Hapgood v. Burt

| Vt. | Jan 15, 1832

Baylies, J.,

delivered the opinion of the Court. — The correctness of the decision of the court below depends upon the facts,, which were reported by the referees, and the law to be applied to those facts. It is not every possession of lands for fifteen years, that will give the tenant a title to such lands. Much depends on the character of the possession. To constitute a title, the possession should conform to the law, which is well expressed by Parsons, Ch. J., in the case of “ The proprietors of the Kenebeck Purchase vs. John Springer, (4 Mass. Rep. 416.) He says, “When a man enters on the land claiming a right or title to the same, and' acquires a seizin by his entry, his seizin shall extend to the whole parcel, to which he had right; for in this case an entry on partis an entry on the whole. When a man n.ot claiming any right or-title to the land shall enter on it, he acquires no seizin, but by the ouster of him who was seized, and he is himself a desseizor. To constitute an ouster of him who was seized, the disseizor must have the actual exclusive occupation of the land, claiming to hold it against him who was seized, or he must actually turn him out of possession. When a disseizor claims to be seized by his entry and occupation, his seizin cannot extend further than his actual exclusive occupation ; for no further can the party disseized be considered as ousted : for the acts of the wrong doer must be construed strictly, when he claims a benefit from his own wrong.”

“ To constitute a disseizin of the owner of uncultivated lands, by the entry and occupation of a party not claiming title to the land, the occupation must be of that nature and notoriety, that the owner may be presumed to know that there is a possession of the land adverse to his title : otherwise, a man may be disseized without his knowledge, and the statute of limitations may run against him, while he has no ground to believe, that his seizin has been interrupted.”

Fifteen years uninterrupted wrongful possession, with actual notorious occupation, claiming the land as his own, whether at first the entry of the tenant was with, or without colour of title, tolls the entry of the rightful owner, and,by our statute of limitations, is a bar to any possessory action which the owner can bring.

The report of the referees slates, that the plaintiff and others in 1804, or 1805, cut timber, and made coal on the land in question. Probably this was a mere trespass upon the freehold ; or it was done by the licence, or for the benefit of the owner of the land, and cannot be considered as the beginning of a title by possession. The report also says, “that from 1810, till the defendant entered upon, and took possession, ol that part of the ‘back lot’ which is on lot no. 33, in 1825, the plaintiff occupied the ‘back lot’ as a pasture, called it his ‘back lot,’ and occasionally, during all that period of time, repaired the fences around it.” But this does not show, that the plaintiff was in possession of the land’in question, fifteen years before the defendant’s entry. To determine the length of time, it is necessary to know the month in which the plaintiff made his fence, and the month in which the defendant entered. If the plaintiff made his fence in December, 1810, and the defendant entered in January, 1825, the plaintiff’s possession fell short of fifteen years. It was for the plaintiff to have proved, that he possessed the land in question, adversely, for fifteen full years — and it should appear to be a continued, and unInterrupted possession", not an occasional improving the .land one year, and not occupying the next. It also appears, that the plaintiff claimed to hold lot no. 57 for his brother, Hutchins Hapgood, and occupied the back lot, so called, five years in common with the tenants cf Bradley Barlow, who claimed lot no. 38. And there are several other facts disclosed, which have a bearing 'against tile plaintiff Is supposed -title. Prom all the facts in the case, it was for the ¡referees’to decide, whether the plaintiff show-c dal egálHifleioibe land in question, by adverse possession, if his possession was short of fifteen years, although it was prior to the defendant’s entry, it could not avail the plaintiff if the defendant was the rightful owner. It does not appear from .the report, how the referees decided ihe several questions of law, which were raised by counsel in argument. But, in doming tb íhéír final decision, they say, théy intended to be guided by the law of the land. This Court will not presume that they departed from this i'ule.

The judgement of the county court iis affirmed with additional costs.