1 Mass. 483 | Mass. | 1805
You must show an exemplification of the resolve, if required ; and you must also show the original deed of release. The Court do not take notice of private acts, nor is the printed book of the printers to the General Court evidence of such acts, as it is of public acts. Sewall, J. This release creates no seisin ; but you may show a possession in the proprietors independent of the release.
* The proprietors’ book of records was then produced, [ * 484 ] by which it appeared, that at a meeting of the proprietors in January, 1764, a standing committee was appointed to employ a surveyor to lay out any of their. lands, from time to time, as such committee should think proper; and J. J. was called as a witness, to prove that he was employed as a surveyor for that purpose, by the committee. He, being sworn, was asked if he was so employed by the committee, and, answering in the affirmative, was asked whether his appointment was or was not in writing. He said that he had an authority in writing from the committee, but could not say whether it was lost or not.
The writing must be produced, (being the best evidence,) unless it is proved to be lost or destroyed.
Bridge now offered to show grants made by the proprietors of land in the vicinity of the locus in quo as evidence of their possession.
This was objected to by Parker for the defendant: as this is a possessory action, they must show actual possession.
Legal seisin carries with it the possession, unless there be adverse possession.
The plaintiffs then proved several grants made by them, in the year 1764 and since : they now produced the written appointment of the surveyor, in 1771, who testified, that he surveyed divers parcels of land for them, within the limits of their claim. They then showed the original indenture of the 27th of October, 1661, made by and between the General Court, for the jurisdiction of Plymouth, in New England, on the one part, and Thomas Wins-low, and others, on the other part, granting to the Plymouth company, the tract of land claimed by the plaintiffs ; which was recorded in the county of York, in 1719, the lands being within the limits of the then county of York: they next proved a * regular meeting of the proprietors in 1749, under a [ * 485 ] warrant from a justice of the peace for that purpose; and then proved the entry of the defendant into the locus in quo,
contended that the entry and possession of the defendant, which had been proved in this case, were an ousting of the proprietors, the plaintiffs. And [ * 486 ] that as * trespass is a possessory action, grounded on a supposed injury to the actual possession, the plaintiffs could not maintain this action, until entry, and actual possession, oi by previously bringing ejectment and recovering, after which they might, perhaps, have had an action of trespass for the mesne profits. [Sewall, J. The counsel forget to state the exception to the rule, which is, that where the act complained of is the actual ouster, an entry is not necessary,, to enable the plaintiff to maintain trespass.] Parker. Admitting it to be true, yet the plaintiffs in this case can recover damages for only the first act, the disseisin itself, but nothing for what is laid under the continuando. [Sedgwick, J. The question is, whether there was a disseisin or not. If there has been a disseisin, then the question is, whether the plaintiffs can recover any thing more than nominal damages, in the present action.]
contended that there had oeen nc
The defendant relied upon his possession, and proved that in December, 1792, he surveyed part of the land described in the declaration, by running out the lines and marking the trees. The tract so run out by him, was testified to be about 340 rods in length, and 196 rods in breadth; that he*afterwards built a barn on it, and in 1794 made a fence round it. But upon the cross examination of his witnesses, it appeared that this fence was nothing but what is called a brush fence, and was made by four men in two days, and that the barn was a mere shed, for the purpose of putting his oxen under cover, during the winters at the times when he was cutting and conveying away the timber from the land. Nor did the defendant produce or offer-any evidence that he claimed under a deed or grant from any person ; or that he had any writing whatsoever, as evidence of a right to enter. And it further appeared in evidence, that his possession was not a continued one, but only during several successive winters, and until he had stripped the land of the most valuable timber, when he had abandoned it en tirely.
Mellen. On the abandonment, the possession reverted; and upon the principles of law, as well as by the dictates of common sense, the possession would follow the seisin, which was in the plaintiffs. It is true that, during the adverse possession, the plaintiffs could not maintain this action so as to recover damages for any thing but the first trespass; but it is admitted that had they made an actual entry previous to commencing the action, they would have been entitled to recover for the whole. An entry is requisite, where there is actual adverse possession, that the owner may revest himself in the possession of the land; but where there is no such adverse possession, where no one is in the open possession, an entry is an idle formality, nor can there be any reason for making one.
The Court (Sedgwick, Sew all, and Thacher, justices) took time to consider, and the next day' they said that they were clearly and unanimously of opinion that the defence, relied on in this case, co.uld not avail. That the possession which would defeat the