Cheever v. Roberts , 82 N.H. 289 ( 1926 )

The trial court directed a verdict for the plaintiff upon the ground that "the defendant's deed from Mr. Reed, who had no title at all, and who never had possession, gives the defendant not even a color of title." The reason assigned for this ruling is clearly untenable. The demonstrated weakness of the defendant's paper title did not entitle the plaintiff to a verdict. Since the defendant was in possession it was necessary for the plaintiff to show a better right to possession in himself before he could be entitled to a verdict. Lear v. Durgin, 64 N.H. 618; Goulding v. Clarke, 34 N.H. 148; Atherton v. Johnson, 2 N.H. 31. But a wrong reason for a correct ruling will not destroy a verdict (Mason v. Railway, 79 N.H. 300; Nichols v. Fernald, ante 186), and it will, therefore, be necessary to consider whether the ruling of the trial court can be sustained on other grounds.

Upon a writ of entry a verdict for the plaintiff can properly be directed only if the evidence establishes the plaintiff's right to immediate possession so conclusively that reasonable men could not differ regarding it. But since this is purely a possessory action, like ejectment, which it superseded (Woodbury v. Woodbury, 47 N.H. 11, 23), it is not necessary that the plaintiff show a clear legal title in order to succeed. If his right to possession is conclusively established, a verdict may be directed, as in Maxfield v. Lumber Co., 74 N.H. 158.

1. Whatever may be thought of the plaintiff's testimony that he had "cut away dead timber" and "filled in marshy places," there is no conflict in the testimony as to the building of the causeway from Duck Island to the island in dispute. This was an unequivocal and continuing act of ownership over the latter. The existence of the causeway unmistakably evidenced the plaintiff's exercise of dominion over both islands. It was in design and in effect a physical annexation of the smaller island to the larger one. Just as the defendant in Little v. Downing, 37 N.H. 355, extended the area of his actual occupancy by successive clearings of the woodland, and as the defendant in the case of Moore v. Hodgdon, 18 N.H. 144, extended the area of his possession by laying the foundations of a building, so here the plaintiff increased the extent of the territory under his actual and immediate dominion by making a physical connection, above water, of the small island to Duck Island. It was the plaintiff's purpose "to consolidate the property" and he effectually accomplished that design.

It is argued by the defendant that an uninformed observer might regard this structure as a breakwater, designed to improve the harbor of Duck Island, rather than as a causeway, designed for the purpose of passage from one island to the other. Conceding this to be true, it has no bearing upon the point now under consideration. The name given to a structure is immaterial, if in building it the owner actually exercises dominion over the land upon which it stands. No question of notice to other claimants is involved in this proceeding. The argument seems rather to have reference to the position taken in the defendant's brief, but abandoned at the oral argument, that, in order to sustain a writ of entry, the plaintiff must prove the same kind of open, visible possession which would be necessary to support a claim of title by adverse possession. This, of course, is not the law. The plaintiff in such a case is required only to show seizin in himself. "Possession for any length of time, however short, is sufficient evidence of title against one who shows no better right. But to establish against the owner a title by possession, an open, visible, continuous and exclusive adverse possession for the period of twenty years must be shown." Cushing v. Miller, 62 N.H. 517, 525. This distinction was early pointed out by Richardson, C.J. in Lund v. Parker, 3 N.H. 49; and has repeatedly been recognized in subsequent cases. Straw v. Jones, 9 N.H. 400; Woods v. Banks, 14 N.H. 101; Moor v. Campbell,15 N.H. 208; Wallace v. Goodall, 18 N.H. 439; Berry v. Garland,26 N.H. 473; Bassett v. Company, 28 N.H. 438; Barstow v. Sprague,40 N.H. 27; Graves v. Company, 44 N.H. 462; Wells v. Company, 48 N.H. 491.

Since it conclusively appears that the plaintiff had actual possession of the island in question at the time of the defendant's wrongful entry, it follows that a verdict was properly directed in his favor.

2. Defendant argues that the jury might have found that the plaintiff had abandoned any possession which he ever had of the island in question. No evidence to justify such a finding was pointed out to the court and none has been discovered in the record. It is true that the plaintiff, being a non-resident, visited his property only at considerable intervals, but it was not necessary that he do more in order to maintain his possession. "A state of things being shown to exist is presumed to continue until evidence to the contrary is shown." Boynton v. Hodgdon, 59 N.H. 247; Cobleigh v. Young, 15 N.H. 493.

In Wallace v. Goodall, 18 N.H. 439, where it was suggested that the plaintiff's grantor had abandoned his possession, the court said, "He was not bound in order to be enabled to transfer a possession to retain an actual pedis possessionem, for the possession that he had acquired by the entry continued in contemplation of law until there was an ouster, by force of some hostile entry."

Exceptions overruled.

All concurred.