Kimball v. Hilton

• Decision Date: 03 December 1898
• Citation: 42 A. 394,92 Me. 211
• Parties: KIMBALL v. HILTON et al.
• Court: Maine Supreme Court

42 A. 394

92 Me. 211

KIMBALL

v. HILTON et al.

Supreme Judicial Court of Maine.

Dec. 3, 1898.

(Official.)

Exceptions from supreme judicial court, Lincoln county.

Action by Arietta Kimball against Charles S. P. Hilton and another. Verdict for plaintiff. Prom an order denying a motion for a new trial, and from the judgment, defendants except Motions and exceptions overruled.

Defendants pleaded nul disseisin as to a part, estoppel as to a part, and disclaimer as to a part. Plaintiff demurred to defendants' plea of estoppel. The demurrer was joined by the defendants, and was sustained by the court.

The jury returned a general verdict for the plaintiff, whereupon the defendants filed a motion for new trial on the evidence reported by the presiding justice, and also filed exceptions to certain rulings of the presiding justice in matters of law, and subsequently, at that and the next succeeding term, filed motions for a new trial for newly-discovered evidence.

Declaration: In a plea of land, wherein the said plaintiff demands of the said defendants a certain lot of land, with the buildings thereon, situated in said Boothbay, and bounded and described as follows, to wit: Beginning at the northeast corner of land of Ella B. Kimball, on the westerly side of Back river, so called; thence northeasterly, by said river, 60 rods, more or less, to a stone wall; thence northwesterly, by said stone wall, and a board fence, to the southerly edge of the Knickerbocker Ice pond, and thence to a maple stump; thence northwesterly, about 40 1/2 rods, to a large pine stump at the end of a fence; thence westerly, in a straight line, to a spruce tree on the east bank of the Sheepscot river; thence southerly, by said river, to land of Manly Campbell; thence easterly, by said Campbell's land, to the westerly edge of said Knickerbocker Ice pond; thence southerly, by land of said Campbell, and land of Georgia A. Newcomb, and land of S. C. Hodgdon, and other land of Manly Campbell, to the north line of land of Ella B. Kimball; thence easterly, by said Ella B. Kimball's north line, to the point of beginning, etc.

Plea, general issue.

"And for brief statement of special matter of defense the defendants say that as to so much of the demanded premises as set forth in the plaintiff's writ as lies northerly of a line beginning at a spruce tree, marked on four sides, standing on the westerly side of Barter's Island, in Sheepscot river, in Boothbay, in said county, and being the northwest corner of land of said Arietta Kimball, and formerly of Sarah Kimball, deceased; thence running easterly, by said last-named land, fifty-eight rods, to a pine stump; thence southerly, on a straight line, to a point where an ash tree formerly stood, at the end of a stone wall on the bank of Back river, so called, in said Boothbay,—they were in the rightful possession of the same, and that the said plaintiff ought not to have or maintain her action against them, because they say that they, the said Charles S. P. Hilton and Alfreda H. Hilton, on the day of the purchase of the plaintiff's writ, and for more than twenty years then last past, were, and still are, lawfully seised and possessed of the same, and that the said Arietta Kimball then and there unjustly and without judgment disseised the defendants, and put them out of the possession thereof.

"And as to so much of the demanded premises as lies southerly of the line aforesaid, part and parcel of the demanded premises, they say that they have nothing, and at the time of the purchase of the plaintiff's writ had nothing, nor at any time before or since had anything, nor claim, nor ever heretofore claimed, any title or interest therein, and the said defendants wholly disclaim all right, title, interest, and claim of, in, and to the same."

A portion of a plan of the premises in dispute is presented:

A C D E B line claimed in demandant's writ.

A B (straight) line claimed in tenant's disclaimer.

