City of Manchester v. Duggan

• Decision Date: 06 October 1908
• Citation: 75 N.H. 33,70 A. 1075
• Parties: CITY OF MANCHESTER v. DUGGAN.
• Court: New Hampshire Supreme Court

70 A. 1075

75 N.H. 33

CITY OF MANCHESTER

v. DUGGAN.

Supreme Court of New Hampshire. Rockingham.

Oct. 6, 1908.

Exceptions from Superior Court, Rockingham County; Wallace, Chief Justice.

Writ of entry by the city of Manchester against Joseph S. Duggan. Verdict for plaintiff, and the case was transferred from superior court on exceptions. Exceptions overruled. Judgment on verdict.

The land in question is a small lot on the shore of Massabesic Lake, with a small cottage upon it, built by one Eaton about 1873. The plaintiff claimed title by deed, and the evidence relied upon tended to prove the following facts: The land in controversy was a part of the farm of Edward P. Offutt, and was in his possession in 1873 and thereafter-wards until his death in 1881 or 1882, under title he obtained from one Morrill about 1840. February 1, 1882, Offutt's heirs conveyed the land to Charles Williams, who was in possession of it until 1899, and whose heirs conveyed it to the city of Manchester on December 18, 1903. In 1897 or 1898 the defendant paid rent for the land to Williams. In 1904 the city demanded $25 of the defendant as rent for the land for one year, which be paid about a week after the demand. The possession upon which the defendant relied was not adverse, and was of the cottage only, and not of the land. The defendant claimed title by adverse possession, and the evidence upon which be relied tended to show that the land was in the possession of Henry J. Eaton from 1872 until about 1880, and in the possession of the defendant since the latter date, claiming under Eaton, that the possession was adverse, and that the rent paid by the defendant was for another parcel of land, known as the "McAllister lot." Subject to the defendant's exception, the plaintiff introduced in evidence tax records of the town of Auburn, where the land is situated, which showed a tax assessed against the defendant and his grantors on "buildings on Williams' land" for a series of years prior to the date of the writ. The plaintiff claimed title under Williams. There was no evidence that the defendant knew of these entries, except that he and his predecessors in title paid the taxes in question and some of the tax receipts given them were for tax "on the cottage." At the defendant's request the jury were instructed as follows: "The fact, if it was a fact, that the tax assessors of Auburn described this property of Duggan's as a building on Williams' land, is no evidence whatever that the laud was Williams' and not Duggan's." The defendant excepted to a denial of his request for the following instruction: "I instruct you that if the defendant paid rent to Williams or to the city on the lot designated as the McAllister lot, and refused to pay rent on or in respect to the parcel he now claims, and always understood that he was paying this rent only on the McAllister lot, then this payment was not a waiver of the statute or a recognition of the plaintiff's title, and your verdict will be for the defendant." The defendant also excepted to the denial of his motions for a nonsuit and the direction of a verdict in his favor.

Burnham, Brown, Jones & Warren, for plaintiff.

Taggart, Tuttle, Burroughs & Wyman and David W. Perkins, for defendant.

WALKER, J. The finding of the court that the evidence tended to sustain the plaintiff's theory of title to the land in question is...