Hitchings v. Morrison

• Decision Date: 07 June 1881
• Citation: 72 Me. 331
• Parties: GEORGE F. HITCHINGS v. JOHN W. C. MORRISON.
• Court: Maine Supreme Court

72 Me. 331

GEORGE F. HITCHINGS v. JOHN W. C. MORRISON.

Supreme Judicial Court of Maine.

June 7, 1881

ON MOTION to set aside the verdict.

Writ of entry to recover a lot of land in Portland.

The facts are stated in the opinion.

Webb and Haskell, for the plaintiff.

Manifestly the conveyances give the demandant a title to the land demanded, and the tenant can prevail only upon proof of a disseizin by himself of the demandant for at least twenty years.

The law of this State is said to be that " a man claiming title only to a specified line, capable of being ascertained cannot, by ignorantly having possession up to another line acquire a title by disseizin to land lying between the two which he does not intentionally claim." Worcester v Lord, 56 Me. 265; Dow v. McKenney, 64 Me. 138.

The line of the tenant's south-easterly limit was fixed in his title deed as sixty feet from and parallel to the Gould land. This line is capable of being ascertained upon the surface of the ground without mistake or chance for question, and its actual location was, in fact, not in dispute at the trial. The Gould line was well known and recognized by both parties.

The tenant testified, that he moved on to the premises in May, 1856; that he did not then take any steps to ascertain the point at which sixty feet from the Gould line would terminate; that the first time he learned that his deed did not reach up to the fence (which was sixty-six feet beyond the Gould line) was a year ago, and that prior to that time he had the impression that the fence was the line, and that whatever he did was done under that belief; that after he moved upon the premises he discovered a sink spout emptying on the land, and told Jose he should charge him a nominal fee for the same, at which Mr. Jose did not seem pleased; that Jose did not promise or agree to cut it off.

H. N. Jose, called by tenant, testified: " At the time I sold tenant his land, I did not know whether the lot, as inclosed, contained more than sixty feet. I sold sixty feet. From that time to the time of this controversy, I never knew where, on the face of the earth, sixty feet from the Gould line would be. I made no point about the fences, as I owned the whole property. I put no stake down at the time I sold to Morrison."

Jose being the owner of one hundred and sixty feet southeast of the Gould land, by selling sixty feet thereof to the tenant, did not thereby surrender or abandon his possession of the remaining one hundred feet, but continued it, both in fact and in law, and the demandant, claiming title thereto under him, should have the same adjudged in his favor in this action.

Ardon W. Coombs, for the defendant.

VIRGIN J.

In 1823, Sarah T. Chase conveyed to Nathan Babcock a rectangular parcel of land, situated on the west side of Green street, in Portland, four rods wide on the street and extending back nine and one-half rods, with a dwelling house upon it. On the south line of the lot was a fence and two or three feet north of the fence, a row of ash trees now standing.

In 1825, John Mussey conveyed to Babcock another rectangular lot, adjoining the former on the south, and separated therefrom by the fence, with a frontage of sixty feet and extending as far back as the other.

In 1845, Benj. Dodge conveyed to Barnabas Palmer another lot adjoining the second on the south, having a frontage of thirty-three feet.

In April, 1856, H. N. Jose, having previously obtained the title to all these parcels of land, conveyed to the defendant a part of the first, to wit, sixty feet in width, measuring from its northern boundary on the street, southerly, thus leaving the strip of land between the southern boundary of the land thus conveyed, and the fence, six feet in width and one hundred and fifty-seven feet in length, not covered by the deed. Subsequently, the title to the remainder of the three lots, including the six feet strip, came by sundry mesne conveyances to the plaintiff, who now seeks to recover possession of the narrow strip.

The defendant claims title to the land in controversy by disseizin based upon adverse possession of more than twenty-two years prior to the commencement of the plaintiff's...