Jackson ex dem. Gilliland v. Woodruff

1 Cow. 276

Opinion

Woodworth, J.

The premises in question are included within the bounds of a patent granted in 1765, to John Friswell. William Gilliland, one of the lessors, deduced a title, under Friswell, to one fourth part. It was contended, on behalf of the .defendants, that, in 1787, John Bleecker, who. claimed Stewart’s and FriswelPs Patents, ran the out-lines, and that his survey did not include the premises ; that .Gilliland had recognized the line of Bleecker, and held under him, and was, therefore, concluded by it. Cochran, who accompanied Bleecker in the survey, says the lines would not include the defendants’ possession. ThaiBleecker made a mistake in tracing the lines, and that the patent extended considerably farther west and north, is proved, not only by the acts of the proprietors of Plattsburgh Patent, in laying out their lands, which are bounded on Friswell, but, also, by the recent survey of Keese, which was not controverted at the trial. Admitting Bleecker to have been the proprietor, the defendants cannot avail themselves of the mistake. The evidence of Gilliand’s holding under Bleecker, is very loose and unsatisfactory. Keese, the only witness who testified as to that fact, says that , he heard Gilliland say something about holding under him. In 1799, Wm. Brown applied to purchase. Gilliland agreed to let him have a farm next south of John Brown’s, who was to have one adjoining the north line of FriswelPs Patent. Gilliland stated, that Bleecker had run out the patents ; that they would find his north line ; and directed the farms to be laid out accordingly. They did so, and have occupied and improved, according to the Bleecker line, to the present time. It is evident, Gilliland intended to bound the farm of Brown on the true north line ; for to that he refers. As Bleecker had surveyed the out-lines, there does not appear to have been, at that time, any cause for doubting its correctness, I-fe, accordingly, directed Brown to be governed by it. If it be conceded that Gilliland held under Bleecker, upon what principle can strangers, without title, and holding adversely, be permitted to avail themselves pf a manifest mistake, or derive benefit from acts done by the plaintiff, under a misapprehension of his right ? The line was not run to quiet adjoining possessions—the defendants’ possession commenced long after. Neither was it run to settle the fine between Friswell and Plattsburgh. It is true, the proprietors of the latter patent were bounded on the former; but they had, previous to Bleecker1 s survey, ascertained the true line, (which corresponds with the one set up by the plaintiff) and located and divided their patent. Tlie unfounded claim, of a gore between the two patents, was Vet up long after, and not until 1794. It was then asserted with caution, and cpnveyed by a quit-claim deed. In whatever point of view the survey of Bleecker and the acts pf Gilliland are considered, they interpose no barrier against the plaintiff’s title.

The remaining question is—have the defendants made out an adverse possession ? The actual occupation of thp premises, by the defendants, is less than twenty years, as appears by the testimony of Winchell. He says that Moses Soper had cleared about two acres, not including the premises, at Salmon River Village, in 1797 ; that he, and Nathaniel Platt, claimed the whole property, while it was in woods. The validity of this claim will next be considered.

In September, 1794, Z. Platt executed a quit-claim deed to, Nathaniel Platt, for 783 acres of land, purporting to convey, thereby, lands lying between the east and south lines of allotted lands in Plattsburgh, and the line of Friswell1 s Patent. On examining the boundaries, and the map annexed to the case, it will be found not to include any land ; for there is no gore between the two patents. The description follows : “ Beginning at the distance of 7 chains, 8 links, north from the south east corner of lot No. 99, in the second .division of Plattsburgh ; thence east, 3? chains and, dQi links, to John FriswelPs patent.” Now, as it has been shewn, that FriswelPs Patent joins on Plattsburgh, the line cannot be extended easterly. If it was so extended, it would run on lands included in that patent, which is not admissible, under the words of the deed. The next course is to the north-west corner of the patent, which must be understood the true north-west corner of Friswell, as proved by the .plaintiffs ; thence east, in the east bounds of FriswelPs Patent, until the north line, to the lotted land in Plattsburgh, will include 783 acres, between that line and lot No. 101, in the second division of Plattsburgh. By tracing these lines, on the map, it will be seen, that a line, only, is given. No land is included : consequently, the deed is a nullity, inasmuch as nothing is granted, The question, then, is, whether a claim of title, under such an instrument, and an actual occupancy of part, can constitute a good adverse possession, beyond the parcel so occupied.

