Poor v. Gibson

32 N.H. 415

Opinion

Fowler, J.

*

We are called upon to give a construction to the declaration in this case, and we think it must be understood as embracing such a tract of land as will fall within the lines and monuments described, whether it be embraced within the limits of lot No. 6 or not. If so, the plaintiff was certainly at liberty to prove his claim as laid, and that allowed the proof of a trespass upon the territory described by monuments, whether it were part of lot No. 6 or lot No. 5.

It being determined by the verdict that the plaintiff entered upon the land described in the writ as part of lot No. 6, and that he retained, occupied and improved it, supposing it to be part of that lot; claiming it under his deed and possession as part of that lot; we think he has shown a sufficient title against one who has shown no title except by a subsequent possession under claim of title by deed; especially as the case finds it to be even now doubtful whether the land was in lot No. 6 or lot No. 5. All the defendant acquired by his deed was the possession of Farmer, who had previously entered without deed. His deed marked the extent of his claim as derived from Farmer, but gave no further right than Farmer had. The plaintiff had made an earlier entry upon the land, and actually occupied most of it by way of cutting wood and timber, and clearing a portion, and had a deed which he claimed and supposed covered the premises in controversy. His possession, under these circumstances, appears to us clearly sufficient to enable him to maintain this action.

It has been repeatedly decided in this State, and may well be considered as fully settled, that prior entry upon and continued acts of ownership exercised over and upon a tract of land, such as the case finds the plaintiff to have made and exercised in respect to the premises described in the writ, are sufficient evidence of title to enable the tenant to maintain an action against one who subsequently enters, but shows no right to enter upon the land. Woods v. Banks, 14 N. H. 101; Moor v. Campbell, 15 N. H. 208; 2 N. H. 456 ; 3 N. H. 26 ; 3 N. H. 50.

In Tenney v. Beard, 5 N. H. 58, where a question of description and boundary, somewhat of the same character as that raised in the present case, was presented for consideration, the court held it to be “ a principle sanctioned by common sense and many adjudged cases, that a resort was not to he had to the description of the land as a particular lot, until driven to it by finding the common rules of construction insufficient to enable us to ascertain, by the monuments mentioned in the deed, what was intended to be granted.”

Applying .the principle of these eases to the one before us, the instructions of the court below seem to have been entirely correct. The boundaries mentioned in the declaration are clear and definite, the whole description is to be taken together, and the place of trespass being described as part of lot No. 6, bounded by particular lines and monuments on the ground, the evidence might properly apply to any part of the land included in the boundaries, whether on lot No. 6 or not; and the extent of lot No. 6 being a matter of reasonable doubt, an entry by the plaintiff, under his deed of lot No. 6 only, on what he claimed by clearly defined bounds as part of that lot, and subsequent possession in accordance with that entry, would enable him to maintain an action against any stranger without title who might interfere with his possession, whether the land ultimately proved to be part of lot No. 6 or not.

If the defendant had shown that another person had a better right than the plaintiff to the land in dispute — as that the locus in quo was part of a lot to which the plaintiff had no title either by deed or adverse possession — it might perhaps have availed him in the reduction of damages, but would have been no bar to the maintenance of this action.

The instructions to the jury being correct, there must be

Judgment upon the verdict.

Peeley, C. J., and Sawyer, J., did not sit.