Slater v. Jepherson

60 Mass. 129 | Mass. | 1850

Shaw, C. J.

On the trial of this case, the tenant offered evidence to prove title by grant and also by disseisin. The question of title by grant was left to the jury, upon the evidence, under instructions which were not objected to.

On the subject of disseisin, the tenant offered evidence tending to show occupation, by cutting wood and timber for use and for sale, the cutting off at one time of all the wood and timber standing upon the premises, the clearing of a small piece of the land with a view to cultivation, the sale of a part of the premises, the running of a line between the premises and the demandants’ other land, and the marking of the line run by lopping trees; and that such occupation was known to the demandants and to those under whom they claim. The land demanded was open and uninclosed woodland. No evidence was offered to show the inclosure of the land by fences, the building upon it, or cultivating it.

According to the cases decided in Massachusetts, and in Maine, whilst a part of the state of Massachusetts, these acts are not in their nature acts of exclusive possession, and therefore do not constitute proof of disseisin; and the judge, we think, was right in so stating the law to the jury. We are aware, that a somewhat modified rule, as to what amounts to a disseisin, has prevailed elsewhere; but our own rule has been too long practised upon, and too steadily adhered to, to war rant us in now changing it. It is of great importance to adhere steadily to established precedents, especially when they furnish rules regulating the title to real estate. No case, we think, has gone the length of deciding, in Massachusetts, that acts like those stated in the report would disseize the true owner, that is, the owner by documentary and record title.

Exceptions overruled.