Bellows v. Jewell

60 N.H. 420

• Court: Supreme Court of New Hampshire
• Decided: December 5, 1880
• Status: Published

Opinion

ClAiut, J.

Upon the facts stated, Copp has a valid title to lot 6 by adverse possession. The entry and division of the land into lots by Pinkham shows him in possession, claiming title under his grant, prior to the conveyance to Copp in 1827; and the deed from Pipkham to Copp gave Copp color of title, although Pinkham’s possession was under color of title merely. Cobleigh v. Young, 15 N. H. 493. Copp’s entry under the deed gave him constructive possession of the whole of lot 6 (Bailey v. Carleton, 12 N. H. 9, Melcher v. Flanders, 40 N. H. 139), and his possession was under color of title, although his deed was not recorded until 3855. Minot v. Brooks, 16 N. H. 374; Newmarket Mfg. Co. v. Pender gast, 24 N. H. 54, 63: Under this deed twenty years’ continued possession gave Copp a valid title to lot 6. Grant v. Fowler, 39 N. H. 101; Farrar v. Fessenden, ib. 269. But the deed was not color of title beyond lot 6, which it purported to convey, and Copp acquired no title by adverse possession to the land situated westerly of lot 6. He had no constructive possession of it under his deed, and no continued, open, adverse possession for twenty years is shown. The running of lines and marking of corners forty-two years ago might, perhaps, be a sufficient possession against one showing no title, but it is not such an adverse possession as will bar the right of the plaintiff, who shows a prior title. Woods v. Banks, 14 N. H. 101; Hoag v. Wallace, 28 N. H. 547.

The remaining question is, whether lot 6, as described in the Pinkham deed, embraces any land east of Peabody river. The tract of land which the deed purports to convey is described as “ situated on the Pinkham road, and designated as lot No. 6 on the westerly side of Peabody river, to run 160 rods each side of the road where it now runs, and wide enough to contain 100 acres.” In point of fact, the average distance of Peabody river easterly from the Pinkham road is forty-two rods. Evidence of adverse possession of land is to be construed strictly. Campbell v. Campbell, 13 N. H. 483; Hale v. Glidden, 10 N. H. 397, 402; Riley v. Jameson, 3 N. H. 23, 26. Color of title is allowed to give a constructive possession beyond the actual occupation, for the reason that the colorable title is notice of the extent of the claim of the party holding under it. In this case there is nothing on the face of the deed to indicate any claim to land easterly of Peabody river, and the deed cannot operate to give color of title or constructive possession to any land east of the river.

According to the terms of the- report, $35 should be added to the amount of damages found by the referee for the timber removed from the land east of Peabody river, and there should be

Judgment for the plaintiff.

Stanley, J., did not sit: the others concurred.