Cooper v. Morris

• Decision Date: 30 June 1886
• Parties: COOPER and others v. MORRIS.
• Court: New Jersey Supreme Court

7 A. 427

48 N.J.L. 607

COOPER and others

v. MORRIS.

Court of Errors and Appeals of New Jersey.

June Term, 1886.

In error to Passaic circuit.

A. Woodruff, for plaintiffs in error.

E. Stevenson, for defendant in error.

RUNYON, Ch. The action is for trespass quare clausum fregit. The defendant pleaded the general issue and liberutn tenementum. Of the errors assigned which it is necessary to notice, one has reference to the refusal to admit in evidence a deed to one Dennis Morris; others to refusals to charge as requested by the plaintiffs' counsel; another to the conduct of the judge in calling the jury from their room after they had retired to consider of their verdict, and, in the absence of the plaintiff's and their counsel, giving them further instructions; and another to the form of the verdict.

As to the first, it does not appear that the deed to Dennis Morris had any relevancy whatever to the subject of the controversy.

The requests to charge were—First, that there was no evidence in the case which showed any title to the premises by adverse possession in the defendant, or those under whom he claimed; and, second, that, to make out a title by adverse possession in the defendant, he must prove a continual, open, visible, and exclusive possession of land, marked by definite boundaries, either by a fence or some other visible designation of the lines, as defined by the description in his deed or deeds, and that no such possession of the locus in quo had been proved in the case. The judge could not have charged that there was no evidence of adverse possession. He properly charged that there was evidence upon that subject, of the weight and sufficiency whereof the jury were to judge. Nor could he have charged, as requested, that there could be no title by adverse possession where the land was not marked by definite visible designation of the boundary lines as laid down in the description of the property in the deed or deeds of the person claiming such title. Such a charge would have been contrary to law. It would have been to the effect that there can be no title by adverse possession except under color of title by deed, and that in such case there can be no title by adverse possession, however marked, hostile, and notorious the possession and its accompanying acts and declarations may be, unless the land be marked off by fences or other visible description of its boundary lines. In Foulke v. Bond, 41 N. J. Law, 527, it was held that actual occupancy by residence, cultivation, or inclosure, or the erection of permanent improvements, is not required in order to establish title by adverse possession; and that whether in any case title has been acquired by length of possession, and to what extent and within what limits, must be determined by the actual facts. The judge in this case charged upon the subject by quoting the language of this court in that case.

The conduct of the judge in calling the jury from their room, and giving them further instructions in the absence of the plaintiffs and their counsel, is not error. In contemplation of law, the parties and their counsel remain in c...