| Superior Court of New Hampshire | Jul 15, 1835
' The ease finds that the deeds, under which the plaintiff claims, include the tract of land in controversy —and he is therefore entitled to recover damages for the removal of the fence erected by. him. unless the defendant can show, either an adverse possession, Or an agreement between the parties establishing a line between them different from that appearing on the face of the deeds. -
To sustain'the first ground:, the defendant must prove a continued, open, visible, and- exclusive possession, marked by definite boundaries. 1 Mass. Rep. 483, 488, Prop'rs of Kennebeck Purchase vs. Call; 4 Mass. 416, Same vs. Springer; 2 Green. 242, Little vs. Libby; 1 Johns. R. 158, Brandt vs. Ogden; 10 Johns 477, Doe vs. Campbell, It is not sufficient that the defendant may have had actual possession, for -possession is presumed, to be -in sub.oi-.dination to the title of the legal owner, until the contrary is
In 2 Johns. R. 230, Jackson vs. Schoonmaker, it was held that making what is called a possession fence, by felling and lapping trees one upon another round the land, was insufficient to show an adverse possession. Chief-justice Kent there said — “ This mode of taking possession is too loose and equivocal. There must be a real and substantial enclosure, an actual occupancy, a possessio pedis, which is definite, positive and notorious, to constitute an adverse possession, when that is the only defence, and is to countervail a legal title.” And this doctrine is recognized 7 Wendell 65, Jackson vs. Warford.
It is very clear, that the evidence offered by the defendant did not prove an adverse possession along the part of the line in dispute between the parties. The only fence kept up between them was a brush fence ; and although the parties seem to have cut wood from the land on their respective sides oí the fence — and there is no evidence that either ever cut upon the side occupied by the other — still this fence must have been kept up merely for the convenience of the parties; for the evidence shows that it was not attempted to be kept precisely in the same place, but varied from time to time ; and the defendant’s counsel admits that should we determine that the line between the parties must be established according to this fence, it would then be difficult to show where the line is in fact. The fence could not have been considered by either of the parties as marking the extent of their rights. Varying from time to time, as it did, it was not a definite boundary, nor did it mark an exclusive possession.
But the defendant contends that the line should be run straight from the fence on the west to the stone wall. There
Nor can the fact that the parties have uniformly claimed up to the log fence on the west, and to the wall on the east, have airy operation whatever in establishing an adverse possession upon the tract now in controversy. The existence of those fences may well establish an adverse possession, on the part of the defendant, along those parts of the line where they are situated. They seem to have existed for about forty years : and the defendant’s grantor has uniformly held and cultivated up to them, and the plaintiff and the defendant’s grantor many years since expressly recognized the log fence, on the westerly end of the line, as being the true boundary of their possessions in that part. But the defendant having no paper title which covers the tract now in dispute, those fences have no tendency to prove any adverse possession beyond the places of their existence. Because the defendant has had adverse possession in one place along the line, that furnishes no evidence of adverse possession at another point on the line, where he has had no possession in fact, and no color of title.
The difficulty, suggested by the defendant’s counsel, of connecting the fences, if the defendant does not prevail, is imaginary.
There seems to be nothing to prevent the plaintiff from claiming to the line given by his deed, easterly of the wall, through the woods. There has been no fence in that quarter, nor any actual possession, or any thing to indicate that the parties have ever claimed any line other than that appearing by the deeds to be the true line between them. If this
The only other question is, whether the case furnishes evidence that the line, along the place in controversy, has been established by the agreement of .the parties. 6 N. H. R. 107, Sawyer vs. Fellows; 7 Cowen 761, Rockwell vs. Adams.
If -the line along the place in dispute was the whole line between the parties, this question could not arise. The evidence of the manner in which the brush fence has been maintained, would, standing alone,-be wholly insufficient .to sustain any such position. But this being only apart of the dividing line between the parties; the evidence respecting the establishment of the line easterly and westerly of the place now in controversy has some tendency, with the other evidence, to show.an agreement between the plaintiff and the defendant’s grantor to establish the line contended for by the defendant. The log fence westerly, and the wall easterly, seem to be well established as marking the divisional line, at those places, bat neither are on what appears to be the true line by the deeds. They are on a line with each other, and have been connected together by the brush fence for about forty years • and although this fence has not been on a straight line between them, yet as it was evidently intend-, ed for temporary convenience, and as there is no evidence that the plaintiff until recently claimed to the line he now sets iip, the evidence in the case might be submitted to a
New'iria-l granted.