Baker v. Chase

• Decision Date: 09 December 1874
• Citation: 55 N.H. 61
• Parties: Baker v. Chase.
• Court: New Hampshire Supreme Court

55 N.H. 61

Baker v. Chase.

Supreme Court of New Hampshire

December 9, 1874

In order that the title to a personal chattel pass by operation of the statute of limitations, there must at least be some use or appropriation of it, or some act of dominion over it inconsistent with an absolute right of property in the owner and such as would lay the foundation of an action for its recovery.

In 1861 the plaintiff bought a piece of land on which were lying some split stones, the property of the defendant. For more than six years the stones were not moved by either party, and no claim of ownership in them was asserted by either to the other. Held, that the title to the stones did not pass to the plaintiff by virtue of the statute

TRESPASS qu. cl., by James Baker against Amos Chase, for entering the plaintiff's close and carrying away stone. Tried by the court as upon the general issue, and a special plea. In 1848, Enoch Gove, owning a farm, verbally agreed with the defendant's father to sell him a large rock, or all he wished to quarry from it, for five dollars. The five dollars was paid, and the defendant's father and the defendant agreed that they would split out the stone jointly and each have a part, the defendant's father to take what he wanted for the underpinning of a house he was building and the defendant to have the rest. A number of men were employed by them more than a week splitting out the stone, Enoch Gove and his sons assisting, "changing works" with the defendant, who assisted Enoch in splitting out stone in other places

on the farm for Enoch's use. The defendant's father hauled away all he wanted, and the defendant hauled away all he then had occasion to use, leaving the three split out, for the removal of which, in 1872, this suit is brought. Two of the three were split for door-steps, each nine and a half feet long and three feet wide; the other for underpinning, seven feet long and eighteen inches wide. Two were drawn a few feet, and the other was moved a little, and sticks or stones put under them, in 1848, when they were split; and they were not afterwards moved till the defendant carried them away in 1872. The defendant hauled away some that he had split out tow or three years after 1848. He has always understood that the three were his; but, after he took some in 1850 or 1851, he neither did nor said anything to set up any claim to those that were left until six or eight years after the defendant bought the land, when the defendant and the plaintiff both claimed them. Enoch Gove died about twenty-five years ago, leaving the farm to his children, and, in their division of it, the part upon which the stone were passed to William H. and Levi, who conveyed it to the plaintiff in April, 1861. The plaintiff knew that the stone were split by the defendant and his father. The plaintiff hauled some that were split at the same place in 1848 for the underpinning of the house of the defendant's father, and hauled one that the defendant's brother had. No stone were reserved in the plaintiff's deed, and nothing was said about stone when he bought the farm. There was no evidence that Enoch Gove or his children ever said or did anything about the stone by way of claiming or disclaiming them, except what is stated in this case. The question of the ownership of the stone did not occur to his children while they owned the farm, or when they sold it. They had no opinion, belief, understanding, or thought on the subject. The plaintiff testified that he supposed he bought the stone with the farm. The defendant's entry to remove the three stones was without the plaintiff's consent. The defendant applied to the plaintiff to know whether he would object; and the plaintiff made no answer, except to claim the stones as his. The damage done by the defendant's entry was nominal. The three stones, when carried away by the defendant, were worth twenty dollars. Judgment is to be rendered by the whole court, drawing such conclusions of law and fact as the foregoing facts seem to them to warrant.

Morrison, Stanley & Hiland, for the plaintiff. Briggs & Huse, for the defendant

LADD, J

The court are to draw such conclusions of fact as well as law, as the facts stated in the case seem to warrant. I think the facts stated warrant the conclusion that the plaintiff, in 1848, knew that the property in the stones, about which this controversy has arisen, passed out of Enoch Gove; and it is very probable that he also knew at that time all the terms of the bargain, as well between the defend-

ant's father and Gove, as between the defendant and his father. It is enough, however, that he knew the stones then ceased to be the property of Enoch Gove, and, of course, that they ceased to be part of the realty. It is of no consequence whether he supposed or did not suppose they passed by the deed of Wm. H. and Levi Gove to him. Having once had imposed upon them the character of chattels by being split out and moved, they did not pass by that deed, whatever the parties may have supposed, unless something had been done in the meantime to clothe them again with their original character of real estate. What had happened to them? The case shows nothing at all. They had not been appropriated to any use, or moved from the spot where they were originally left. The owners of the farm had never said or done anything by way of asserting a claim to them or otherwise. So I find that, at the time of the deed from Wm. H. and Levi Gove to the plaintiff, they were chattels, and did not pass by that deed.

Then comes the question whether they have become the property of the plaintiff by anything that has happened or failed to happen,---that is, by anything that has been done or omitted by the parties si...