Goodall v. Drew

• Decision Date: 09 February 1912
• Citation: 82 A. 680,85 Vt. 408
• Parties: GOODALL v. DREW.
• Court: Vermont Supreme Court

82 A. 680

85 Vt. 408

GOODALL

v. DREW.

Supreme Court of Vermont. Caledonia.

Feb. 9, 1912.

Exceptions from Caledonia County Court; Alfred A. Hall, Judge.

Trespass quare clausum fregit by Inez Goodall against B. F. Drew. From a judgment for defendant, plaintiff brings exceptions. Reversed and remanded.

Argued before ROWELL, C. J., and MUNSON, WATSON, HASELTON, and POWERS, JJ.

Dunnett & Slack and Ira W. Thayer, for plaintiff.

Harland B. Howe and Herbert W. Hovey, for defendant.

ROWELL, C. J. This is trespass for entry on land in St. Johnsbury East village. Plea, the general issue with notice of special matter in defense, including license and possessory title in the defendant's grantor, Jane Barker, w"ho deeded the locus to him in August, 1909, which is a strip of land about 11 feet wide extending across the southerly side of a small parcel of land lying easterly of and adjoining the main highway leading through said village, bounded westerly by said highway, northerly by the store of Mrs. Barker, easterly by Joseph Webster's land, and southerly by the defendant's other land. On October 22, 1883, the plaintiff owned the above-bounded piece of land, the Barker store, and the Webster premises, and was in lawful possession thereof. On that day she conveyed the Webster premises to Henry F. Hardy by warranty deed, including a right of way across said piece of land, therein called the "common," for the purpose of passing to and from the same, and the right to have the "common" kept open and unincumbered by buildings or otherwise. On December 30, 1884, the plaintiff conveyed said store to Mrs. Barker. The court held that the plaintiff still had the record title to the "common," including the locus, and has title thereto, unless Mrs. Barker has acquired title thereto by adverse possession. In support of his claim of possessory title, the defendant showed by Mrs. Barker that she claimed to own the "common" ever after she bought the store; that shortly after she bought the store, she leased it to one Estabrook, and to several successive tenants named; that none of these tenants had a written lease; and that at the time they took possession of the store she said nothing to any of them about using the "common" nor any part of it, nor about their right to use it in connection with the store.

This being so, the plaintiff claims that it was error to permit Mrs. Barker to testify for what purposes and to what extent her tenants had used the "common," because the privity between her and her tenants was limited to the store, and did not extend to the "common," and so the acts of the tenants upon the "common" were mere trespasses, and cannot be tacked together to make continuity of possession by her. But that continuity could be kept UP by her intention if her tenants acted under her authority given at times other than those at which they took possession; and, as it does not appear that they did not, it must be presumed in favor of the judgment that they did. In this view it was not error to allow her to testify that she made no...