It is well settled, that a continued possession, for 20 years, under pretence or claim of right, ripens into a right of possession, which will toll an entry. It has never been consid? ered necessary, to constitute an adverse possession, that there should be a rightful title. (Jackson v. Wheat, 18 John. 44. Smith, v. Lorrilard, 10 John. 356. Smith v. Burtis, 9 John. 180. 13 John. 120. 2 Caines, 83.) The party who relies on an adverse possession, must, in the language of Kent, Chief Justice, in Jackson v. Shoemaker, (2 John. 234.) show “ a substantial inclosure, an actual occupancy, a pedis possessio, which is definite, positive and notorious, when that is the only defence to countervail a legal title :” and in Doe v. Campbell, (10 John. 477) it is said, “ adverse possession must be marked by definite boundaries, and be regularly continued down, to render it availing.” (1 John. 156.) There is no doubt, that actual occupancy, and a claim of title, whether such claim be by deed or otherwise, constitute a .valid adverse possession, to that extent. But, when a party claims to hold, adversely, a lot of land, by proving actual occupancy of a part only, his claim must be under a deed or paper title. This distinction has been uniformly recognized, and acted upon in this Court. It is on this latter ground, the defendants must rest, if their possession' can avaq_ Their defence is, that Z. Platt, in 1794, conveyed 783 acres to JV. Platt, including the premises ; that the first improvement was made in 1794, under Platt, being a small parcel, not exceeding 2 acres, which, together with the premises in question, afterwards taken under him, have been continued to the time of commencing this action. This proof does not make out an adverse possession to the premises. Colour of title, under a deed, and occupancy of part, is sufficient proof as to a single lot; yet it follows, from the doctrine laid down, that the deed, or paper title, under which the claim is made, must, in the description, include the premises. If the title is bad, it is of no moment; but, if no lands are described, nothing can pass. The deed is a nullity, and never can lay the foundation of a good adverse possession, beyond the actual improvement. There is no evidence here, to shew how far PlatPs claim extended, unless resort is had to the deed. Boundaries, therefore, including the premises, were indispensable, in order to give this defence the semblance of plausibility. The defendants stand on the same ground as if no deed had been produced ; and, then, the possession cannot extend beyond the place actually occupied.

In Jackson, ex dem. Dervient, v. Loyd, decided October term, 1820, but not reported, it appeared that the defendant had a deed for lot No. 4, but took possession of lot No. 5, adjoining, believing it to be his lot, and claiming it as such. It was held, that the defendant could not establish an adverse possession, to the whole lot, by the actual improvement of a part, because no part of No. 5 was included in the deed.

But, if the deed had been. perfect in the description, and included 783 acres of FriswelPs Patent, the occupancy of a part would not make out an adverse possession to the whole quantity conveyed. The doctrine of adverse possession, applied to a farm, or single lot of land, is, in itself, resaonable and just. In the first place, the quantity of land is small. Possessions, thus taken, under a claim of .title, are, generally, for the purpose of cultivation and permanent improvement. It is, generally, necessary to reserve- a part for wood land. Good husbandry forbids the actual improvement of the whole. The possessions are, usually, in the neighbourhood of others: the boundaries are marked and defined. Frequent acts of ownership, in parts not cultivated, give notoriety to the possession. Under such circumstances, there is but little danger that a possession of twenty years will be matured against the right owner; if it occasionally happens, it will arise from a want of vigilance and care, in him who has title. It is believed, that no well founded complaint can be urged against the operation of the principle ; but the attempt to apply the same rule to cases where a large tract is conveyed, would be mischievous indeed. Suppose a patent granted to A, for 2000 acres; JB, without title, conveys 1000 of the tract to C, who enters finder the deed, claiming title, and improves one acre only; this inconsiderable improvement may not be known to the proprietor, or if known, is disregarded for twenty years. Could it be gravely urged, that here was a good adverse possession to the one thousand acres ? If it kould, I perceive no reason why the deed from B to C might not include the whole patent, and after the lapse of twenty years, equally divest the patentee’s title to the whole ; for there would exist an actual possession of one acre, with a claim of title to all the land comprised in the patent. No such doctrine was ever intended to be sanctioned by the Court. It may, therefore, be safely affirmed, that a small possession, taken under the deed to N. Platt, cannot, under any circumstances, be a valid possession of the whole 783 acres, but is limited to the parcel improved. If the doctrine contended for, prevails, it' would sanction this manifest absurdity, that a possession under PlatPs deed, which conveyed no title, would, as to its legal effect, be more beneficial, than a possession taken under the proprietors of FriswelPs Patent, where there is not only title, but a good constructive possession, in consequence of the grant, and actual occupancy and improvement of a part. It cannot be useful to pursue the subject farther.