Exceptions: The defendants pleaded the general issue, with a brief statement setting up, inter alia, an estoppel by the judgment of this court at nisi prius, April, 1893, in an action of trespass quare clausum, wherein the present defendants were plaintiffs, and the present plaintiff, with others, were defendants and also claiming title in the land then and now in controversy, as alleged in defendants' pleadings; and disclaiming as to the residue of the premises demanded by the plaintiff in this action.

To so much of the brief statement as relates to the alleged estoppel, the plaintiff demurred. The demurrer was duly joined, and was sustained by the court,

The defendants offered in evidence the record of the former judgment and the plan made and returned by Frederick Danforth, the surveyor appointed by the court in the former action, both of which were excluded by the court. But the court allowed Mr. Danforth's plan, as well as an ex parte plan made by J. H. Blair in behalf of the plaintiff, to be shown to the jury as chalks for the purpose of illustration, and upon an equal footing.

To the rulings of the court in sustaining the demurrer, and in excluding the evidence offered as aforesaid, the defendants excepted.

The facts are sufficiently stated in the opinion.

Argued before EMERY, HASKELL, WHITEHOUSE, STROUT, and SAVAGE, JJ.

W. H. Hilton, for plaintiff.

Geo. B. Sawyer, for defendants.

SAVAGE, J. Real action. The tenants plead nul disseisin, and, under a brief statement, disclaim as to a portion of the demanded premises, and as to the remainder claim an estoppel by virtue of a former judgment in an action of trespass quare clausum, in which these tenants were plaintiffs, and this demandant and others, her agents and servants, were defendants, and in which the then plaintiffs recovered judgment upon a verdict of guilty. The brief statement also alleges that in the former action this demandant, then defendant pleaded that the title and right of possession of the locus where the alleged acts of trespass complained of were committed were in her.

The demandant demurred to so much of the brief statement as set up an estoppel, and the demurrer was sustained. During the trial, touching the same subject-matter, the tenants offered the record of the former judgment, which was excluded. They also offered the plan made and returned by the surveyor appointed by the court in the former action, which was likewise excluded. To all these rulings the tenants excepted.

Exceptions: We may consider at the same time the rulings upon the question of estoppel, both the sustaining of the demurrer and the exclusion of the record, for an estoppel by judgment may be specially pleaded in bar, or it may be shown in evidence under the general issue. It is immaterial which. Cunningham v. Foster, 49 Me. 68; Sturtevant v. Randall, 53 Me. 149; Walker v. Chase, Id. 258; Whiting v. Burger, 78 Me. 287, 4 Atl. 694. Both of these exceptions raise the same question, and that is, is the judgment in the action of trespass qu. cl. a bar by way of estoppel to the real action? We think it is not.

In order that the former judgment shall operate as a bar, it must appear that the very question in issue here was in issue and determined there. But the issues in actions of trespass qu. cl. and in real actions are vitally distinct. In a real action the Issue is seisin or title. In trespass qu. cl. it is rightful possession. The action lies for an injury to the possession. It is called a "possessory action." Lawry v. Lawry, 88 Me. 482, 34 Atl. 273. The gist of the action is the breaking and entering; that is, the invasion of a rightful possession. Hunnewell v. Hobart, 42 Me. 565. As the law writers say, "If a man's land is not surrounded by an actual fence, the law encircles it with an imaginary inclosure, to pass which is to break and enter his close." The mere act of breaking through this imaginary boundary constitutes a cause of action. Add. Torts, § 375. It is a violation of the right of possession. To sustain trespass qu. cl., proof of possession is essential. Abbott v. Abbott, 51 Me. 575; Jones v. Leeman, 69 Me. 489; Butler v. Taylor, 86 Me. 17, 29 Atl. 923. But proof of title is not essential. Moore v. Moore, 21 Me. 350; Brown v. Ware, 25 Me. 411; Hunt v. Rich, 38 Me. 195. The owner of land may not be in possession of it while one may be in the rightful possession who is not the owner. Possession is presumed to be in the lawful owner. Griffin v. Creppin, 60 Me. 270. But the contrary may be shown. The fact, and the...