Gardner v. Gooch , 48 Me. 487 ( 1861 )

The opinion of the Court was drawn up by

May, J.

Trespass quare clausum, and, at the trial, before the introduction of any evidence relating to the acts of trespass, the defendant moved that the plaintiff be required to select some one of the three several lots described in his declaration, to which his proof of such acts should apply. This motion was very properly overruled. The Court could not legally have restricted the claim of the plaintiff to any particular lot. He had a right to prove his damages occasioned by the defendant, upon each and all the lots, as his writ alleged.

No objection appears to have been made by either party, at the trial, to any of the evidence offered and admitted. The argument of the counsel in defence, therefore, that some part of such evidence was inadmissible, because there was other and better evidence to be found upon the records of the original proprietors, as to the location and extent of the plaintiff’s lots, comes too late. The only questions now open to him are those which are raised upon the face of the exceptions.

There was evidence tending to show that the plaintiff had acquired title, either by deed or disseizin, to some part of the premises embraced within the deed, under which the defendant claims; and that the alleged acts of trespass were committed upon this part. Which party had the better title to it, in view of all the evidence in the case, was a question for the jury. The présiding Judge was requested by the counsel in defence to instruct the jury in regard to several matters of law. The first request was “ that the defendant, being in possession of lot No. 50, 2d division, under a recorded warranty deed, his possession is presumed by law to be coextensive with the grant described in his deed, unless they shall find by the evidence, that the plaintiff had the undisputed, open, notorious and exclusive adverse possession of some part of it for more than twenty years.” Such a possession, so continued, is equivalent to a title by grant. The legal proposition, therefore, which is contained in the request, is, that a grantee in possession of some part of the granted premises, under a recorded deed, is to be regarded as in possession of the whole, notwithstanding h"e is actually disseized of some portion of the premises by a third person in actual possession, unless the disseizor has continued his adverse possession long enough to acquire the title. The mere statement of such a proposition shows its absurdity. The rule of law is, that where a grantee is in possession of any part of the granted premises, under a recorded deed, he shall be deemed to be in possession of the whole, unless other possessions or facts show the contrary. Little v. Megquier, 2 Maine, 176. The presumption that one’s possession, under his recorded deed, is commensurate with his grant, is always overborne and repelled by an adverse possession, so long as it exists. The very idea of. a disseizin, whatever its duration, is an exclusion of the owner from possession just so far as it extends.

That part of the second requested instruction, which was not given in the precise words of the request, appears to have been so far given in the general instructions as to leave no ground of complaint. And so, in regard to the third request, the general instructions given Upon the point to which it refers, are more favorable to the defendant than the instruction sought. They plainly imply that the acts mentioned in the request, are alone insufficient, under' any circumstances, to constitute an adverse possession, as against the true owner; and this, whether he had knowledge of such acts or not. They clearly indicated to the jury that something more than all the acts contained in the request, was necessary to constitute such a possession. The fourth requested instruction was rightly withheld. There was nothing in the plaintiff’s deed from Ellis to specify the number of acres intended to be conveyed. The quantity of land depended upon the boundaries of the plaintiff’s lots as they were located ; and these boundaries did not in any degree depend upon any given or proved quantity of land. The fifth request simply calls upon the Court to define “ what constitutes an adverse possession as against the owner of the defendant’s lot,” and was sufficiently complied with.

In regard to the general instructions, so far as they relate to the law of disseizin, it is now urged in argument, that they wore erroneous, because the same rule is applied to meadow lands disconnected from any farm, as would be applied to a farm concerning which a disseizin is alleged. It is contended, that the statute which defines what shall constitute a possession and improvement of land, E. S. of 1841, c. 145, § 42, and of 1857, c. 104, § 38, is applicable only to farms. No such instruction was requested. That it was competent for the jury to look at the position of the land, the nature of the soil and its productions in connection with all the acts done upon it, in determining whether there was in fact a possession and improvement open, notorious, exclusive and comporting with the usual management and improvement of a farm by its owner, is not to be denied; and we doubt not that all these circumstances were urged upon the jury by the learned counsel in defence. The statute, however, applies to all land alike. There was, therefore, no error on the part of the Court in stating its provisions to the jury as law.

It is further said, that although the general instructions given may be sound law, when taken in the abstract, they become erroneous and delusive, when taken in connection with the facts existing in the case. It is the duty of the Court to give the law as it is, and of the jury, aided by the arguments of counsel, to apply the facts, as they shall find them, to the law. If the facts in this case required the application of any rule of'law which had not been given, it-was the business of the counsel to ask for the appropriate instruction, and, if refused, exceptions might be sustained.

The instructions which were given are in harmony with the law, and were appropriate to the facts as reported in the exceptions. In view of the authorities cited by the plaintiff, and many more that might be, as well as of those cited in defence, we perceive no error in regard to any instruction given or withheld. The result is, that the exceptions must he overruled. Judgment on the verdict.

Tenney, C. J., Rice, Appleton, Cutting and Kent JJ., concurred.