Townsend v. Bissell

5 Thomp. & Cook 583

Opinion

Gilbert, J.

The objection to the proof of the lane was too general. H it had been put upon the ground that the defense sought to be established thereby had not been pleaded, it might have been obviated by an amendment. We must, therefore, regard the evidence as properly in the case, and determine the rights of the parties accordingly.

It appears, then, that the locus in quo is a part of a lane ten feet wide, running between the premises in possession of the parties respectively, and which had been used as such by the occupants of those premises in common, and for all purposes of ingress and egress for more than forty years. The trespass complained of consisted of the pulling down of a wall which the plaintiff had shortly before built in the lane, and which obstructed the accustomed use of it by the defendants.

The plaintiff could not maintain this action without proof that he was in possession of the locus in quo at the time the alleged trespass was committed. He testified to that fact in general terms. But the evidence on the part of the defendants clearly proved the existence of the lane and tha*fc the possession relied on by the plaintiff was tortiously acquired by inclosing a part thereof by means of the wall mentioned That will hardly suffice. Mere occupation under such circumstances does not prove possession. The acts of the plaintiff amounted to nothing more than an unlawful obstruction of the lane, which the defendants were justified in removing. Brown v. Dawson, 12 Ad. & El. 628.

The question of the actual possession of lands in a case like this is not one of title, which ousts the justice’s court of jurisdiction. Ehle v. Quackenboss, 6 Hill, 537.

The judgment should be affirmed.

Judgment affirmed.