10 N.H. 397 | Superior Court of New Hampshire | 1839
In this case David Glidden, the grantor of the tenant, had originally the title to one hundred acres of land, part of Great Lot No. 10, containing 1100 acres. This tract of land is taken from Great Lot by starting at a given point within the same, 200 rods from the south-west corner of a lot conveyed on the same day to one Andrew Glidden ; thence running certain courses and distances, to include the one hundred acres.
It is said in the argument of the counsel, that it is impossible to fix at this day the precise point from which David Glidden was to run, to establish the comer of his lot. It appears, however, that nearly seventy years since, soon after his purchase of the land, Glidden commenced clearing at a point on the plan used in the trial, marked B, as the supposed corner of his lands, and the plaintiff concedes that Glid-den is entitled to one hundred acres running from that point the courses and distances mentioned in his deed. He, however, Avithout any actual survey of his land, cultivated and improved not only the one hundred acres thus conceded to him, but extended his farm eastwardly without the limits of the one hundred acres, so as to include some fifty or sixty acres of land in addition to the quantity conveyed; thirty acres of which land David Glidden conveyed to his son Jonathan, the tenant, on the 18th of March, 1830, which thirty acres the plaintiff demands in this writ.
We are of opinion, however, that his deed gives him a title only to the quantity of land specified ; and that all the land he can hold beyond the proper limits named in the deed, can be holden only by actual possession and improvement. There is sufficient evidence to show that he held adversely beyond the limits of the 100 acres, claiming title in himself; and twenty years actual possession will give him a title to the land thus holden. But for this purpose there must be a real and substantial occupancy of the land. The rule on this subject, as laid down by Chief Justice Kent, is that “there must be a real and substantial enclosure — an actual occupancy, which is definite, positive and notorious — to constitute an adverse possession, when that is the only defence, and is to countervail a legal title.” 2 Johns. 230, Jackson vs. Schoon-maker. This is the doctrine generally of the New-York cases, and is recognized as sound law in the case of Smith vs. Hosmer, 7 N. H. Rep. 436; Ditto 457, Enfield vs. Day.
Such a possession on the part of the plaintiff’s grantor extended in this case over a considerable portion of the land demanded by the plaintiff: but it seems clear that it could not extend over the whole tract, and that testimony was admitted showing a loose, uncertain claim, rather than actual occupancy of a portion of the premises demanded; and the testimony thus far was inadmissible.
It appears that the tenant’s grantor occupied a portion of land, extending across the southerly end of the demanded premises; but the extent of the occupation of the demanded premises on the northerly side is uncertain.
The case finds that a brush fence was built upon the north side of the Giidden farm, on what was supposed at the time
David Glidden occupied the cleared portion of the demanded premises ever after clearing the same, together with other land lying west of it in the farm, as a field and pasture ; a small portion only of the demanded premises being a field; and from that portion of the demanded premises which is not cleared, he, and his sons holding deeds under him, had hauled wood for fuel, from the time of its first being taken possession of by them until the present time.
The mere enclosure by , a brush fence, including a considerable tract of woodland, without notice to the owner, would constitute no such occupancy as to overcome the legal title; neither would the cutting or hauling of wood from the same, as a wood lot. 1 Cow. 276, Gilliland vs. Woodruff; Ditto 605, Young vs. Camp.
Adverse possession is to be taken strictly. 3 N. H. Rep. 26; 8 Pick. 272, Poignard vs. Smith; 14 Ditto 224, Bates vs. Norcross; 3 Greenl. R. 131, Brown vs. Gay; Stearns on Real Actions 39.
In 1 Cowen 276, where the defendant had a deed of lot number four, and took possession of lot number five, adjoining, believing it to be lot number four, claiming it as such, and improving it in part, it was holden that the adverse possession did not extend beyond the actual improvement.
On the testimony in this case the plaintiff was entitled to recover a portion of the demanded premises ; but the verdict was taken for the whole land claimed, which was wrong.
It has been objected to a recovery in this case, that an entry should have been made by the demandant to revest the seizin in him, before suit brought; but it has long been established law in this state, that where the grantor has the title, with a right of entry, the land will pass, although it may at the time be in the adverse possession of a third person. Regret is expressed, in Willard vs. Twichell, 1 N. H. Rep.
It is farther objected, that the plaintiff shows only a title in two thirds of the demanded premises ; that the defendant is tenant in common, and the plaintiff cannot recover against him, unless an ouster is shown.
If, however, the tenant in a writ of entry does not disclaim, or plead non tenure, but goes to trial on the general issue, he thereby admits that he is tenant of the freehold. Stearns on Real Actions 232; 1 Pick. R. 318, Stevens vs. Winship; 7 Mass. R. 30, Pray vs. Rice; 13 Ditto 259, Alden vs. Murdock.
The course for a tenant in common in such case would be, to disclaim for the undivided portion he did not hold. This exception, therefore, cannot prevail.
Verdict set aside, and new trial granted.
