97 Mass. 519 | Mass. | 1867
The record title to the premises covering the locus in quo is established in the plaintiff by the former decisions in this case. 11 Allen, 229. 13 Allen, 288. The defence is now placed upon two grounds. First, that the defendant has acquired title by disseisin. Second, that by adverse use he has acquired a right to take the growing wood and crops from the land and make such other use of it “ as was not inconsistent with plaintiff’s right to flow ” it for his mill-pond.
.The jury having found, upon proper instructions, that the occupation of the defendant did not constitute a disseisin of the plaintiff, the defendant contends that they ought to have been allowed to find a verdict for him upon the second ground ; and that the instruction was erroneous “ that, unless they found upon the evidence disseisin of the entire fee of the land by the defendant, they should find for the plaintiff.” The right claimed by the defendant at the trial was the entire usufruct of the land, subject only to the unused right of the plaintiff to flow it by his dam. But, as that right to flow had not been exercised for nearly thirty years, the evidence which would establish the right claimed by the defendant would establish complete title by disseisin. And if the evidence failed to establish the one it must fail also to establish the other. The right to flow, in the plaintiff who held the record title, was an incident of his title, and not an easement. An easement of a right to flow land of another, if there had been no abandonment of the right, might survive twenty years of such occupation as the defendant undertook to prove. This would be on the ground that such occupation was in accordance with the legal title of the occupant, and not adverse to the title or right of the owner of the easement. But when such exclusive occupation is relied upon to establish a right to the use of the land adverse to the owner of the title, it is difficult to see how there can be a reservation of the right to flow, in favor of the owner of the fee, out of the adverse rights thus acquired. It cannot be held as an easement, because the supposed owner of the right is owner of the servient estate. In this case, as there has been no exercise of the right to flow within the period covered by the evidence of adverse use, whatever rights were acquired by such use would be without any restriction in favor of such flowage. If the plaintiff should seek to exercise his right to flow, he must do it as owner
As to the effect of the former judgment relied upon by thu defendant, the ruling of the court below seems to us to have been correct. Making no question as to there being such a privity between the parties as to render the judgment admissible in evidence, the court ruled that it was not conclusive. A judgment for the defendant-in an action of trespass quote clauswh does not necessarily settle anything beyond the particular facts of the trespass sued for. It may be rendered upon failure of the plaintiff to prove the acts alleged, or upon his failure to prove his right of possession. Either would be sufficient to sustain the judgment for the defendant. If the proofs should
In the present case the defendant offered proof that the other action was tried upon the sole question of title to the premises. If title in the defendant could be thus conclusively established in an action of trespass, it must be such title only as was put in issue. The plea in the former action was “ that a part of the close mentioned in the plaintiffs’ writ was the soil and freehold rf the defendant,” and a denial that he entered any other part f the close. Judgment upon such a plea could not establish a . gbt to any particular portion of the premises except the part vpon which that trespass was committed. There was nothing to show that the localities of the two successive trespasses were identical.
But, further than this, it appeared, from the whole evidence on this point, that the jury in the former case did not pass upon the question of title at all. Certain facts were found specially by them. But those facts did not settle the question of title, as has been since determined by this court. Thereupon the judge directed a general verdict for the defendant. The judgment upon that verdict is conclusive for all purposes as a judgment in that case, notwithstanding any error of law upon which the direction to the jury was founded. But when the defendant seeks to set it up in this case as an estoppel upon the question