Butler v. Taylor

• Full Citation: Butler v. Taylor, 86 Me. 17, 29 A. 923 (Me. 1893)
• Decision Date: 11 August 1893
• Citation: 29 A. 923,86 Me. 17
• Parties: BUTLER v. TAYLOR.
• Court: Maine Supreme Court

29 A. 923

86 Me. 17

BUTLER

v. TAYLOR.

Supreme Judicial Court of Maine.

Aug. 11, 1893.

Report from supreme judicial court, Franklin county.

Action in trespass by David A. Butler against Alfred Taylor. Heard on report Judgment for defendant.

Trespass for entering land in Eustis, Franklin county, formerly belonging to Miles Standish, deceased, and cutting and carrying away pine trees.

The plaintiff claimed title to the premises by virtue of a deed from the administrator of said Standish's estate, dated February 29, 1888, conveying "the following described real estate, to wit, all the right, title, and interest the said Miles Standish had, at the time of his decease, in a certain piece or parcel of land, lying in Eustis, Franklin county, and known as the Buxton tract. * * *"

The defendant justified as agent of Seth B. Hersey, who claimed title under a sheriff's deed, dated February 12, 1884, made to Woodman, True & Co. upon an execution sale, according to Rev. St. c. 76, § 33, and conveying "one lot of land, called the Buxton lot or tract, containing two thousand acres, more or less, situate in the southeast quarter of the Buxton tract, so called."

It was admitted that said Hersey had acquired, and held, at the time of the alleged trespass, the title of Woodman, True & Co., and that the defendant, Taylor, made the entry alleged upon the premises, and that, in making such entry, he acted by permission, and under the authority, of said Hersey, under his claim of title as aforesaid.

It was also agreed and admitted that the Buxton tract, so called, was, at the date of the sheriff's deed, a well-known and well-defined tract of land, containing about 10,000 acres, in the south half of the town of Eustis. Both deeds were duly recorded; and' It was admitted that the plaintiff had actual knowledge of the sheriff's deed to Woodman, True & Co. at the time he took and accepted the deed from the administrator of said Standish.

The land upon which the trespass is alleged to have been committed is in the northeast quarter of the Buxton tract, and the plaintiff claimed that it was not included or embraced in the description contained in the sheriff's deed.

C. A Wilber and Walton & Walton, for plaintiff. Symonds, Snow & Cook, for defendant.

WALTON, J. This is an action of trespass quare clausum fregit, and the question is whether the plaintiff has shown such a possession, actual or constructive, as will enable him to maintain it

We think he has not. His only evidence of title is a deed, from the administrator of Miles Standish, of all the decedent's right, title, and interest in a tract of land, admitted to contain 10,000 acres, and of which the land on which the alleged trespass was committed is a very small part; and there is not a scintilla of evidence that the decedent ever had a title to any portion of it, or that he, or his administrator, or the plaintiff, ever had so much as a momentary seisin of the land on which the defendant's trespass is alleged to have been committed. Clearly, such a piece of paper is not sufficient to maintain an action of trespass quare clausum fregit.

It was formerly held that such an action could be maintained only by a person in actual possession of the locus in quo; that a mere legal or constructive possession was not sufficient. It was so held, in a very learned opinion by Chief Justice Robertson, in McClain v. Todd's Heirs, 5 J. J. Marsh. 335.

And such was undoubtedly the rule of the common law. But this rule, however well adapted to England, where most of the land is in actual occupation of some one, was thought to be not suited to this country, where there was so much wild and uncultivated land. And it soon became a prevailing rule, in most of the states, that, where there is no adverse possession, a legal title draws with it a constructive possession sufficient to maintain the action. And such is undoubtedly the law in this state.

But, says Professor Greenleaf, though proof of possession, actual or constructive, will maintain the averment of the plaintiff's possession, yet a deed of mere release or quitclaim, without proof of possession at the time by the grantor, or of an entry by the grantee, is not sufficient to prove possession. 2...