Ginn v. Ulmer

| Me. | Mar 13, 1909

Peabody, J.

This case is based upon a petition under R. S., chapter 106, sections 47 and 48 as amended by chapter 150, Public Laws of 1907, to compel the defendant to bring an action to try his title to a parcel of land in South Thomaston in the County of Knox.

The petition was inserted like a declaration in a writ of attachment, and the defendant filed an answer with a motion that the petition be dismissed and a demurrer to its sufficiency for the reasons: first, the question raised is one of boundary only, and on account of the uncertainty in description he does not know whether he claimed any part of the land and therefore cannot have the benefit of a disclaimer; second, the description is too vague and indefinite to give him notice of the land in question ; third, he made no claim adverse to the title of the petitioner; fourth, paragraphs 5 and 6 give no statutory reason why he should bring action against the petitioner. The motion and demurrer were overruled and the case is before this court on the defendant’s exceptions.

The petition sets out all' the requirements of the statute; an uninterrupted possession of the premises by the petitioner for ten years, a claim of freehold therein, a sufficient description, and an apprehension of an adverse claim by the defendant which creates a cloud upon the title, and it concludes with a prayer that the defendant may be summoned to show cause why he should not bring an action to try title to the premises described. All these propositions were passed upon by the single Justice, and so far as they involve matters of fact, the finding is conclusive. Proprietors of India Wharf v. Central Wharf and Wet Dock Corporation, 117 Mass. 504" court="Mass." date_filed="1875-05-08" href="https://app.midpage.ai/document/proprietors-of-india-wharf-v-central-wharf--wet-dock-corp-6418106?utm_source=webapp" opinion_id="6418106">117 Mass. 504.

It is therefore shown that the petitioner had possession of the premises described, a freehold estate, and that he was apprehensive of an adverse claim of the respondent which created a cloud upon his title.

Under the exceptions we are also to consider the questions raised by the demurrer and determine whether the allegations of the petition are sufficient in law.

This statutory proceeding follows the analogies of equity rather than those of law, and the petition being preliminary only to a suit to be brought and prosecuted as seems to the court "equitable and just” is not governed by the same rules as the action itself. The description need not be so particular and definite as in a writ of entry or other action to try the title. Gurney v. Waldron, 137 Mass. 376" court="Mass." date_filed="1884-06-25" href="https://app.midpage.ai/document/gurney-v-waldron-6421367?utm_source=webapp" opinion_id="6421367">137 Mass. 376; Slater v. Manchester, 160 Mass. 471" court="Mass." date_filed="1894-02-27" href="https://app.midpage.ai/document/slater-v-inhabitants-of-manchester-6424824?utm_source=webapp" opinion_id="6424824">160 Mass. 471; Oliver v. Looke, 77 Maine, 585.

The land described is so much of a certain point now known as Ginn Point on Penobscot Bay, as is contained within the limits of the waters of the Bay and a stone wall running from tidewater near an old brick yard diagonally across the point. This must give the defendant notice of at least some part of the land to which the petition refers and was properly held sufficient by the presiding Justice. Silloway v. Hale, 8 Allen, 61.

The defendant in his answer does not make an unqualified disclaimer such as the statute contemplates, of all right and title adverse to the petitioner. While he denies that he has made a claim adverse to the title of the petitioner, an adverse claim is impliedly asserted by his statement that "the only difficulty there is between him and the petitioner is the establishment of a line on the northern boundary,” which in effect means that he has a claim dependent upon the location of this boundary line to be established by a judgment in a proper action between the parties, as in the case of Monroe v. Ward, 4 Allen, 150. Upon the facts presented by the record the proper action would be writ of entry brought by the defendant against the petitioner who is in possession, and not trespass by the petitioner against the defendant who has not actually interferred with the possession. Marshall v. Walker, 93 Maine, 532; Smith v. Libby, 101 Maine, 338; May v. New England Railroad Company, 171 Mass. 367" court="Mass." date_filed="1898-05-25" href="https://app.midpage.ai/document/may-v-new-england-railroad-6426414?utm_source=webapp" opinion_id="6426414">171 Mass. 367.

The petitioner used the language of the statute in alleging the adverse claim of the defendant, and we think it is sufficient.

The ruling of the single Justice is not shown to be erroneous. Oliver v. Looke, supra; Tisdale v. Brabrook, 102 Mass. 374" court="Mass." date_filed="1869-10-15" href="https://app.midpage.ai/document/tisdale-v-brabrook-6415793?utm_source=webapp" opinion_id="6415793">102 Mass. 374.

Exceptions overruled.