I am of opinion that the plaintiff is entitled to judgment, for an undivided fourth part of the premises.

Sutherland, J.

It is perfectly clear, from the evidencié * m the case, that the true location of the Friswell Patent¿ under which the plaintiff claims title, includes the premises in question. He is, therefore, entitled to recover, unless he is concluded by the survey of Bleecker, made in 1787, or by an adverse possession of twenty years in the defendants, or in them and those through whom their title is derived. Both FriswelPs and StewarPs Patents were granted in Í765. The Plattsburgh Patent, under which the defendants claim, was granted in 1784, and was bounded on the west and north lines of FriswelPs Patent: and in the allotment of Plattsburgh Patent, made by the proprietors, in 1787, all the lots bordering upon FriswelPs Patent, were located upon the lines which the plaintiff sets up as the division lines between the two patents. This leaves the premises in question within FriswelPs Patent. The recognition of the division lines between the patents, by the proprietors of the Plattsburgh Patent, are as binding upon the defendants, as are the survey and conveyances made by Bleecker <$• Gilliland, upon the plaintiff. But, in truth, neither party are concluded; ánd what have been shewn to be the true division lines must prevail, unless thé right of the plaintiff has been barred by* án advérse possession.

In 1794, Zepheniah Platt, the original proprietor of Plattsburgh Patent, made a conveyance to Nathaniel Platt, of seven hundred and eighty three and a half acres, particularly described in the conveyance, and which was unquestionably intended to émbrace. the premises in question. This conveyance was made in good faith on the part of Mr. Platt, upon the supposition, that the survey of Bleecker gave the trué north and west lines of FriswelPs Patent; for, in' that evént, the' land intended to be conveyed would have belonged to thé Plattsburgh Patent. Under this conveyance, the grantee, by his agent, immediately entered, and made improvements upon a part of the land conveyed. But it appears from the testimony of Martin Winchell, a witness on the part of the defendant, that the aeré called the Fair-' man place, and the half acre adjoining it on the north, being the premises for which the suit was brought, were not clear». fed—-the first parcel until 1799, and the one half acre, until Í801, or 1802. This suit was commenced in May Term, 1818. The defendant, therefore, failed in establishing an adverse possession óf twenty years, unless the small improvement made bétween 1794 and 1797, at what is now called the Salmon River Village, is to be considered, constructively, a possession of the premises in question, and every other part of the tract conveyed by thédeedof 1794»

Upon this point, it is contended by the plaintiff, 1. That the deed from Zephaniah to Nathaniel Platt, contained a, void description, embracing no land whatever ; that the possession alleged to have been taken under it, was, therefore, a mere naked profession, without colour of title, which could never ripen into a right beyond the extent of actual improvement; or, 2. That admitting the description in the deed to cover the whole tract intended by it, thereby giving; 'colour to the claim of title, by virtue of an adverse possession to that extent; even, in the latter case, the claim must-be confined to the limits actually enclosed and improved under it.

I do not think it necessary to discuss the first objection, y-because the second is, in my opinion, sufficient to defeat the-claim of the defendants.. There is no proof in the case of an attempt on the part of Nathaniel Platt, or of those who claim under him, to designate the land embraced in his conveyance by a possession fence, or even a line of marked trees. This is a defence, for the support of which strict proof has always been required. In Jackson v. Schoonmaker, (2 John. Rep. 230) an inclosure, by a possession fence, but round the premises, was held not to be evidence of an adverse possession, sufficient to toll the entry of the true owner, after twenty years. The Court there say, “ This mode-of taking possession is too loose and equivocal. There must be a real and substantial enclosure, an actual occupancy, apossessio pedis, which is definite, positive and notorious, to constitute an adverse possession, When that is the only des fence, and is to countervail a legal title.”

There is nothing in the defendant’s case, to justify a con? a tractive extension- of the possession, beyond the astual inf* provement; which, not embracing the premises in question*. the plaintiff is entitled to judgment. This must be for one undivided fourth part, only, of the premises. The case ®hews no title in the plaintiff, beyond the share which descended to Wm. Gilliland.

Savage, Ch. J. concurred, in a judgment for the plaintiff, for one undivided fourth part of the premises ; and the Court gave

Judgment accordingly.