Soule v. Barlow, 48 Vt. 132

Soule v. Barlow

48 Vt. 132 | Vt. | 1873

The opinion of the court was delivered by

Peck, J.

The evidence offered on the part of the defence, to show that soon after Col. Bradley Barlow deeded lot 39, being the lot in question, to Andrew Bradley, Andrew Bradley and .Col. Barlow made a verbal exchange of lands, by which Col. Barlow took of Bradley, among other lands, lot No. 39, and Bradley took of Barlow three swamp lots further south, and that this exchange *141had been ever acquiesced in since, ought to have been admitted. The defendant being a legatee under the will of Ool. Barlow, who died Oct. 16, 1836, claims under Col. Barlow the lot in question, it having been in the settlement of that estate in the Probate Court, appraised as the property of that estate, and in the distribution set to the defendant by decree of the Probate Court, March 30, 1840. There was also evidence that the executor of Col. Barlow claimed the lot as the property of Col. Barlow’s estate. In connection with this evidence, and the evidence as to the defendant’s cutting timber on the lot in 1850, and almost every year since, claiming title to it ever after it was set to him by the decree of the Probate Court in 1840, it was competent for the defendant to prove that Ool. Barlow, under whom he claims, claimed to own the lot in his lifetime, and the ground oí his claim ; that is, the exchange by Col. Barlow of other swamp lots further south for this lot 39 ; more especially as a deed from Col. Barlow to Andrew Bradley, of this lot, dated Sept. 13, 1820, had been given in evidence by the plaintiff. The fact that Col. Barlow claimed to own the lot in question, and the ground of his claim, was as competent evidence as the fact that his executor claimed it as a part of the estate, an'd both were admissible as tending to give to the acts of the defendant done under the Col. Barlow title, or color of title, the character of acts of possession, tending to strengthen the evidence that they were done under a claim of right.

In connection with this evidence, the evidence offered by the defendant and excluded by the court, that in the settlement of Andrew Bradley’s estate, lot 39 was not appraised as part of his estate, and that the three swamp lots further south were appraised, is admissible as tending to show the agreement of exchange of lots was acquiesced in.

The court think that in that portion of the charge in which the jury were told, referring to the lot in question, that “ if they should find that it was fenced as the plaintiff’s evidence tended to show it was, that would be sufficient,” there was error. The jury might have understood from this, in connection with what immediately precedes it, that the court meant that such fencing *142was sufficient to constitute actual possession; but if they did not understand it in this sense, they would be very likely, at least, to understand by it that such fencing would have the same effect as the ordinary enclosing of land by fences for the purpose of occupancy, with the same presumption of possession and claim of ownership arising therefrom, and have the same effect in giving to occasional acts of cutting timber thereon the character of acts of possession. In either view, this part of the charge, unexplained and unqualified, would mislead the jury. In order for such fencing, under the circumstances, to avail the plaintiff even as evidence in making title or possession to this lot, it must have been kept up for the purpose of enclosing the lot in question as his own, and not merely as a more convenient mode of enclosing his farm which was conveyed to him by Lois Bradley. There is much in the case tending to show, and to indicate to a common observer, that the latter was the purpose. Lot 39 in dispute, and lot 40 lying north of and adjoining it, as appears by the exceptions and plan of the premises and adjoining lands referred to, are bounded on the east by the plaintiff’s farm deeded to him by Lois Bradley, extending the whole width of said farm one hundred rods; lots 39 and 40 being each about fifty rods long north and south, and each containing four acres, and always been known as swamp lots, and of little value except for the timber oh them, and are bounded on the west by a creek which is generally impassable by cattle, there being no necessity for a fence on the bank of the creek. As these lots contain but four acres each, they must be but about thirteen rods in width from the creek to the plaintiff’s farm conveyed to him by Lois Bradley. It appears that the only fencing of lot 39 on which the plaintiff relied, was that at the time he went into possession of tlie Bradley farm above mentioned, in 1822, swamp lots 39 and 40 wore enclosed by the fences which surrounded said farm on the north, south and cast sides of said farm, and by the creek aforesaid on the west side, and been so enclosed ever since. Thus it appears that the extension of the fence on the north side, and the fence on the south side of this Bradley farm, some thirteen rods beyond the western boundary of the farm through the width of the swamp *143lots to the creek, saved to the occupant of the Bradley farm the fencing of the west end of the farm, one hundred rods. This tends to show the fences were thus kept up merely for the purpose of fencing more conveniently and cheaply the Bradley farm. Again, it appears that swamp lot 40 was included within the same fences that included lot 89, and yet it appears by the plaintiff’s own' testimony that he only claims to have been in possession of that lot since about 1850, but now claims it by possession.

It cannot be assumed from the evidence, that the plaintiff commenced a possession of the lot prior to the time that the evidence tends to show that the defendant, by acts of possession under his color of title under the proceedings of the Probate Court, acquired possession., which being under color of title would extend by construction to the whole lot; and the jury, under the charge, may not have found that the plaintiff’s possession commenced earlier than fifteen years before the trespass complained of. This appears from the fact that the court told the jury that “ the plaintiff claims to have occupied this lot since 1822, and he is entitled to the benefit of any fifteen years in that period which is continuous; ” and that “ it was not necessary that he should have acquired it the first fifteen years; that he might let ,it lie vacant, and then commence to assert a claim to the land, and his fifteen years would commence from the time he commenced to claim and occupy the land.” The defendant’s evidence of acts of possession under his color and claim of title, goes back to 1850. Yet it is apparent from the whole tenor of the charge set forth in the exceptions as to the effect-of the defendant’s acts of possession, that the court assumed that the plaintiff, during that time, was in ’adverse possession, and that the defendant’s acts upon the lot were an intrusion upon the possession of the plaintiff. In one part of the charge, in answer to a particular request of the defendant to charge as to the effect, in gaining title, of the defendant’s continuous acts of cutting timber on the lot under his color of title and claim of ownership, as the defendant’s evidence tended to show, although the court seem to have left it to the jury to find whether the plaintiff had ever, acquired a perfect title, still the court assumes that at the time of the *144defendant’s entry and cutting timber from time to time, the plaintiff was occupying and claiming to own the land. The language of the court is: “ When a man is occupying and claiming to own a piece of land, as the evidence shows Soule was in this case, a party going on and taking off a stick of timber once in a while,” etc.; thus in the charge putting the defendant in the condition of an intruder upon an assumed existing prior possession in the plaintiff, without even accompanying this view of the case with instructions as to the force and effect of the defendant’s evidence of acts of possession under his color and claim of title, on the hypothesis of there having been no such prior existing possession in the plaintiff. In this general view of the charge, the court think there was error. It is true it is stated in the case that the court charged the jury in a manner not excepted to, as to the kind of occupancy and possession the defendant was required to make out, to get a title; .but this does not answer the objection, as it is not necessary that the defendant’s possession should have ripened into a perfect title in order to defeat the plaintiff’s action.

There are numerous other exceptions to particular isolated passages in the charge, which the court, in view of the fragmentary manner in which those portions of the charge are stated, has not passed upon; and -from this omission to notice them, no inference can be drawn in favor or against either party as to their validity.

Judgment reversed, and new trial granted.