Upon the evidence disclosed in the case, the plaintiff established, as against a stranger to the true legal title, a good and sufficient possessory title to enable him to maintain an action of tort for disturbance of his possession, or, under the old form of pleading, an action of trespass quare clausum.
In this state of the case, the defendant was required, if he would maintain his defence, to show a better title. He failed to produce any sufficient evidence of an older title by possession. It has become important for him to show a good paper title.
A deed was also introduced from Jedediah Burrill, dated April 16th 1845, under which the defendant claimed a right to locate upon lands of the proprietary. The defendant also contended that he had made a location, and acquired title thereby, on the 23d of March 1845, as would appear from the records of the proprietary. In answer' to this, the plaintiff denied the validity of that location, or that there were any proper officers of the proprietary, competent to act in the matter; and offered to show that there had been no proprietary meeting for fifty years previous to the year 1842; and that all those who had held offices in the proprietary were then deceased; which was conceded. The defendant thereupon attempted to set up a new organization of the proprietary in 1842. Such new organization required the calling of a meeting upon the request of five proprietors, and the evidence failed to prove that the five persons who called the meeting were proprietors. There was no sufficient evidence offered to show that the meeting of 1842 was a legal meeting, and none rejected by the court that was offered on that point. The court rejected the book of records as of itself showing a legal meeting, without further proof as to the persons who called it, &c., as was held in the case of Stevens v. Taft, 3 Gray, 487. The failure to establish the new organization of the proprietary in 1842 was not only fatal to the location
The offer to show a regular organization of the proprietary on the 25th of October 1855 was properly rejected, being an organization subsequent to the commencement of the present action and the time of committing the alleged trespasses for which this action was brought.
In the aspect of the case, as it was presented on the trial, the presiding judge properly rejected the evidence as to locations made under the authority of the meeting of 1842; and we perceive no ground for exceptions, on the part of the defendant, to any rulings upon points material to the case. It becomes unnecessary to consider particularly the rulings of the court upon the paper title offered by the plaintiff, as, in the view we take of the case, the plaintiff was entitled to maintain his action irrespectively of that; and the verdict for the plaintiff should be sustained as correct in matter of law, and the only proper verdict upon the facts proved as to the possessory title of the plaintiff; the defendant having failed to show any title in himself controlling it. Exceptions overruled.