Davenport v. Newton

Decision Date07 November 1898
Citation71 Vt. 11,42 A. 1087
PartiesDAVENPORT et al. v. NEWTON et al.
CourtVermont Supreme Court

Exceptions from Bennington county court; Thompson, Judge.

Action by C. H. Davenport and another against Moses Newton and others for trespass on land, and for treble damages, under R. L. § 4200. There was a judgment pro forma for defendants to recover their costs, and plaintiffs excepted. Modified.

Waterman, Martin & Hitt, for plaintiffs.

Charles S. Chase and J. K. Batchelder, for defendants.

ROWELL, J. This is trespass on the treble-damage act for cutting timber trees on land in Searsburg. The locus consists of that part of lot No. 53 that lies west of the old town line, called the "Ball Lot"; the rest of 53, except a strip on the north end, that belongs to the governor's right; and of that part of lot No. 54 that lies west of said old line, called the "57-Rod Strip." The plaintiffs claim title by adverse possession only, and, failing that, they claim a possessory title sufficient to enable them to maintain trespass against the defendants, who are strangers to all title. The defendants concede the cutting, but deny that the plaintiffs have either title or possession; but, if they have, leave and license from them is claimed. The first deed of the Ball lot is a warranty deed from Origin Ball to Ebenezer Stone, dated August 28, 1834, which describes the land as bounded south by lands owned by Cassander Flagg, formerly owned by Benoni Davis, east by Wilmington west line; north and west by lots and lands unknown,—containing 50 acres, and known by the name of the "Ball Lot." Ebenezer Stone deeded the same to Amos Wentworth on July 1, 1836, and Wentworth deeded it to Ashley Stone, with other lands, on February 15, 1838, and both deeds contained substantially the same description as Ball's deed to Ebenezer Stone. On May 10, 1839, the whole of lot 53 was sold to Ashley Stone for taxes, and the whole of 54 to Walter Goodnow. The collector deeded to Goodnow on May 9, 1840, describing the land as "lot No. 54 in the Second division, drawn to the original right of John Williams, estimated to contain 164 acres"; but it does not appear that he ever deeded 53 to Ashley Stone, nor to any one else. On June 10, 1841, Goodnow quitclaimed 54 to said Stone, describing it as it was described in the collector's deed to him. On February 27, 1845, said Stone gave to Ezra T. Butterfield a warranty deed of the Ball lot and of the whole of 54, describing the Ball lot as bounded south by the Flagg lot so called; east by lands the owner of which was unknown; north by lot 54, Second division, according to the Searsburg survey; and west by lands of Solomon Rich,—containing, by estimation, 50 acres, and known by the name of the "Ball Lot"; and describing lot 54 by its number and division according to said survey and plan of Searsburg, being the same theretofore deeded to the grantor by Walter Goodnow, as would appear of record. And on the same day Stone quitclaimed to Butterfield the rest of 53 not included in the Ball lot according to the original survey and plan of Searsburg, estimated to contain 100 acres. Butterfield, therefore, had deeds of the whole of 53 and 54; and on September 8, 1847, he gave to Horatio B. Smith and A. D. Smith a warranty deed of the Ball lot and of lot 54, describing them as they were described in his deed from Stone; and on the same day he quitclaimed to said Smiths the rest of 53 according to the original survey and plan of Searsburg, estimated to contain 100 acres; and so the Smiths had deeds of the whole of 53 and 54. On March 8, 1861, Emily S. Smith, widow of Horatio B. Smith, and executrix of his will, which was duly probated, deeded to Charles N. Davenport, Eleazer Gorham, and A. L. Wilder lots 53 and 54 according to the survey and plan of the town, intending thereby to convey all the lands in Searsburg of which her husband died seised and possessed, and all the lands conveyed to him and A. D. Smith by said Butterfield as aforesaid, or otherwise; and on June 10, 1861, Wilder quitclaimed said lots to Davenport and Gorham quitclaimed them to him, November 15, 1861, both referring to Mrs. Smith's deed for description. So Davenport had deeds of both of said lots, but it does not appear that A. D. Smith ever deeded them to any one. On September 5, 1839, Cassander Flagg deeded to Anna Flagg 50 acres, more or less, of that part of lot 52 lying between the old town line and lot 45, and on October 13, 1841, she deeded the same to Ashley Stone. We suppose this to be the land on which Stone lived when he occupied the Ball lot, as below stated. On March 27, 1877, said Davenport deeded to Hermon Holt administrator of the estate of David H. Sumner, all of lot 59, that part of 54 lying east of the old town line, and that part of 53 and 60 that is included in the governor's right. Said Davenport died April 12, 1882, and the plaintiffs are his heirs, and claim as such; and it is conceded that they have whatever right and title he had to the locus when he died.

