The opinion of the court was delivered by
Williams, Ch. J.
This is an action of trespass quare clausum fregit. The close, of which the plaintiff declares that he is seized, is described as Lot No. 26, in the division laid to the right of Jonathan Brewster, and Lot No. 31, in the third Division of the original right of EE'hu Marvin, in Hydepark. To maintain this action, it became necessary for the plaintiff to shew either a title or a possession of the premises, and, that defendant had committed the injury complained of; and it also became necessary for the plaintiff to shew, that the lands, where the trespass was committed, had been severed or located to the rights, and set apart as the lots, numbers, and divisions described in his declaration.
In the action of trespass it is sufficient for a plaintiff to prove a possession of the locus in quo. A mere prior occupancy, however recent, is sufficient against all, except those who can [390]*390Prove an older and better title. The case of Catteris v. Cowper, 4 Taun. Rep. 547, decides, that very slight' evidence of possession, is sufficient to enable the occupant to maintain the actl0n against the wrong-doer. ¡ Possession implies an entry on the land, and, without title, such an entry is in itself a trespass on the real owner, yet, a series of such trespasses, continued for fifteen years, extinguishes the right of the real owner, and gives a title to the occupier. To constitute a possession, no doubt, there must be an exercise of acts of ownership on the land itself. It is not necessary that the land should be enclosed by a fence, as is sometimes understood. Indeed, the court, in the case oí Jackson v. Schoonmaker, 2 Johns. Rep. 230, attached no importance to the fact, that land had been enclosed by a possession fence. In the case of Ellicot et al. v. Pearl, 10 Peters’ Rep. 412, it appears that the circuit court were requested to instruct the jury, in effect, that possession must be taken either by an actual residence or enclosures. They instructed the jury that if they found the defendant had had possession by an actual residence, or by improvements, with the intention of taking possession, it was sufficient. This charge was sanctioned by the Supreme Court of the United States. In giving the opinion of the court, Justice Story remarks, that “ the erec- “ tion of a | fence is nothing more than an act, presump" five of an intention to assert an ownership and possession over the property. But there are many other acts, which are “ equally evincive of such an intention of asserting such ownership and possession,.such as entering upon lands and making “ improvements thereon, raising a crop of corn, felling and sell“ing the trees thereon, &c. under a color of title.” Similar to. this, was the decision and language of the court in this State, in Doolittle v. Linsley, 2 Aikens’ Rep. 155. The action was for a trespass on a timber of wood lot. The plaintiff only proved a claim of title, and that he got wood and timber on the the same for two years. The court instructed the jury, “ that, “ if the plaintiff had commenced the first possession upon the “ lot, by cutting timber and wood thereon, (the same having “ been previously . surveyed, and the lines marked,) claiming “ title thereto, and had continued that possession, by repeatedly “ getting timber and wood from the lot, he could maintain “ this action against a stranger.” This charge was sanctioned by the supreme court, and they considered those acts done by the plaintiff, connected with his claim of right, as sufficient, if [391]*391continued for fifteen years, to give a title by the statute of limitations. It is to be noticed, that, in all these cases, great stress is laid on the claim of title. The same acts and doings might be considered as acts of trespass, or of possession and ownership, according to the claim set up by the person performing them. Cutting wood and timber from year to year, disclaiming any ownership, or perhaps without any claim of title, might be considered as nolhing more than trespass, and no evidence of possession ; whereas, the same acts on a lot of land marked out, or the boundaries of which were designated by a survey or deed recorded, or by known and acknowledged metes and bounds, and under a claim of title, would be treated as unequivocal acts of possession. Cutting wood on one’s own land, is an act of ownership, but on the land of another,' a trespass. There can be no doubt, in the present case, but that the claim of title, on the part of the plaintiff, was- an important item in' the proof, as establishing the fact of his possession. The deed from Matthew Franklin to him, dated 30th October, 1811, shews that he had a claim of title to the right of Jonathan Brewster, as there is but one right of that proprietor in the town. The vendue deed from Lothrop to the plaintiff and McDaniel of the right ofElihu Marvin, shews a similar claim to that right, and it did not appear that any other person had ever claimed those rights, or set up any claim to the lots in question.
