Banton v. Herrick , 101 Me. 134 ( 1906 )

Emery, J.

This is a real action begun in 1902. The land demanded is a lot of 110 acres and is described as “Lot No. 32, north of the Board Kddy Hoad in La Grange according to the survey and plan of Jeddediah Herrick.” Formerly it was wild land all wooded except a few acres of open meadow land near the middle. The plaintiff showed a record title to the whole lot from the year 1832. The defendant also showed a record title to the whole lot, but only from the year 1868. By the record, therefore, the plaintiff showed the older and hence better title, but the defendant further interposed in defense the claim of title to the whole lot by adverse possession.

The court instructed the jury that, upon the evidence the defendant had acquired title to the meadow land part of the lot by occupation of the requisite character and duration, and directed a verdict for the defendant as to the meadow part of the lot. The plaintiff took no exceptions to this ruling, and hence we must consider so much as established in considering the present case.

As to the rest of the lot, the wooded part, there was no evidencie that it was separated from the meadow by any fences, ditches or other artificial means, or that there was any definite line of demarcation. It was undisputed that the entry of the defendant and his predecessors in title, and their occupation of such part of the lot as they actually occupied, were under a chain of deeds duly recorded in the proper registry and covering the whole lot, No. 32. There was evidence that the defendant and his predecessors had' made roads, cut wood, &o., over the most of it, and had paid taxes on the whole lot, all under claim of title for more than thirty years. There was no evidencie that the plaintiff, or any of his predecessors in title, had made any entry, paid any taxes, or exercised any ownership over any part of the lot for more than thirty years. The court ruled that as to this wooded part of the lot the evidence did not make out a title by adverse possession and directed a verdict for the plaintiff for the wooded part. To this ruling the defendant excepted.

Taken by itself, without reference to the occupation of the meadow part, the occupation of the wooded part was not sufficient to warrant a verdicit for the defendant; but we think the occupation of the lot cannot be so separated. The entry and occupation of the part were under a duly recorded deed of the whole lot. When an entry is made upon a lot of land and a part is occupied without any recorded claim of title, a title by advérse possession is limited to the part actually occupied, unless it be part of a farm; (R. S., ch. 106, sec. 38) but when a lot of land is entered upon and part of it occupied under a recorded deed of the whole lot, showing a claim of title by record to the whole lot, the effect of such entry and occupation is not limited to the part actually occupied, but extends over the whole lot in the absence of controlling circumstances to the contrary.

Under our law, the delivery and recording of a deed of conveyance, at least when followed by entry upon the land described in the deed, is the equivalent of the old common law livery of seisin. That livery of seisin extended over the whole parcel enfeoffed. In the same manner the seisin conferred by a deed .executed and recorded as required by our statutes extends over the whole parcel conveyed. If actual seisin of any material part under that constructive seisin of the whole parcel is of such character and duration as to ripen into a title by disseisin, that disseisin and title are of the whole parcel. It is to be assumed that the owner by the older record title knew of the entry and of the occupation of párt of his land by the stranger and that it was of the character to give title by disseisin. It is also to be assumed that he knew that such entry and occupation were under a seisin conferred by a recorded deed (if such was the fact,) and that he knew of the extent of that claim of seisin. He was chargeable with such notice as the public registry would give. Any record owner seeing any part of his land occupied by another in such manner as would give title by disseisin if sufficiently long continued, is bound to ascertain from the public registry whether such occupation is under a recorded claim of title, and also the extent of that claim. If, knowing all this, he makes no effort to interrupt such occupation or claim until after twenty years he has no cause of complaint that the law protects the occupant in his claim to the whole parcel.

This rule did not originate in the statute, R. S., ch. 106, sec. 38, extending the effect of actual occupation of improved land over uncultivated land or woodland when used as part of a farm. That statute extends the effect of entry and occupation and improvement by a mere disseisor not having any color of title by record. Without the statute, any title acquired by such disseisor would be limited to the part actually occupied. It would not extend over woodland, etc. With the statute, such disseisor in the open, notorious and exclusive possession of a farm may hold the woodland part of the farm as well as the farm home and fields. The rule as to the effect of entry and occupation of a part of a lot under a recorded deed of the whole does not depend on and is not affected by that statute. It (the rule) is not confined to farms.

The foregoing propositions are established by repeated decisions of this court, and in opinions fully reasoning them out and citing many authorities. A reference to some of them should be sufficient. See Little v. Megquier, 2 Maine, 176; Kennebec, Purchase v. Laboree, 2 Maine, 275; Noyes v. Dyer, 25 Maine, 468; Foxcroft v. Barnes, 29 Maine, 128; Prinam Free School v. Fisher, 34 Maine, 172 ; Brackett v. Persons Unknown, 53 Maine, 228. The case Walsh v. Wheelwright, 96 Maine, 174, is not in conflict, as in that case no part of the plaintiff’s land had been so occupied as to give title by disseisin.

Of course, in a given case there may be facts preventing the operation of (he rule cited, as where the record owner or others have also occupied the part sought to be brought under the constructive possession, or where parcels are not contiguous and it is sought to extend the occupation of one constructively over (he others, or where the tract Is so extensive and of such character and location as to make the ride inapplicable. In this case no such facts appear. The judgment, must be that the defendant’s exceptions are sustained.

Exceptions sustained.