Clendaniel v. Bennett

Superior Court of Delaware

Clendaniel v. Bennett

86 A. 313, 27 Del. 140, 4 Boyce 140, 1913 Del. LEXIS 26

CourtSuperior Court of Delaware

DecidedFebruary 12, 1913

StatusPublished

Cited by1 cases

This text of 86 A. 313 (Clendaniel v. Bennett) is published on Counsel Stack Legal Research, covering Superior Court of Delaware primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Clendaniel v. Bennett, 86 A. 313, 27 Del. 140, 4 Boyce 140, 1913 Del. LEXIS 26 (Del. Ct. App. 1913).

Pincite

Opinion

Boyce, J.,

delivering the opinion of the court:

[1] It is necessary to prove possession in order to maintain [142]*142in dispute, in this action, is unimportant if unaccompanied by an actual possession at the time of the alleged trespass. Clark v. Hill, 1 Harr. 335.

[2] The plaintiff is in possession of her farm, lying on the public road, shown on the plot in evidence, to the north line of said road. The deed for her farm describes the line between it and the Bennett farm as being on the “north side” of said road. Contention is made for the defendant that the “north side” of said road means the “north edge” thereof, making the latter the division line between the two farms. The plaintiff contends that said line extends beyond the north edge of the road to the cleared land of the Bennett farm, embracing a strip of woodland lying between the road and the line of the Bennett land.

It is this strip of woodland which represents the land in dispute.

Besides the paper title shown, the acts of possession relied upon by the plaintiff are that some years ago Bennett was about to cut timber on the disputed premises and the husband of the plaintiff ordered him off and forbade his cutting any of the timber; that on two occasions a few loads of dirt were hauled from the northerly side of the road for filling in around plaintiff’s carriage house; and that a son of the plaintiff, in the lifetime of his father, cut some rat poles on the locus in quo, apparently without the knowledge or order of the father.

It is shown that Bennett some twelve years ago without let or hindrance of the plaintiff, or her husband, the then owner of the farm, erected a wire fence between his cleared land and the northerly side of said road for the purpose of pasturing, and that the fence was thereafter maintained for said purpose to, and since, the time of the alleged trespass which was committed on that portion of the said strip of woodland lying between said fence and the cleared land of Bennett, who was, ac the time, by reason of said fence, in possession thereof which has not been divested by any acts of occupancy shown on the part of the plaintiff.

There is, in this case, no question of mixed possession, or joint occupancy.

The plaintiff having failed to show any actual possession, she cannot have a recovery in this action, and a nonsuit is ordered.

Free access — add to your briefcase to read the full text and ask questions with AI

Boyce, J.,

delivering the opinion of the court:

[1] It is necessary to prove possession in order to maintain [142]*142in dispute, in this action, is unimportant if unaccompanied by an actual possession at the time of the alleged trespass. Clark v. Hill, 1 Harr. 335.

[2] The plaintiff is in possession of her farm, lying on the public road, shown on the plot in evidence, to the north line of said road. The deed for her farm describes the line between it and the Bennett farm as being on the “north side” of said road. Contention is made for the defendant that the “north side” of said road means the “north edge” thereof, making the latter the division line between the two farms. The plaintiff contends that said line extends beyond the north edge of the road to the cleared land of the Bennett farm, embracing a strip of woodland lying between the road and the line of the Bennett land.

It is this strip of woodland which represents the land in dispute.

Besides the paper title shown, the acts of possession relied upon by the plaintiff are that some years ago Bennett was about to cut timber on the disputed premises and the husband of the plaintiff ordered him off and forbade his cutting any of the timber; that on two occasions a few loads of dirt were hauled from the northerly side of the road for filling in around plaintiff’s carriage house; and that a son of the plaintiff, in the lifetime of his father, cut some rat poles on the locus in quo, apparently without the knowledge or order of the father.

It is shown that Bennett some twelve years ago without let or hindrance of the plaintiff, or her husband, the then owner of the farm, erected a wire fence between his cleared land and the northerly side of said road for the purpose of pasturing, and that the fence was thereafter maintained for said purpose to, and since, the time of the alleged trespass which was committed on that portion of the said strip of woodland lying between said fence and the cleared land of Bennett, who was, ac the time, by reason of said fence, in possession thereof which has not been divested by any acts of occupancy shown on the part of the plaintiff.

There is, in this case, no question of mixed possession, or joint occupancy.

The plaintiff having failed to show any actual possession, she cannot have a recovery in this action, and a nonsuit is ordered.

Cite This Page — Counsel Stack

Bluebook (online)

86 A. 313, 27 Del. 140, 4 Boyce 140, 1913 Del. LEXIS 26, Counsel Stack Legal Research, https://law.counselstack.com/opinion/clendaniel-v-bennett-delsuperct-1913.

Opinion

Related

Cite This Page — Counsel Stack