116 Mass. 558 | Mass. | 1875
The tract of land which this suit concerns was originally owned by commoners. In 1723 it was divided among the proprietors by metes and bounds, and was thereafter held
The petitioners took by their deed, and can claim title to, only those parts of the larger tract which were held in severalty by Ephraim Brown. Their only possession, as stated above, is not inconsistent with, or exclusive of, the possession .and use of the premises by the respondent, for the purpose of pasturing cattle. There is now, as there has been for more than a hundred years, a mixed possession of persons owning in severalty but occupying in common. The statute provides that “ any person in possession of real property claiming an estate of freehold ” may bring his petition, if the respondent makes a claim adverse to the estate of the petitioner. Gen. Sts. c. 134, § 49. We think this contemplates an exclusive and adverse possession which works a disseisin of the respondent. Munroe v. Ward, 4 Allen, 150. The petitioners do not show any ouster of the respondent. There was no fencing or other occupation which would exclude him.
The real difficulty in this case is the difficulty of ascertaining the boundaries of the lots of the parties. Neither party claims any land included in the deeds of the other. Neither party has seen fit to assert any exclusive possession of the land claimed by him. There is no reason why the respondent rather than the petitioners should be compelled to bring a suit, and thus assume the burden of being able to fix definitely the disputed boundaries.
Exceptions sustained.