In the order of the trial, the plaintiff endeavored to shew that the locus in quo was severed to the divisions and rights as set forth in his declaration, and for this purpose, he introduced evidence to shew a division and draft. Without entering particularly into the evidence, it is sufficient to say, that we consider the testimony as properly admitted, and the division and draft as proved. It shews a division in fact, acquiesced in by all the proprietors, or, at least, not questioned by any. It is scarcely possible to prove a legal division in any .of our old towns. Hence, all, which has ever been required, is to shew a division in fact, and this pre-supposes, that no evidence of a legal division exists. An imperfect division, evidenced by a plan, or even by parol, acquiesced in by the proprietors, is always held as a good division, binding on them, and clearly is good against strangers. The defendant in this case had recognized this division, so far as it respects No. 26, by accepting a deed of part of the same.
Considering that the plaintiff had shewn a claim of title to [392]*392the rights of Brewster and Marvin, and that the lots No. 26 and 31, were set apart to those rights, we must next inquire, whether evidence established such a possession in him, as to enable him to maintain the action of trespass against a stranger, according to the principles already advanced. The court charged the jury, that, for the purposes of this action, a sufficient title had been shewn, if the jury believed the witnesses of the plaintiff. We coincide in the opinion with the court below, that the testimony on the part of the plaintiff was sufficient, but in reviewing their decision, it will not be expedient to separate the testimony of the plaintiff from that introduced by the defendant, but to examine the evidence in connection.
It appears that, previously to 1828, Newland, the defendant, had leave to enter upon lot No. 26, and take therefrom the fallen or down timber, saw the same on shares, and render to the plaintiff his share ; and that he did so enter and take the down pine timber. That of No. 31, the Marvin lot, claimed by plaintiff and McDaniel, they sold fifty acres to one Smith, although no deed was given, and Smith built a log house thereon, and then abandoned it; — that plaintiff and McDaniel, who were generally reputed owners to both lots, licensed other persons to take timber on both lots; — that the plaintiff sold a mill privilege on lot No.
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The opinion of the court was delivered by
Williams, Ch. J.
This is an action of trespass quare clausum fregit. The close, of which the plaintiff declares that he is seized, is described as Lot No. 26, in the division laid to the right of Jonathan Brewster, and Lot No. 31, in the third Division of the original right of EE'hu Marvin, in Hydepark. To maintain this action, it became necessary for the plaintiff to shew either a title or a possession of the premises, and, that defendant had committed the injury complained of; and it also became necessary for the plaintiff to shew, that the lands, where the trespass was committed, had been severed or located to the rights, and set apart as the lots, numbers, and divisions described in his declaration.
In the action of trespass it is sufficient for a plaintiff to prove a possession of the locus in quo. A mere prior occupancy, however recent, is sufficient against all, except those who can [390]*390Prove an older and better title. The case of Catteris v. Cowper, 4 Taun. Rep. 547, decides, that very slight' evidence of possession, is sufficient to enable the occupant to maintain the actl0n against the wrong-doer. ¡ Possession implies an entry on the land, and, without title, such an entry is in itself a trespass on the real owner, yet, a series of such trespasses, continued for fifteen years, extinguishes the right of the real owner, and gives a title to the occupier. To constitute a possession, no doubt, there must be an exercise of acts of ownership on the land itself. It is not necessary that the land should be enclosed by a fence, as is sometimes understood. Indeed, the court, in the case oí Jackson v. Schoonmaker, 2 Johns. Rep. 230, attached no importance to the fact, that land had been enclosed by a possession fence. In the case of Ellicot et al. v. Pearl, 10 Peters’ Rep. 412, it appears that the circuit court were requested to instruct the jury, in effect, that possession must be taken either by an actual residence or enclosures. They instructed the jury that if they found the defendant had had possession by an actual residence, or by improvements, with the intention of taking possession, it was sufficient. This