Partch v. Spooner

| Vt. | Jan 15, 1885

The opinion of the court was delivered by

Eowell, J.

Lawrence’s deposition was properly admitted. No reason can be given why an agent or attorney, or a person interested in a cause, should be prohibited from writing the certificate and caption of a deposition to bfe used in such cause; but good reason exists why they should not be allowed to indict and draw up the story itself, and give it form and dress; and this, and this only, is what the statute intends to prohibit. Moulton v. Hall, 27 Vt. 233.

The defendant took a general exception to that part of the charge detailed, without pointing out any specific objections thereto. It is now objected that the case disclosed a mixed possession of the parties, and that therefore the court was called upon to direct the attention of the jury to that feature of the case, and to tell them that the plaintiff’s possession must have been exclusive, and what would amount to an interruption of it, and that, if they found that both parties were in possession of the samé land at the same time, claiming adversely, the doctrine of' adverse possession would not apply. It is also objected that the court failed to distinguish between acts of trespass and acts of possession, and to instruct the jury that the acts of possession must have been such as to indicate that there was an adverse claimant who purposed to keep out the true' owner; and that there was no evidence that plaintiff’s possession was definite in extent, without which he could not recover on the ground of adverse possession.

The objection first named is the one most urged and relied upon.

It is difficult to lay down a precise rule by which to determine in all cases the character of that adverse possession necessary to confer title. Mr. Angelí says that perhaps the clearest and most comprehensive rule is, that it must be an actual, a visible, and an exclusive appropriation of land, commenced and continued under a claim of right. Angelí Lim. s. 390. In Hawks v. Senseman, 6 S. & R. 21, Mr. Justice Duncan defines it to be an actual and a continued, visible, notoi'ious, distinct, and hostile possession; and the American editoi’s of Smith’s Leading Cases — Yol. 2, p. [*5G1] — say that this is a singularly accurate and complete definition; and this is the definition adopted by the court below, and. it is probably as good and as comprehensive a definition as can well be given, though I for one would incorporate into it the word exclusive, believing that it would extend the legal scope of it, and make it more applicable to cases tending to show a mixed possession, as I think this case does. But my brethren all differ with me on this point, and think this is not a case of mixed possession, but that the fair inference from the exceptions is that each party possessed different parts of the lot; and that if this were not so, the charge conveyed the idea of exclusiveness with sufficient certainty, and was couched in apt legal language, and that if counsel desired a more full explanation and amplification of the terms used, they should have informed the court so in the time of it.

As to the objections that the court did not instruct the jury what would interrupt the plaintiff’s possession, and failed to distinguish between acts of trespass and acts of possession, and to explain what the acts of possession must have indicated as to an adverse claimant and his purpose,— it is sufficient to say, especially as it appears that on all points not excepted to the court charged fully and satisfactorily, that it must be presumed that the court charged correctly on all these points.

The objection that there was no evidence to show that plaintiff’s possession was definite in extent has no force, for the case does not show the absence of such evidence, and its absence cannot be presumed.

Judgment affirmed.