117 Me. 326 | Me. | 1918
On report. An action of trover for the recovery of damages for the conversion of certain logs cut from the locus described below in the years 1909 and 1910. “It is admitted that the alleged conversion was of lumber cut upon the sixty acres lying next easterly of a one hundred acre lot located in the Southwestern portion of Benedicta or the west corner of lot No. 1, according to Caleb Leavitt’s plan.”
As the right to the logs depends upon the possession of the locus from which they were cut, the plaintiffs, to maintain the action, must show that, at the time of the alleged conversion, they had either actual or constructive possession of the premises. If they did not have the title, they must show actual possession; the gist of the action being the invasion of the plaintiff’s possession. This is familiar law. Thurston v. McMillan, 108 Maine, 67, 68; Stevens v. Gordon, 87 Maine, 564, 566, 567; III Wash., Real Prop., Sec. 1945.
The plaintiffs claim title and possession under a mortgage with full covenants of warranty given by Fayette Shaw and others to the Bishop of the Diocese of Portland. This deed of mortgage, in terms, includes the locus or sixty acre lot. The mortgage has been foreclosed and the title thereunder, by reason of certain assignments and other mesne conveyances, is in the plaintiffs. Such being the case the warranty deed and deraignment of title thereunder are prima facie evidence of title and seizure and entitle the plaintiffs to recover against a mere trespasser or against one who cannot prove better title or that the mortgagor had no title. Thurston v. McMillan, 108 Maine, 67, 71, 72; Smith v. Sawyer, 108 Maine, 485, 487; May v. Labbe, 112 Maine, 209, 210; Smith v. Booth Bros., etc., Co., 112 Maine, 297, 306; See also Chandler v. Wilson, 77 Maine, 76, 82.
The defendant shows no title by deed but claims title by adverse possession and that the sixty acre lot or locus was and is a part of a lot originally laid out as a one hundred and sixty acre lot, the other one hundred acres, constituting the remainder of such one hundred and sixty acre lot, lying westerly of the sixty acre lot. The evidence does not satisfy the court that the one hundred and sixty acres in question were laid out in one lot but rather that they constituted two lots; one of one hundred acres and another of sixty, or more, acres.
The evidence tends to show that the grandfather of defendant settled upon the one hundred acre lot in the southwest corner of Benedicta, cleared and cultivated about forty acres of land upon its westerly side, and that at his death in 1853, there had been built upon it a log house, a barn and other outbuildings, all of which had disappeared at the time the case was reported. The easterly fine of the one hundred acre lot does not appear to have been indicated or established upon the face .of the earth, nor do we find the contention of the defendant that the easterly fine .of the sixty acre lot was so established sustained by a preponderance of the evidence. Neither the one hundred acre lot- nor the sixty acre lot were enclosed by fences and both were wild and uncultivated lands, except the westerly forty acres of the former which are now partly grown up to trees or
Upon the 60 acre lot there is evidence of a witness, then ten years old, that in 1862 the father of defendant cut “quite a large amount of pine.” There is also evidence tending to prove that in 1878 the defendant, then a boy of fourteen, helped his father to haul cedar therefrom, the operation consuming a week’s time; that in 1890 the defendant sold the stumpage for bark from the whole of the 160 acres; that in 1895 the defendant sold the stumpage of juniper knees upon the whole 160 acres (but there is no evidence that any bark or knees were removed from the 60 acre lot, under these permits or licenses); that in 1902 the defendant cut cedar from the southeasterly corner of the 60 acre lot and thence westerly to the westerly line of the 100 acre lot, cutting along the south line of the town. Defendant testifies that in his occupation of the premises he always worked up to the east line of the sixty acre lot. These are the only acts done by the father and defendant upon the locus, relied upon by defendant in his counsel’s brief.
The burden of proof of title by adverse possession is upon him, who alleges it. Batchelder v. Robbins, 95 Maine, 59, 67; Brown v. King, 5 Met., 173, 180; Lawrence v. Doe, etc., 144 Ala., 524, 527. Assuming the acts done upon the so-called sixty acre lot to have been adverse (Alden v. Gilmore, 13 Maine, 178, 182; Morse v. Williams, 62 Maine, 445, 446;) and that all were open and notorious, we think there is a failure to show that continuity of possession or occupation which is required by the common law or which comports with the ordinary management of a farm. In the mind of the court they appear rather to be acts of trespass long separated in time and fugitive in nature. Rangeley v. Snowman, 115 Maine, 412, 416; See Little v. Megquier, 2 Maine, 176, 178; Tilton v. Hunter, 24 Maine, 29, 33, 34; Proprietors, etc., v. Laboree, 2 Maine, 275, 283; Worcester v. Lord, 56 Maine, 265, 269; Fleming v. Paper Co., 93 Maine, 110, 113;
The localities of the various acts of alleged occupation are not shown. .Equally barren is the case of evidence that any one or more of such acts were upon the same locality. See Proprietors of Kennebec Purchase v. Springer, 4 Mass., 416, 418.
The conclusion is that the defendant has not sustained the burden of proof imposed upon him.
Judgment for plaintiff for the sum of one hundred and twenty-five dollars, as agreed by the parties.