charge was sanctioned by the Supreme Court of the United States. In giving the opinion of the court, Justice Story remarks, that “ the erec- “ tion of a | fence is nothing more than an act, presump" five of an intention to assert an ownership and possession over the property. But there are many other acts, which are “ equally evincive of such an intention of asserting such ownership and possession,.such as entering upon lands and making “ improvements thereon, raising a crop of corn, felling and sell“ing the trees thereon, &c. under a color of title.” Similar to. this, was the decision and language of the court in this State, in Doolittle v. Linsley, 2 Aikens’ Rep. 155. The action was for a trespass on a timber of wood lot. The plaintiff only proved a claim of title, and that he got wood and timber on the the same for two years. The court instructed the jury, “ that, “ if the plaintiff had commenced the first possession upon the “ lot, by cutting timber and wood thereon, (the same having “ been previously . surveyed, and the lines marked,) claiming “ title thereto, and had continued that possession, by repeatedly “ getting timber and wood from the lot, he could maintain “ this action against a stranger.” This charge was sanctioned by the supreme court, and they considered those acts done by the plaintiff, connected with his claim of right, as sufficient, if [391]*391continued for fifteen years, to give a title by the statute of limitations. It is to be noticed, that, in all these cases, great stress is laid on the claim of title. The same acts and doings might be considered as acts of trespass, or of possession and ownership, according to the claim set up by the person performing them. Cutting wood and timber from year to year, disclaiming any ownership, or perhaps without any claim of title, might be considered as nolhing more than trespass, and no evidence of possession ; whereas, the same acts on a lot of land marked out, or the boundaries of which were designated by a survey or deed recorded, or by known and acknowledged metes and bounds, and under a claim of title, would be treated as unequivocal acts of possession. Cutting wood on one’s own land, is an act of ownership, but on the land of another,' a trespass. There can be no doubt, in the present case, but that the claim of title, on the part of the plaintiff, was- an important item in' the proof, as establishing the fact of his possession. The deed from Matthew Franklin to him, dated 30th October, 1811, shews that he had a claim of title to the right of Jonathan Brewster, as there is but one right of that proprietor in the town. The vendue deed from Lothrop to the plaintiff and McDaniel of the right ofElihu Marvin, shews a similar claim to that right, and it did not appear that any other person had ever claimed those rights, or set up any claim to the lots in question.
In the order of the trial, the plaintiff endeavored to shew that the locus in quo was severed to the divisions and rights as set forth in his declaration, and for this purpose, he introduced evidence to shew a division and draft. Without entering particularly into the evidence, it is sufficient to say, that we consider the testimony as properly admitted, and the division and draft as proved. It shews a division in fact, acquiesced in by all the proprietors, or, at least, not questioned by any. It is scarcely possible to prove a legal division in any .of our old towns. Hence, all, which has ever been required, is to shew a division in fact, and this pre-supposes, that no evidence of a legal division exists. An imperfect division, evidenced by a plan, or even by parol, acquiesced in by the proprietors, is always held as a good division, binding on them, and clearly is good against strangers. The defendant in this case had recognized this division, so far as it respects No. 26, by accepting a deed of part of the same.
Considering that the plaintiff had shewn a claim of title to [392]*392the rights of Brewster and Marvin, and that the lots No. 26 and 31, were set apart to those rights, we must next inquire, whether evidence established such a possession in him, as to enable him to maintain the action of trespass against a stranger, according to the principles already advanced. The court charged the jury, that, for the purposes of this action, a sufficient title had been shewn, if the jury believed the witnesses of the plaintiff. We coincide in the opinion with the court below, that the testimony on the part of the plaintiff was sufficient, but in reviewing their decision, it will not be expedient to separate the testimony of the plaintiff from that introduced by the defendant, but to examine the evidence in connection.
