Allaire v. Ketcham

• Decision Date: 18 November 1896
• Parties: ALLAIRE v. KETCHAM et al.
• Court: New Jersey Court of Chancery

35 A. 900

55 N.J.E. 168

ALLAIRE

v. KETCHAM et al.

Court of Chancery of New Jersey.

Nov. 18, 1896.

Bill by Hal Allaire against Rebecca Ketcham and others to quiet title. Decree in favor of complainant.

H. H. Wainwright, for complainant.

R. Allen, Jr., and James Steen, for defendants Rebecca Fielder and William Fielder.

EMERY, V. C. This is a bill to quiet title under the act of 1870 (Revision, p. 1189; 3 Gen. St. p. 3486). The land in question is uninclosed woodland, situate in Wall township, Monmouth county; and the bill, in addition to the usual allegations, contained an allegation that the defendants, or some or one of them, were cutting the timber on the lands, and that those of the defendants who were cutting the timber, or causing it to be cut, were nonresidents of the state, and irresponsible. Upon filing the bill a preliminary injunction was issued, restraining the cutting of timber, or removal of any which had been cut, pending the hearing. The bill alleged peaceable possession of the premises, and has been taken as confessed against all of the defendants except Rebecca Fielder and her husband, William Fielder.

A preliminary question of some difficulty has been raised. The statute confers the right to file a bill in equity to quiet title "when any person is in peaceable possession of lands in this state * * * claiming to own the same," etc. Actual possession and peaceable possession are, on complainant's part, as has been settled, jurisdictional facts, and if denied, as has been done by the answer in this case, must be settled as the preliminary question. Sheppard v. Nixon (Err. & App., 1887) 43 N. J. Eq. 627, 13 Atl. 617; Yard v. Association, 49 N. J. Eq. 306, 24 Atl. 729; Beale v. Blake, 45 N. J. Eq. 668, 669, 18 Atl. 300 (Pitney, V. C.). As to actual possession, the lands here in question are uninclosed woodland, and the proofs of actual possession in relation to such lands are to be such as are required by the character and situation of the lands. On the complainant's part it is proved that about 1856 complainant's predecessor in title, James P. Allaire, cut hoop poles from the whole tract up to the line claimed, his men working for three months, and that in 1871 stakes were placed on the line, and trees marked, and that since that time the complainant has stopped the trespassing by cutting wood on the lands by any person, so far as it has been brought to his knowledge by the persons whom he has employed to take charge of his lands. Other assertions of claim were made,—not extending, however, to acts upon the land itself,— such as stopping sale of the land by defendants in 1884. Except in these instances, no wood has been cut from the lands in dispute for over 20 years, and up to November, 1894, when persons working under some or one of the defendants named in the bill began cutting, and were immediately enjoined under this bill. So far as possession is required by the statute, I think the proofs show that the complainant was the actual possessor of the premises in dispute, and that this possession has been proved by acts of ownership such as were required by the nature and situation of the property. Has the possession been "peaceable," under the statute? If by "peaceable" is meant quiet and peaceable as to every trespasser, whether claiming title or not, then the possession cannot be said to have been altogether peaceable, for the trespassers whom complainant ordered off disturbed this peaceable possession. But I think the true construction of the statute is that the possession must be peaceable as against the defendant. And, further, it seems to me that in determining whether the possession, as to the defendant, is peaceable, the test must be whether the defendant setting up a claim of title has interfered with complainant's possession by an act which is suable at law, and suit upon which will or may involve the title of the defendant. This is the test applied by the courts to the term "peaceable," as connected with the acquiring of easements by continued and peaceable possession for 20 years. Railroad Co. v. McFarlan (Err. & App., 1881) 43 N. J. Law, 605. See opinion of Mr. Justice Depue, page 631. The situation here in reference to the meaning of the word "peaceable," in this statute, is analogous to that of the "peaceable" user in case of easements, and this construction carries out the object of the statute. And if the answering defendant, Mrs. Fielder, had admitted the cutting, or that it was done by her direction or under her order, as it now seems to me the present bill must have been held simply as an injunction bill, restraining trespass pending trial of the title at law. But Mrs. Fielder does not, either in her answer or in her evidence, as I read it, admit that the cutting in 1894, west of the disputed line, was done by her direction. The affidavits to the bill show that it was done by the direction of another defendant, Rebecca Ketcham, who lives out of the state, and against whom the bill has been taken pro conf esso. Mrs. Ketcham's servants were enjoined from further cutting for her, upon filing the bill, and have since desisted. If this cutting was not done by defendant Fielder's orders, or under her direction, then she is not suable for the trespass; and so far as Mrs. Fielder, the answering defendant, is...