Dubuque v. Coman

• Decision Date: 09 July 1894
• Citation: 64 Conn. 476,30 A. 777
• Court: Connecticut Supreme Court
• Parties: DUBUQUE v. COMAN.

30 A. 777

64 Conn. 476

DUBUQUE

v. COMAN.

Supreme Court of Errors of Connecticut.

July 9, 1894.

Appeal from superior court, Windham county; Ralph Wheeler, Judge.

Action of trespass, before a justice of the peace, by Albert Dubuque against George Coman, which resulted in a judgment for plaintiff. On appeal to the superior court and a trial there, plaintiff secured another judgment, from which defendant appeals. Affirmed.

Charles F. Thayer, for appellant.

Charles E.

Searls, for appellee.

BALDWIN, J. The judgment appealed from was one rendered for one dollar, damages, in an action for the disturbance of the plaintiff's possession of a small pasture lot, containing about two acres, and worth from $60 to $70. The locus in quo was originally part of a farm of over 170 acres belonging to Hale Jacobs. He conveyed it, together with another part of the farm, to Salem Jacobs, in 1862. In 1874, the heirs of Hale Jacobs, among whom was Salem Jacobs, conveyed to the defendant another part of the farm, described as containing 83 3/4 acres, and particularly bounded by courses, distances, and monuments. The land within these bounds in fact only amounted to 81 3/4 acres, and adjoined the lot in question. In 1876, Salem Jacobs died, testate, devising his residuary estate, including the locus inquo, to William Joslin, "in trust, for the following purposes and uses, to wit: To sell all my real estate at his discretion, after consulting and advising in relation thereto with my wife, Mary Jane Jacobs, and to invest the avails of such sale safely, as he may think best, and to change such investments at his discretion; to sell, after consultation with my said wife, any or all of the personal property belonging to my estate, and to invest, change, and reinvest the avails thereof as he may think best, and to invest and reinvest any and all funds coming into his hands and belonging to my estate, at his discretion, at all times, and to pay over to my said wife, Mary Jane Jacobs, the income, interest, and dividends for her support and maintenance during the whole period of her natural life, and so long as she remains my widow and unmarried, and so long as, in his opinion, she conducts herself discreetly, at such times and in such sums as her needs may require. And I direct and enjoin upon said trustee to furnish to my said wife, as aforesaid, a comfortable and liberal support, as aforesaid, according to her and my circumstances in life; and, should the income from said trust estate prove inadequate to such support, I direct my said trustee to apply any or all the principal to said purpose, as the wants of my said wife may require." Upon the death or marriage of the widow, the residue of the trust estate was to be divided between the brothers and sisters of the testator. Mr. Joslin subsequently resigned the trust, and the court of probate appointed Lawson Aldrich as his successor. In 1879, Mr. Aldrich, as such trustee, by a deed professing to be in execution of the power of sale granted to him in the will of Salem Jacobs, sold and conveyed to the plaintiff all the right and title which Salem Jacobs had at the time of his decease to certain lands particularly bounded and described, among other things, as containing in all 89% acres, and lying north of land of the defendant These lands were near the locus in quo, but did not comprehend it. Soon after this conveyance, the defendant and the plaintiff had a conversation as to the ownership of the locus in quo, in the course of which the defendant said that he thought it belonged to the plaintiff. In 1880 the defendant sold and conveyed to his sister, by warranty deed, all the lands he had bought of the heirs of Hale Jacobs, and he has never since had title to any of them, though he remained in possession of the whole. Up to 1885 the locus in quo was occupied by the trustees of the estate of Salem Jacobs. Soon afterwards the defendant notified the plaintiff that he claimed title to the lot, and plaintiff asserted that the title was in himself. In each of the years 1885, 1886, and 1887 the defendant, on several occasions, put some cattle on the ground, and took away some fruit and wood. In 1888, he leased it to a third party, who used it for pasturage during that season. In 1889 the defendant put up a small tool shod upon it, in which he placed some tools and boards, and moved some wagons and lumber there, where they have all ever since remained. The plaintiff forbade these acts. Soon afterwards, the defendant removed from the state. In 1890 the plaintiff, under a claim of title, by reason of the Aldrich deed, pastured his cattle on the lot throughout the entire season, without permission or objection from any one, and did the same in 1891 until July, and throughout the season of 1892. He also gathered some apples there, and took away some wood, during these years. In June, 1891, he procured a deed from Marcus M. Towne, the successor of Aldrich, as trustee of the right and title which Salem Jacobs had at the time of his decease to the locus in quo. This deed purported to be given by virtue of authority granted in the will of Salem Jacobs. In August, 1891, the defendant entered on the lot, and a year later this action was brought. On July 11, 1892, shortly before the suit was begun, the defendant sent a letter to the heirs of Hale Jacobs, stating that the plaintiff had turned his stock into the lot in question, under a claim of title, and that he wanted them to get him out, and give the defendant possession, at once.

The finding of the court below, after setting forth these facts, states that, from the delivery of the Towne deed to the bringing of the suit, the plaintiff had the actual, adverse, and exclusive enjoyment and possession of the premises. The defendant urges that this conclusion cannot be true, in view of the acts of ownership and possession on his part which have been mentioned; and that the plaintiff's stock certainly cannot have pastured under the shed, or under the pile of lumber which the defendant left near it in our opinion, the trial court was warranted in the result to which it came, in this particular. The deposit of materials, and erection of a shed, on the land of another, followed by their abandonment for years, is not necessarily inconsistent with his continued possession. A study of the evidence...