Proprietors of Enfield v. Day

7 N.H. 457

• Court: Superior Court of New Hampshire
• Decided: July 15, 1835
• Status: Published

Opinion

Richardson. C. J.,

delivered the opinion of the court.

*

, This case has been very forcibly and pertinently argued on both sides, and the grounds taken very clearly and plainly stated. I shall in the first place examine the exceptions which have been taken to the instructions which were given to the jury.

The jury were in substance instructed, that if the proprietors of Enfield entered upon and claimed the land in dispute, under their.original charter, and held peaceable possession for more than twenty years, no claim being made during the time by the proprietors of Grantham, but all title disclaimed, in that case the demandants were entitled to recover. And that an entry into part was in law for this purpose an entry into the whole. .

To this it is objected, that as the;original charter did not cover the land in dispute, the entry under the charter was without color, of title, and so no right could be acquired by adverse possession under such an entry.

To this it is answered, that it was competent to the proprietors of the two townships to settle the. line by agreement, and that the evidence was sufficient to prove such an agreement. It is also, said, that the evidence was sufficient to show that the demandants were in fact seized, which was enough under the. circumstances as against this tenant.

Neither of these .answer's meets the objection.. With respect to a seizin in fact which would be. good as against, this tenant, the cause was not put to the jury at all on that. It does not appear that it was even suggested by counsel on the trial. The court in the charge to the jury said nothing on the subject. The question whether the demandants had such a seizin, was a question of fact, to be settled by the jury under the direction of the court; and as the fact has not been thus settled, we cannot now sustain this verdict on the ground that the demandants had such a seizin. Whether the demandants had such a seizin is a question that has not been tried. It is thus manifest that this answer does not meet the objection. .

It is without doubt true that the proprietors of the two townships were competent, to. settle the boundary line between them ; and if they at any time made an agreement which settled the line, they were bound by it. But whether they had made such an agreement was a matter of fact to be left to the jury. Possession up to the line is not such an agreement. Disclaiming all beyond the line is not such an agreement. These are only evidence from which a jury may infer an agreement. It is manifest that the question whether there had been such an agreement was not submitted to the jury. It does not appear that the question was even suggested to the court by counsel. The ground taken by the demandant’s counsel at the trial seems to have been that there had been an adverse, undisturbed possession of the premises under the original charter, for more than twenty years ; and the court very properly instructed the jury that if there had been such a possession, the demandants were entitled to recover. It is, then, apparent that no answer to the tenant’s objection, drawn from any supposed agreement establishing a line meets the tenant’s objection to the charge; for the question whether there was such an agreement, still remains to be tried.

The objection to this part of the charge, then, remains unanswered, and seems to us to be unanswerable. It is clear that the original charter does not cover the land, and any possession of the land in dispute under that charter is clearly without even color of title. And it is well settled, that such possession is no evidence of right. 3 N. H. R. 23 and 49.

Where one who had a deed of lot No. 4, took possession of lot No. 5, adjoining, believing it to be his lot'and claiming it as such, it was held that he could not establish an adverse possession of the whole by actual improvement of a part, because no part of lot No. 5 was included in the deed. 1 Cowen 286.

A possession under a claim of title derived from a source which on the face of it appears not to be a legitimate source of title — as a grant by a foreign government — cannot be deemed adverse. 12 Johnson 365, Jackson vs. Waters.

As it was left to the jury in this case to find a title in the demandants founded upon a possession of the premises for twenty years under the original charter, which did not include the land, this famishes a good reason for granting a new trial without adverting to the other, grounds stated by counsel.

Next) trial granted.

Parker, J., having been of counsel, did not sit