Hodges v. Eddy

38 Vt. 327

• Court: Supreme Court of Vermont
• Decided: November 15, 1865
• Status: Published

Opinion

The opinion of the court was delivered by

Poland, Ch. J.

The plaintiff and defendant are the owners of adjoining farms, and the title of each is conceded. The controversy between them relates wholly to the boundary of division line between their farms.

The strip of land lying between the two controverted lines is about nine rods wide at the west end, and runs to a point at the east end, where the two lines meet, and is over two hundred rods in length.

At the trial, both parties claimed that the land in controversy was embraced within their respective title deeds, and if the plaintiff had prevailed in establishing what he claimed in this respect, he would have been entitled to recover, for the defendant did not claim that he had occupied to the south line, to which he claimed, so as to have derived any title by possession to the land in dispute. But the plaintiff did claim, that if the strip of- land in controversy, was embraced within the defendant’s title deeds, that he and his predecessors in title had acquired a good title to it by adverse possession.

All the questions raised at the trial and brought here upon the exceptions, arise upon the plaintiff’s claim to hold the land in dispute by virtue of his adverse occupation, and they are to be considered the same as if the record title had been conceded to be in the defendant, or had been found in his favor by the jury.

The plaintiff claimed that he and his father, Silas W. Hodges, under whom he claimed title, had actually occupied up to the line, to which he now claims, for a period of much more than fifteen years ; that the division fence was upon that line ; that it had always been claimed by his father and himself to be the true division line ; and had been acquiesced in as such by the defendant and his predecessors. The plaintiff’s evidence tended to prove, that commencing at the point of divergence of the two lines, at the east end, and upon the division line as claimed by him, there were twenty-two rods of rail fence, then sixty-five rods of stone wall, then about thirty rods of pole fence, and the remainder of the distance to the west end of the line, being more than one hundred rods, a brush fence. The plaintiff claimed that the piece of stone wall was built as early as 1813, and was placed upon the line, which was agreed to by the plaintiff’s father and Hannibal Hodges, the former owner of the farm of the defendant ; that the thirty rods of pole fence was built prior to 1830, in place of an old log fence which stood five or six rods farther south, and that the brush fence was built as early as 1821.

The plaintiff’s testimony tended to prove that his father and himself had an actual possession of the land up to the line to which he claims, for a much longer period than fifteen years, and also that such line was acceded to and acquiesced in by the defendant, and all the former proprietors of his farm.

It does not appear that the defendant disputed the erection of the stone wall and the pole fence, at about the time the plaintiff claimed, but he attempted to prove that in 1836 the plaintiff’s father, and the defendant’s father, (who were then the owners of the respective farms,) agreed that the wall and fence were not on the true line, and that they should be removed and placed on the true line, when they rebuilt the fence.

. Under the charge of the court, on this part of the case, the jury must have found, either that no such agreement was made, or else that the plaintiff’s father had already acquired a title by adverse possession up to that line, which the jury were told would make such a verbal agreement inoperative to divest him of.

But the defendant denied that there had ever been any brush fence erected upon the western part of the plaintiff’s line ; that there was any brush fence there at all till after 1830 ; and then was built to protect some newly cleared lands on the defendant’s farm, without reference to any line ; that it had been from time to time removed by the defendant and his father as they extended their clearing, and was never treated as the division fence by the owner of either farm.

The western part of the plaintiff’s farm is uncleared land, and the only acts of possession claimed to have been done on that part of the land in dispute, were the tapping a few sugar trees four or five times, and occasionally getting wood and timber from it, and that mostly fallen trees.

In 1862 the defendant erected a fence upon the west end of the division line, as he claims it, for the distance of eighty rods, thereby enclosing the disputed territory for that distance with his farm, and this was the eviction complained of, so that the case requires a special examination of the rights of the parties, and the proper application of the rules of law to the facts in relation to this part of the line.

The principal question arises upon the charge of the court, in reference to the effect of the stone wall, in giving the plaintiff a constructive possession to the same line upon which the wall stood, for the residue of the distance.

The court charged the jury by the request of the plaintiff, “that if they should find the wall was so constructed, and so far extended toward the west end of the said farm owned by the said Silas W. Hodges, as clearly to indicate, or give notice to the public, and all concerned, that he, the said Silas W. Hodges, claimed to exercise exclusive dominion over the piece of land in controversy, this woould be evidence of a claim on his part sufficient to support a constructive possession by him over the piece of land in controversy.”

