2 Aik. 172 | Vt. | 1826
delivered the opinion of the Court.
In trespass quare clausum fregit, which is a local action, if the declaration gives the boundaries of the locus in quo, or otherwise describes it with certainty, it must be proved as laid ; and the plaintiff can recover only on proof of a trespass where he lays it. (Brown vs. Hedges, 1 Salk. 290. — Helvis vs. Lamb, 2 Salk. 453. — Bull. N. P. 89. — Drewry vs. Twiss, 4 T. R. 558.) In this case, the declaration alleges the trespass to have been committed at Fairhaven, in a certain close of the plaintiff, lying and being in Fairhaven, beginning in the west line of Poultney, &c. giving the boundaries, and making the west line of Poultney the east boundary of the close. The plaintiff, therefore, was bound to prove, and could recover only for a trespass committed in the locus in quo thus described. But the court allowed the plaintiff to prove, and instructed the jury that he might recover for a trespass on land in Poultney, if he had possessed the land on which the trespass was committed fifteen years before the trespass, and claimed it as lying in Fairhaven, and as part of the close described in his declaration. The claim and possession of the plaintiff for fifteen years might give him a good title to the land in Poultney, so possessed by him, and if the declaration had alleged the trespass on land described as being thus situate, he might have had a right to recover. The case does not state that any uncertainty existed, or that any question was made at the trial, respecting the divisional line between the two towns, though probably such was the fact. If in truth there was any uncertainty as to the line, and it was doubtful in which of the towns the land on which the trespass was committed lay, the plaintiff might have obviated any objection of a variance, and avoided all difficulty in this respect, by inserting another count in his declaration, laying the locus in quo in Poultney. But not having done this, and the trespass being alleged to have been committed in Fairhaven, and the close described as there situate, the plaintiff was bound by the description so given; and unless
We also think, that the deposition of Haney Gibson was improperly excluded.
New trial granted.
Note.—The case, as allowed, was imperfect, and essentially so as to this point. The plaintiff, in making out his case on trial, first relied on his title by deed ; and before any other title to the locus in quo was set up by him, the defendant offered the deposition of Haney Gibson, which was rejected for irrelevancy. Afterwards, when in the further progress of the trial, it had become questionable whether the west line of Poultney was the east line of the locus in quo, as claimed and possessed by the plaintiff, he resorted to a title by possession 'under the statute. The Court thereupon perceived, and instructed the counsel for the defendant, that the deposition of Harvey Gibson had become relevant to the issue, as tending to show, that the possession relied on by the plaintiff was not adverse, and was material and proper evidence to go to the jury, Reporter.