24 Me. 29 | Me. | 1844
The opinion of the Court was drawn up by
This is an action guare clausum. The acts set forth as constituting the trespass are not denied. Each
The defendants claim, first, under a deed of quitclaim, made to their father, whose heirs they are, in 1766, which they contend includes, within the boundaries therein given, the locus in quo; secondly, that the same is included in a deed made to them in 1815, by Messrs. Orr & Bailey, as agents of Massachusetts, of which Maine was then a part, in pursuance of certain resolves passed for quieting settlers, &c.; and thirdly, that they have acquired a. title by disseizin; or were, at any rate, so seized as to defeat the operatica of the deed .upon which the plaintiff must depend for the establishment of his title.
The deed of quitclaim, relied upon by the defendants, was of a tract of land extending from Da.marisco1.ta river, southeasterly, the south-easterly boundary being a straight line, extending one hundred and thirty rods. How far south-easterly such a line must be placed is not shown by any actual admeasurement laid down on the plan taken by order of Court. It cannot be known, therefore, there being no monuments recognized as showing the south-eastern bounrlary, that the locus in quo is included in that conveyance; and the defendants do not now claim by a straight line for their south-eastern boundary. This point in the defence therefore fails.
The deed of Messrs. Orr and Bailey is next to be considered. The description in that deed is, of “ two lots, numbered 138 and 139, in the western division of said town of Bristol, conformably to the plan taken by William M’Clintock, June 12th, 1815.” These lots are not laid down on the plan taken by order of Court, or on any plan to which we are referred in the bill of exceptions. Whether they covered the locus in quo we have not the means of ascertaining. The defence, therefore, upon this ground was not made oul.
We come now to the question of title by disseizin. The locus in quo, although it is not so expressly represented in the bill of exceptions, was obviously a forest; and in an uncultivated state. The lop and top fence, and the log fence, indicate this; and, if it had ever been under improvement, it would have been so represented. To constitute a disseizin, under-such circumstances, decisive acts, tending to a dispossession of him in whom the title might be, must be proved. The common law definitions of a disseizin are collected by Mr. Justice Wilde, in delivering the opinion 'of the Court in Bates v. Norcross, 14 Pick. 224. The one quoted from Lord Holt is, that “ a bare entry on another, without an expulsion, makes such a seizin only, that the law will adjudge him in possession, that has the right; but it will not work a disseizin or abatement without expulsion;” and the one from C. J. Parsons is, that “ to constitute an ouster of him who was seized, the disseizor must have the actual and exclusive occupation of the land, claiming to hold it against him who was seized; or he must actually turn him out of possession.” Mr. Justice Wilde,
By the statute of this Stale, however, commonly called the betterment law, it is provided, that, to constitute disseizin, “it shall not be necessary that such lands shall be surrounded with fences, or rendered inaccessible by water, but it shall be sufficient, if the possession and improvement are open and notorious, and comporting with the ordinary management of a farm, although that part of the same, which composes the woodland, belonging to such farm, and used therewith as a wood lot, shall not be inclosed.” By this enactment the conmmon law may be considered so far altered as that a wood lot, constituting a part of a farm, may be subject to a disseizin by the occupant of the farm, if used for the purpose of cutting fuel, and getting housebote and fcncebote therefrom, openly and notoriously, and in a manner comporting with the management of a farm. That the possession must still be open and notorious is not abrogated, but expressly retained.
Now what are the facts in the case at bar to bring it within those principles? The first is, that, in 1775, the ancestor of the defendants, being in possession of a tract of land, supposing the locus in quo to be a part of it, felled a lop and top fence across the land, afterwards claimed by a person, under
But it is said that in 1814 the defendants caused the land to be run out, as claimed by them, corresponding nearly with the log fence, and a plan to be made, &c. This however was an ex parte proceeding, of which the plaintiff had no knowledge, and therefore could not be concluded by it. This neither came within the common law or statute as constituting a disseizin.
Again, it is said, that the two deeds under which the defendants claim, were on record, and were constructive notice, that the defendants claimed the locus in quo. To this two answers may be given. The first is, that it does not appear, that, upon an accurate running out of the land, the locus would be embraced within its limits; the second is, that the
The seizin in this case might have been sufficient, on the part of the defendants, to enable them to maintain an action of trespass against one, who had no pretence of claim to the land, or to have authorized the plaintiff to have declared against them in a plea of land, as disseizors, if he had elected so to do; but by no means amounts to such an adverse possession as would, in law, ever have ripened into a title by disseizin; and therefore did not preclude the deed of Murdock, as guardian, from passing the fee to the plaintiff. The deed of Thomas M’Clure, therefore, was of no importance, and may be laid out of the case; and what was said by the Judge in his instructions to the jury, in reference to it, may be considered as immaterial, and as forming no ground of exceptions.
The argument of the counsel for the defendants, concerning a claim for betterments, was wholly irrelevant. The exceptions do not show that any such claim was ever made. The Judge, in his charge and ruling, does not appear to have noticed any thing of the kind.
Exceptions overruled.