43 Vt. 717 | Vt. | 1871
The opinion of the court was delivered by
The action is trespass upon lot No. 125 in Bolton. The plaintiff claims to recover by virtue of a possessory title or right in himself and those through whom he claims. In his chain of deeds showing color of title, is one from Moses L. Colton to E. D. Colton, dated November, 1849; a deed from E. D. Colton to Thomas Owens, dated May, 1857, and a deed from Thomas Owens to the plaintiff, dated November, 1864. In the deposition of P. D. Colton, introduced by the plaintiff to show, among other things, possession of the deponent under his deed, there is a passage, to the admission of which by the county court the defendants except. The deponent says, “Prom the'time I took my deed of said lot till I sold the same, my occupation was uninterrupted otherwise than by the trespass of said Clough.” The objection urged by the defendants’ counsel against this portion of the deposition is, that what constitutes occupation, or occupation uninterrupted, is a conclusion of law and fact, to which it is uot competent for a witness to testify ; that the witness should state the facts, and leave
It is insisted that the court erred in not charging the jury, as requested by the defendants’ counsel, “ that no entry or possession of Moses Colton which the evidence tended to prove prior to the defendants’ entry and survey of October, 1849, was sufficient to give him any prior possession.” But the court told the jury that previous to the deed of Moses L. Colton to E. D. Colton of November 29,'1849, no possession was claimed on the part of the plaintiff that would be effectual. This was a sufficient compliance with the request, as that deed is of later date than the defendants’ survey of October, 1849.
The county court gave all the effect to the survey of the lot in October 1849, by Samuel Kennedy, under whom the defendants claim, the re-marking of the lines and recording the survey, that they were entitled to. The cutting of some small trees and bushes along the line, as convenience required in making the survey, did not change its character or add to its legal effect. It was an evidence of claim, but not an act of possession. As an evidence of claim of title, it would tend to characterize an act subsequently done upon the premises, as an act of possession, which might otherwise be regarded as but an act of trespass; but it was not itself an act of possession. As the court told the jury, it did not have the effect to put the plaintiff into possession. Doolittle v. Linsley, 2 Aik., 155, is cited to show that the survey and recording the survey bill is sufficient to constitute possession. In that case the plaintiff recovered by virtue of prior possession. He had taken wood and timber from the lot from time to time for a number of years, under claim of title. But the language of Skinner, Ch. J., is relied on as showing that the survey and recording amount to possession. Skinner, Ch. J., says : “ This actual survey of the lot, and the recording of the survey, as also of the deeds, &c., are not equivocal acts, but furnish clear and decided evidence of a claim of title; the levying of the execution of the plaintiff, and thereby satisfying a debt to a large amount, and causing the record thereof to be made, is to be regarded in the same
It is insisted that the court erred in submitting the question to the jury, whether the defendants had abandoned their possession prior to the entry of Papineau in March, 1867, and cutting the logs by direction of the defendants, for which entry and cutting the action was brought. It is insisted there was no evidence tending to show such abandonment; and that if there was sufficient evidence to submit to the jury, the charge on the point of abandonment was less favorable to the defendants than that to which they were entitled. The exceptions detail the whole evidence on the subject, and in the view we take of it, there was no evidence tending to show that either of the defendants, or those under whom they claimed, ever had any possession of any portion of the lot prior to the trespass by Papineau complained of in March, 1867. There is evidence of claim of title, but no proof of any act of possession. The defendants, therefore, cannot complain of error in the charge of the court on the question of their abandonment of possession, when it appears they had no possession to abandon. The case then stood entirely on the question of the plaintiff’s possession ; and a possession by the plaintiff at the time of the trespass complained of was sufficient. This the jury have found. There was no claim at the trial, and it is conceded by the defendants’ counsel in argument that there is no ground to claim, that there was any abandonment of possession on the part of the plaintiff.
The question made by defendants’ counsel as to the rule of damages is not within any exception taken by the defendants at the trial; but if it were, there is no error on this point of which the defendants have a right to complain.
Judgment affirmed.