The court then proceeded to mention to the jury several considerations as to the force and effect of the indications afforded by the wall, as to what the plaintiff claimed beyond it, all very proper and judicious, provided the court were correct in the principal proposition.

In considering the correctness of this charge, it is proper first to ascertain what is meant by a constructive possession.

The phrase has come to be used in a very loose and indeterminate way, and perhaps judges have had quite as large a share in promoting inaccuracy in its use, as the less authoritative portion of the profession. We believe a correct definition of constructive possession is, a possession m law, without possession in fact.

What will give one a constructive possession of land, when he has not the actual possession ? It is universally held that the owner of land, who enters into and holds possession of a portion of the land covered by his deed, and claiming under his deed, is by construction, and by virtue of his claim under his deed, legally in possession of all that his deed covers, though he has not the actual possession of the whole. While he is thus in possession, no other person can gain or have a constructive possession of any part of his land, and he can be disseized in no other way than by an actual entry and occupation of another, and an actual occupation of any part of his land by one entering upon him cannot be extended beyond the portion occupied, by construction. There cannot be two constructive possessions of the same land at the same time.

There is but one mode in which the true owner of land can lose his constructive possession of his land covered by his deed, without being actually dispossessed. Where the owner agrees with an adjoining proprietor on a line of division between them, which is really within the true line, and withdraws all claim to the land lying beyond the agreed line, his constructive possession is limited to that, and the adjoining proprietor who claims to such line, has his possession extended by construction to the same line, and if such mutual claim and acquiescence is continued for the period of fifteen years, the title becomes fixed to that line upon both sides.

So where one enters upon an unoccupied lot under color of title, and actually occupies a part, claiming the whole, his actual possession is extended by construction to all that his deed covers, and if he continues such possession for fifteen years, he acquires a title not only to the part actually occupied, but to the whole lot. The term color of title, as it is used in the cases on this subject, means a deed or survey of the land, placed upon the public records of land titles, whereby notice is given to the true owner, and all the world, that the occupant claims the title. And it is on the same principle that it is held that, occasional entries upon land, cutting timber, &c., which ordinarily would be mere acts of trespass in a stranger, when done by one having color of title, are considered as acts of possession, because the true owner of the land has notice upon the public records that the person committing such acts claims a title to the land.

In the earlier decisions in this country it was held, (and I suppose the law to be held so still in New York and many of the other states,) that one who entered upon land without color of title, had no constructive possession whatever; he could acquire no title by possession beyond his actual occupation, or possessio pedis, as it was termed.

But in this state a more liberal doctrine has long been maintained, and it is now settled, that where a person, without title, or color of title, enters upon a vacant lot, and actually occupies a portion of it, and the lot has a definite boundary, marked upon the land, such person by claiming to be the owner to the boundary lines of the lot, has a constructive possession of the whole, and will acquire a title to the whole by such partial occupation for fifteen years, and such entry and claim give him a good prior possession of the whole, which is a good title against all the world, except the true owner of the lot. See Crowell v. Beebe, 10 Vt. 33; Ralph v. Bayley, 11 Vt. 521.

It is not improper in this connection to allude to the case of Davis v. White, 27 Vt. 751, which has created some confusion in the well settled law of this subject, and the effect of actual and constructive possession. The principle enunciated in that case was, that a prior constructive possession must yield to a subsequent actual possession. So that by that case, if A. enters upon a lot and occupies a part, claiming title to the whole, so as to have constructive possession of the whole, and B. subsequently enters and takes actual possession*of that part not in the actual occupation of A., his right to the part thus taken possession of by him is better than that of A., and he cannot be expelled by A. The case was evidently decided upon some strange and sudden misapprehension, as no lawyer having the slightest knowledge of the subject, could have believed that to be the law, much less the very able and learned judges by whom the decision was made. The mistake was in not adding that the subsequent possession would prevail, if continued for fifteen years.

To apply these general views to the facts and charge in this case. The plaintiff claimed that he had actually occupied adversely up to the line he claimed, for more than fifteen years. The defendant claimed that on the western portion of the lot, where the defendant has now entered, that the plaintiff had never had any actual possession whatever.

The plaintiff claimed that the defendant and his predecessors had acquiesced in the line for the whole distance for more than fifteen years. The defendant claimed that as to the western portion of the plaintiff’s line, it had not been acquiesced in. The plaintiff was not satisfied to rest his case with the jury upon his having obtained a title by actual possession to his line, and so set up this theory of a constructive possession, to aid him, if he failed in making out the actual possession.

