Jackson ex dem. Butler v. Widger

7 Cow. 722

Opinion

* Curia, per Savage, Ch. J.

The defendant was entitled to go” to the Farr clearing, though the distance might exceed the 38 chains and 50 links given by the deed. This was so expressly settled in Jackson v. Camp, (1 Cowen, 612.) And though, strictly, the defendant should have been bounded on the south of the Farr clearing, yet, as the surveyor of Thomas Butler, who must be considered his 'agent for the purpose, settled the line where it now is, probably to make it straight, I think, after 20 years acquiescence, the plaintiff is too late to disturb the location, even if he could have done so at an earlier period. Jackson v. Ogden, (7 John. 238.)

Footnotes

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[1]

In my opinion, the defendant is entitled to judgment.

Judgment for the defendant.

Mere neglect of the owner, for any length of time, will not raise the presumption; there being no adverse possession against him. (Schauber v. Jackson, ex dem. Rogert, 2 Wend. 13. Doe, ex dem. Marston v. Butler, 3 Wend. 149.) There being no adverse possession, the heirs of the true owner recovered even against an escheat grant, though they or their ancestors had made no claim for 100 years. (Hall v. Gitting's lessee, 2 Har. & John. 112, 125, 126.) So where the one in possession has no title, and asserts none. (Ricard v. Williams, 7 Wheat. 59, 109, et seq.) And accordingly, where one has title to the whole, and possession of part, this is a possession of the whole; and no presumption of a grant can therefore arise in favor of another who is tortiously in possession of the same land concurrently with the true owner. (Hammond v. Ridgley, 5 Harr. & John. 215, 264, 265.) The possession must oe positively and unequivocally adverse. Even possession and receiving rents, offers to sell, or partial sales effected, may as well be acts of a tortious possessor, or of an agent, as of one claiming title under the real owner. (Delancey's lessee v. M'Keen, 1 Wash. C. C. R. 354, 359, 360, et seq.;) and distance and disabilities in the owner are to be considered and allowed; (id.;) and an adverse character in the possession may be done away by surrender, acknowledgment of the owner’s title, or by a discontinuance of the possession, &c. (Holtzapple's lessee v. Phillibaum, 4 Wash. C. C. Rep. 356, 363.) Where a widow held a parcel of her husband’s estate for nearly 30 years, under a deed in fee from -one of the heirs; held, in an action by another of the heirs for an undivided portion of the same land, it could not be presumed that she claimed as tenant in dower, so as to raise the presumption from an acquiescence of the demandant in so long possession, that there was a regular assignment of dower. (Hale v. The Inh. of Portland, 4 N. H. Rep. 77. A title to an undivided portion of land cannot, unless in a very strong case, be acquired by concurrent possession, or acts of ownership, while the real owner is in possession. (Waldron, v. Tattle, 4 N. H. Rep. 371.) So of a trustee as against his cestui que trust, as will be seen post, not 301. (Per Nott, J., in Howard v. Aiken, 3 M’Cord, 468, S. P.) So of a vendee in possession under an agreement to convey; but not having paid the purchase money. (Richards v. M’Kie, 1 Harp. Ch. Rep. 184.) The court refused to found the presumption on a claim of constructive possession under a deed, the description in which did not clearly include the land. (Gibson v. Chappel, 1 Harp. Rep. 28.) Nor will a grant of land to a certain boundary, by one claiming beyond it, be received as ground-for a presumption that he had released all beyond, especially where he had since conveyed land lying beyond. (Jackson, ex dem. Van Schaick v. Vincent, 4 Wend. 633.) See also Palmer v. Hicks, 6 John. Rep. 133, 135; Per Robertson, J., in Fitzhugh v. Croghan, 2 J. J. Marsh. 436; and per Marshall, Ch. J., 7 Wheat. 546.