Johnson v. Gorham

| Conn. | Sep 15, 1871

Seymour, J.

This is an action of trespass quare ciausum, in which the plaintiff avers that the defendant with force and arms broke and entered into and upon the plaintiff’s land, and trod down and destroyed the herbage then and there growing, and cut down the trees, and dug up the ground, to the plaintiff’s damage.

Under this declaration the jffaintiff was permitted, against the defendant’s objection, to prove that the defendant not only cut down the trees, but removed the wood, and the jury were instructed that in estimating damages they might take into consideration the cutting and removal of the wood, if the trespass was one continued act. It is conceded that the cutting the trees and the carrying away the wood may be parts of one continued act, and if they are so, the plaintiff may so treat them, and recover for the entire act in one count, provided the count be with proper averments adapted to the case. The cutting, however, may be wholly unconnected with the carrying away of the trees cut, and then, by strict rule, there should be two counts for the two acts, one for the cutting, and another for the carrying away. But where the plaintiff claims damages in his declaration for the cutting only, the defendant cannot be required to come to trial prepared to meet evidence of damage done by removal. The office oí the declaration is to apprise the defendant' fairly and fully of the plaintiff’s claims; and the cutting of the trees does not involve their removal. The mere cutting may be a slight injury to the owner, and sometimes might he a benefit. The carrying them away, and converting them to the defendant’s use is quite a distinct thing.

Eor this cause there must be a new trial.

The charge of the judge in regard to adverse possession was probably correct in reference to the circumstances of the case before him, but abstractly considered is liable to objection, and would be quite incorrect in reference to cases that- have occurred, and may again occur. The charge is as follows: “ A person to acquire a title by possession, must have the actual use and possession of the land. It is essential that he possession should be adverse to the right of the owner, and that the possessor should hold the land claiming it as his own, and denying the right of everybody else.”

In the case of Huntington v. Whaley, 29 Conn., 398, Judge Sanford giving- the opinion of the court says: “ The only legitimate inquiry for the jury was, whether the defendant, and those under whom he claimed, had for the period of fifteen years had the actual, open, adverse occupancy and possession of the controverted property, claiming it as their own, and actually excluding all other persons from the possession.” As applied to the facts in the case of Huntington v. Whaley this language is not open to objection ; but as an absolute proposition of law, and as a complete definition of adverse possession applicable to all cases, the charge of the judge below, and the language quoted from Judge Sanford’s opinion in Huntington v. Whaley, require explanation and qualification.

In the case of French v. Pearce, 8 Conn., 442, Judge Hosmer, in speaking approvingly of the case of Bryan v. Atwater, 5 Day, 181" court="Conn." date_filed="1811-11-15" href="https://app.midpage.ai/document/bryan-v-atwater-7866410?utm_source=webapp" opinion_id="7866410">5 Day, 181, says, “ the first principle asserted in that case is, that to render a possession adverse it is not necessary that it should be accompanied with a claim of. title, and with the denial of the opposing title.” Now although the language of Judge Sanford in Huntington v. Whaley is in direct contradiction to the language of Judge Hosmer in French v. Pearce, it was not Judge Sanford’s intention to question the soundness of Judge Hosmer’s views. Judge Sanford did not undertake to give a complete definition of adverse possession as applicable to all cases; he intended merely to say that, situated as the defendant was in the case of Huntington v. Whaley, the legitimate inquiry for the jury was whether the defendant had possession of the controverted property, claiming it as his own. From what appears of the facts in the case now under our consideration, the absence of a claim of ownership on the part of the defendant would appear to be a very decisive circumstance to show that the possession was not adverse, but it is clear that such claim of ownership is not, as matter of law, an indispensable element of adverse possession. A party in possession of land under a defective deed may openly admit that the legal title remains in the grantor, and admit that his own ownership is therefore imperfect, and yet his possession may be ' adverse. The right of the owner of real estate is barred, if he suffer himself to be ousted of possession for fifteen years, and the true inquiry in these cases is whether the owner is ousted.

Judge Ingersoll, in Bryan v. Atwater, places the subject in its true light, when he says: “ To make a disseisin it is not necessary that the disseizor should claim title to the lands taken by him. It is not necessary that he should disclaim or deny the title of the legal proprietor. It is necessary only that he should enter into and take possession of the lands as if they were his own. * * * If property be so taken and so used by any one, though he claims no title, but avers himself to be a wrong doer, yet by such act the legal proprietor is dis-seized.”

The result of the cases is that assertion of title by the possessor is an important circumstance indicating adverse possession and ouster of the real owner, and the absence of such assertion may be an important circumstance, and often very important, as indicating that the possession is not adverse ; yet the question of ouster is one that must depend upon all the circumstances of the case, and it is not therefore strictly true, as stated in the charge under consideration, that it is essential that the possessor should hold the land claiming it as Ms own, and denying the right of every body else.

In the instance given above of the occupant under a defective deed, there is indeed a sense in which he may be said to claim the land as his own. He may properly assert his equitable title, as being superior to the legal title which he admits to be in his grantor. But whether he asserts such claim or not makes no difference with his rights. The mere fact of possession under a defective deed would, in general, indicate that the possession was adverse. In the case put by Judge Ingersoll in Bryan v. Atwater, where the party in possession avows himself to be a wrong-doer, the true owner would be disseized, and the possession would be adverse, and in such a case there is clearly no claim of title by the possessor in.any sense of the term.

New trial advised.

In this opinion the other judges concurred; except Butler, 0. J., who did not sit.