record thereof to be made, is to be regarded in the same light. The effect of the
The cutting and taking from the premises, wood and timber by the plaintiff, immediately after the time of redemption expired, and as soon as he would have a right to enter, if a perfect title had been acquired by the levy, are acts, therefore, fully explained by that which had before transpired, and the claim made as publick as can be required.
But it is insisted the possession must be exclusive, and that it appears the ancester of the defendant, soon after the plaintiff, commenced the exercise of similar acts, and that both have since continued cutting, &c.
If the plaintiff, for the first trespass committed upon the land by the deceased, in March, 1814, could have maintained an action at that time, by the force of his prior occupancy, he can of course maintain an action for any subsequent trespass, having never abandoned, but continued the claim by the same acts of ownership.
To acquire a title by the statute of limitations, the possession or occupancy must be exclusive, or rather it must not be concurrent with the owner.
If in this case, Linsley had made no claim to the premises, but had acted under licence of Doolittle, there would be no doubt 15 years from the .entry of Doolittle, would bar the owner. Of course, whenever two or more persons, under claim of title, enter upon, use, and occupy, for more than 15 years, unmolested by the proprietor, although they claim severally and in opposition to each other, the title of the former proprietor, he having made no claim for that period, is gone. The title of the owner is extinguished by a possession adverse to him for fifteen years, and when his title is determined, it will vest in him who has occupied for the term of fifteen years, and not in him who has occupied but for fourteen years, or any other period short of fifteen years.
If, then, as we consider the acts of the plaintiff” upon the lands, of the character and description shown on trial, connected with the evidence of the claim of right, are sufficient to give a title by fifteen years continued exercise, he can maintain this action against a stranger to title, and such the defendant, from the evidence, must be regarded.
We have no hesitation in saying, that the acts of the plaintiff”, as shown in evidence, would preclude him from the benefits of a disclaimer, in the action of ejectment.
•It may be proper to notice, that although there have been heretofore, some decisions of our courts, giving a construction to the statute calculated to divest the proprietor of his title, where the person claiming had entered without colour of title, and had made no permanent improvements, or enclosures, they have not been supported by the more recent determinations.
In this case, the acts of the plaintiff were the ordinary acts of an owner of the premises, accompanied by claim of title, and this made publick; and his entry was by colour of title, i. e. a supposed title by levy of, and an appraisal upon, execution. We are, therefore, unanimously of opinion that the instruction to the jury was correct, and that not only by the decisions of the courts in this state, but by the decisions of the courts in England, these principles are. fully recongized. — 4 Taunt. 547, Cutler vs. Cowper. — 2 Saund. 111, Harrington vs. Rivington. — 1 D. Chipman’s Rep. 141. Elithorp vs. Dewing.- — 1 D. Chip. Rep. 92, Pearsal vs. Thorp.
Judgment of the county court affirmed.