Ashley Stone's bidding off 53 at the tax sale of 1839 gave him no title nor color of title, as the sale was not followed by a deed from the collector (Langdon v. Templeton, 66 Vt. 173, 28 Atl. 866); and as it does not appear that he ever occupied any part of it except the Ball lot, his occupancy thereof must be confined to that lot, and his possession of that cannot be extended by construction to the rest of 53, for the presumption is that he was claiming only according to his deed, which covered only the Ball lot. It is found that he claimed to own the Ball lot, and occupied it some seven years, living meantime on lot 52, south of and adjoining it. These were probably the years during which he had a deed of it, namely, from 1838 to 1845. But the nature and character of that occupancy does not appear, unless we assume—what is not found—that he cleared the whole or a part of the lot, as it appears that it was cleared before Davenport bought it in 1861, but when or by whom does not appear; hence it is claimed that Stone's possession of the lot does not appear to have been such as would ripen into title against the owner, and that, therefore, it is not available to the plaintiffs here. Although occupation is a fact, the effect of it, when its nature and character appear, is matter of law. Child v. Kingsbury, 46 Vt. 55. Therefore, in order to set the statute in operation, it must be such in fact that in law it worked a disseisin of the owner, and to have that effect it must possess all the elements of adverse possession, so that it will ripen into title in the requisite time. Stone's occupancy does not appear to have been such, as there is nothing to show its character except that it was under claim and color of title, which is not enough. But it is not necessary that it should have been such as to ripen into title against the owner in order to be good against strangers, for possession may be good against one man and not against another. If there is a tortious possession, not amounting to a disseisin, the constructive possession as between the tort feasor and the one having the legal title is deemed to continue in him who has the right; but the tort feasor may, nevertheless, maintain trespass against a stranger who disturbs his possession, and the stranger cannot defend by saying that the tort feasor's possession is the possession of the true owner, for, being a stranger, he is not connected with the title of the owner. Langdon v. Templeton. Now, Stone's possession of the Ball lot, though not amounting to dissesin, was good against strangers, and he could have maintained trespass against them for disturbing his possession, for he had a deed of the lot, and was in occupancy of the whole of it, as we construe the report, and claimed ownership under color of title, and that possession was an estate, and passed by deed from Stone to Butterfield. And although it does not appear that Butterfield did any act upon the lot during the two years and a half that he held a deed of it, yet, if he did not, that fact does not of itself, and as matter of law, constitute an abandonment of the possession he acquired from Stone, for whether a prior possession has been abandoned or not is a question of fact, to be determined from the circumstances of the case; and there is no finding of abandonment here. Langdon v. Templeton, above cited; Patchin v. Stroud, 28 Vt. 394. Hence it must be held, in view of the character of the land, that at the time Butterfield deeded to the Smiths, in 1.847, he was still in possession of the lot (Langdon v. Templeton), and that his possession passed to the Smiths by his deed to them, the same as Stone's possession passed to him. And although it does not appear that the Smiths ever did any act upon the lot during the about 14 years they held a deed of it, yet, as there is no finding of abandonment by them, it must be held that they, or their legal representatives, were in possession when Mrs. Smith deeded to Davenport, Gorham, and Wilder, and that her deed transferred that possession to them, or at least the possession of her testator, so that they had possession under claim and color of title; and it is clear from the facts found that Davenport, who soon bought out Gorham and Wilder, not only did not abandon that possession, but supplemented it by an entry of his own, claiming title, for in 1864 or 1865 he caused a fence to be built between the lot and Boyd's on the south, with the declared purpose of pasturing horses there; and it is found that he did pasture horses there, though on inadmissible testimony, we think, and he occasionally went upon 53 and 54, and had a local agent to look after his lands there, and always paid taxes on them. But as to 54, and the rest of 53, it does not appear that any of those under whom Davenport claimed ever had actual possession of either, nor that Stone ever had constructive possession, for his possession of...

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    ... ... (Kan.), 77 P. 538; Peck v. Cooper Ill. 192, ... 54 Am. Rep. 231; Cameron v. Kenyon-Connell Com. Co ... (Mont.), 44 L.R.A. 508; Davenport v. Newton ... (Vt.), 42 A. 1087; Thompson on Corps. (2 ed.), Vol. 5, ... [178 Mo.App. 544] Sec. 5459; Wood on Nuisances, Sec. 824; ... Mechem on ... ...
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