It was only in case of failure to establish the actual, that he needed the aid of a constructiva possession, and therefore the charge must be construed as if the jury found that the plaintiff had not established his title by actual occupation, so far as that was contradicted by the defendant’s evidence. All this part of the ease, as before stated, proceeds upon the theory that the defendant was the true owner of the land in dispute, and had only lost it by the adverse occupation of the plaintiff, or by his acquiescence in a mistaken and erroneous line. The defendant was in possession under his deed, and unless his constructive possession had been limited by his acquiescence in the erroneous line, (which his evidence tended to show had not been done,) he still had the constructive possession up to the true line, so far as it was -not in the actual possession of the plaintiff.

The defendant might have lost his constructive possession, and even his land, by acquiescence in the plaintiff’s line, but the charge on this point does not rest upon or make any reference to finding that the line extending west from the wall had been acquiesced in by the defendant, but wholly upon what the wall indicated as to the plaintiff’s claim to the land and line west of the wall.

The existence of this wall upon a part of the plaintiff’s line, and the occupation to it upon both sides, was an important piece of evidence, proper to be submitted to the jury, both in reference to the plaintiff’s claim where the line was, and also as to the acquiescence of the defendant in the line for the whole distance, but whatever the jury might find it indicated as to the plaintiff’s claim beyond, it would not give the plaintiff any constructive possession, by mere force of his claim; to any land covered by the defendant’s title, Whether the defendant had lost his constructive possession by acquis escenee was quite another question, and was made no element or condition to the constructive possession in the plaintiff, which the jury were put to find.

We are of. opinion, therefore, that the charge in this respect was not correct, and, that if the jury found all that they were told they might find from the indications afforded by the wall, as to what the plaintiff claimed, it would not give him any constructive possession.

The language of the charge is borrowed mainly from what was said by Judge Eedeield in Buck et al. v. Squires, 23 Vt. 498.

That case was very different from the present. The land in dispute was only a few feet in extent, and was almost enclosed by the defendant’s fence, and would be entirely, by extending his fence a little farther in the same direction. The defendant made no continuous use of the place in question, but his occupation of it was occasional and furtive. When Judge Eedeield says that the purpose and design of the defendant’s fence gave him a constructive possession, it is evident he meant no more than this, that such claim of ownership and dominion, as the fence indicated, in connection with his acts done upon it, gave him a sufficient actual possession.

In relation to the agreement made between the father of the plaintiff and the father of the defendant, in 1836, to remove the fence, and place it on the true line when they should rebuild it, the court told the jury that if such agreement was made, still if they also found that the plaintiff’s father, at any time before the making of such agreement, had fifteen years adverse possession up to the line the plaintiff now claims, he had acquired a good title to such line, and would not lose it by making such a verbal agreement.

The general correctness of such a charge is not denied. It appears from the case, however, that in 1819, Hannibal Hodges, the defendant’s predecessor in the title, conveyed to the plaintiff’s father by warranty deed, the narrow strip of land between their farms, extending the whole length of the present disputed line, and the plaintiff now claims that the north line of said “ eleven rod jog” is the north line of his farm, or else that he has acquired land still north of that jog strip by adverse possession.

The acceptance of that deed by the plaintiff’s father in. 1819, Was in law a concession that Hannibal Hodges was the owner of the piece so conveyed, and by accepting a deed of this strip of land off the edge of Hannibal Hodges’ farm, he precluded himself or his successors from claiming that they were then holding adverse possession to a boundary still farther upon the land of Hannibal Hodges.

The defendant now says that, as the jury were told that if they found that when said agreement was made in 1836, the plaintiff’s father had, at any times held adverse possession more than fifteen years, &c., then the agreement was inoperative ; they might have found all or part of such adverse use prior to the date of this deed in 1819.

For myself I do not think the question is properly presented or raised by the exceptions. No reference was made to the effect of this deed on the possession of the plaintiff as the case shows, nor was the attention of the court in any way called to it, or any ruling made upon it. Still more, there was ample time for fifteen years adverse possession between the date of that deed, and the time of said alleged agreement. But some members of the court think the question is presented, and that the instruction in the form it was given was erroneous. I quite agree that if the court, did allow the plaintiff the benefit of any adverse possession prior to the date of that deed in 1819, it was wrong, and the defendant would have had a good exception if he had taken it. It is not material which is right as to whether the question is now properly before us? as the case is to go back for another trial.

Judgment reversed and new trial granted.