Hopkins v. Deering

• Decision Date: 01 April 1902
• Parties: HOPKINS v. DEERING.
• Court: New Hampshire Supreme Court

52 A. 75

71 N.H. 353

HOPKINS

v. DEERING.

Supreme Court of New Hampshire. Coos.

April 1, 1902.

Exceptions from Coos county.

Trespass quare clausum by John M. Hopkins against Patrick Deering. Verdict for defendant and plaintiff excepts. Case transferred from the superior court and exceptions overruled.

The defendant claimed title to the premises in controversy by adverse possession, and that was the only question tried, except the amount of damages if the jury should render a verdict for the plaintiff. At the close of the case the plaintiff requested the court to take the question of adverse possession from the jury, and to instruct them that the acts which the defendant claimed were performed by him, or those acting under him, on lot 108, were, as a matter of law, insufficient to support his claim of title to the lot by adverse possession, and that the only question for the jury was the amount of damages to which the plaintiff was entitled. This request was denied, subject to exception, and the case was submitted to the jury under instructions to which no exception was taken.

Sullivan & Cleaveland, for plaintiff.

John E. Benton, for defendant.

REMICK, J. It appears that formal possession of the lot in controversy was delivered to William Heywood under a void levy of execution in 1863; that he afterward claimed to own it until 1880; that he lumbered more or less on the lot in the meantime; that he sold stumpage therefrom to Barton G. Towne, who logged on the lot with several men for about one month between 1867 and 1870; that one Stalbird worked with another man and horses for Heywood logging on the lot, for about 10 days in the year 1879; that during the time Heywood claimed to own it it was known as the "Heywood Lot" in the neighborhood where it was situated; that the plaintiff ceased paying taxes on the lot and exercising ownership over it in 1878, because he understood some one had acquired a tax title; that he so believed until a short time before this suit, April 2, 1900; that Heywood sold the lot to the defendant by warranty deed October 1, 1880; that from that time until the date of the suit the defendant was in continuous adverse occupation of the lot; that from 1878 until April 2, 1900, the plaintiff made no claim to and exercised no act of ownership over the lot, although he lived for many years about five miles from it.

Upon the foregoing facts we think the plaintiff's request was correctly denied, and that the question of adverse possession was properly submitted to the jury. Riley v. Jameson, 3 N. H. 23, 27, 14 Am. Dec. 325; Towle v. Ayer, 8 N. H. 57, 59; Breck v. Young, 11 N. H. 485; Bailey v. Carleton, 12 N. H. 9, 15, 37 Am. Dec. 190; Wendell v. Moulton, 26 N. H. 41; Gage v. Gage, 30 N. H. 420; Grant v. Fowler, 39 N. H. 101; Farrar v. Fessenden, 39 N. H. 268, 281; ...