It appears that, previously to 1828, Newland, the defendant, had leave to enter upon lot No. 26, and take therefrom the fallen or down timber, saw the same on shares, and render to the plaintiff his share ; and that he did so enter and take the down pine timber. That of No. 31, the Marvin lot, claimed by plaintiff and McDaniel, they sold fifty acres to one Smith, although no deed was given, and Smith built a log house thereon, and then abandoned it; — that plaintiff and McDaniel, who were generally reputed owners to both lots, licensed other persons to take timber on both lots; — that the plaintiff sold a mill privilege on lot No. 26, to the defendant and one Noyes, and gave them permission, on the completion of the purchase, to take all the timber, except pine, which they might need about the erection of the mill dam, floom, &c., and they accordingly did so from time to time, and spruce timber had been cut and used in and about said mill dam. The defendant gave evidence, tending to prove another agreement, by which he had permission to take the standing pine timber, and that in pursuance thereof, both green and old timber were taken from both the lots, sawed into boards and divided; that the boards were stuck up at the-mill, marked “Sawyer,” and “ McDaniel and Sawyer,” part of which had been removed by plaintiff, and a large part thus marked still remained. The claim of tire defendant, that he took this timber by permission of the plaintiff, w'as at least, an acknowledgment that the plaintiff claimed, or had title to the lands in question, it is to be' observed, that these acts of the defendant or Noyes, done by the permission of the plaintiff, are to be considered as though done by the plaintiff himself. These several acts, done and performed from time to. time, from [393]*393before the year ] 828-, to the commencement of this spit, the plaintiff, claiming to be, the oymet' of the. lots,, must be considered., as they ever have been, as acts of ownership and possession, on the part of the plaintiff —so much so, as to. have subjected him to an action of ejectment at the suit, of the true owner, if there is any other owner bu.t him and the representatives of McDaniel, and if continued for. the period of fifteen years, would have, given them an absolute, title against every one. The case of Doolittle v. Linsley, to which.pve. have already adverted, as welJ¡ as the other cases, are decisive that the plaintiff had a sufficient possession to maintain this action against a stranger to the title. These are probably the principal, questions, involved in the c.on troversy between the plaintiff and ' the defendant. There are, however, some other questions of minor importance,.to. which our attention has been called', and which must be noticed.
As it regards the license, it is to. be observed, that, from the charge of the court, the jury must have found no license given to cut the green or standing' timber. Nor can. we see, from the case as presented, how any question in relation to the license,, as a defence, could have arisen. No lic.ense was. pleaded, but evidence, it appears^ was received without objection, and the attention of the court was directed to it. The defendant could not, without a plea, or notice, rely on the lic.en.se as a justification. The evidence introduced by the plajntiff, on the subject, showed the acts done by the, defen.da.nt, by. plaintiff’s permission, as acts of ownership done by himself. For what was done by his permission is. considered as. done by him.. The defendant was not, on this account, entitled to rely on it as a justification, without a plea to that effect. Nor can the plaintiff contend, that the defendant wa.s estopped to deny his title. A plea of justification admits a title, but if pleaded with the general issue, the plaintiff must still give evidence of his title. On the evidence, the court was requested to charge the jury, that, if the defendant had a license in part to enter upon the lot, his entry would be legal, and that, if he exceeded his authority, ¡he would be liable for the excess, in this action. The distinction between an authority in law, an abuse of which renders the person a trespasser ab initio, and an authority in (act, when such license is exceeded, and the person is liable only for the excess, is familiar. From the remarks already made in relation to the plea, as well as from the evidence detailed, it is obvious that no ques[394]*394tion arising on this distinction, is here presented. There is nothing by which we can learn, that the defendant entered for a lawful purpose, to wit, to cut the fallen timber, and then exceeded his permission ; but on the contrary, the whole purpose and intent of the defendant may have been to cut the green timber, for any thing which appears in the case. But further, if the defendant had pleaded a license to enter, the plaintiff could have replied the excess, and recovered therefor, if the evidence was sufficient. And if he pleaded the general issue and gave notice of a license, the plaintiff could then have recovered lor what the defendant had done beyond the limits of his authority. This doctrine was established in the case of Hubbell v. Wheeler, 2 Aikens’ Rep. 359. The jury, as has been remarked, must have found no license to cut the timber; so that if the pleadings had assumed a shape to present these questions distinctly, the result must have been .the same. From a view of the whole case, we are satisfied the plaintiff showed a sufficient possession of the locus in quo ; that the defendant set up no justification in such a manner as that he could have availed himself of it, if the facts would have warranted it; and from the evidence and the finding of the jury, it is evident he was not justified in entering upon the land and. cutting the timber, for which the suit was instituted.
The judgment of the county court is, therefore, affirmed.