Lathrop v. Levarn
| Decision Date | 10 November 1909 |
| Court | Vermont Supreme Court |
| Parties | LATHROP v. LEVARN. |
Exceptions from Addison County Court; Zed S. Stanton, Judge.
Action by Noah Lathrop against Frank G. Levarn. There was a verdict for defendant, and plaintiff excepts. Affirmed.
Argued before ROWELL, C. J., and MUNSON, WATSON, HAZELTON, and POWERS, JJ.
Frank L. Fish and Ira H. La Fleur, for plaintiff. Davis & Russell, for defendant.
This is trespass for cutting timber on plaintiff's land in Bristol, situated on the mountain near Bristol Notch, and commonly called the "1,500-acre pitch lot." The defendant claimed that the cutting complained of was not on said lot, but west of it on his own land adjoining; but, if it was on said lot, the defendant claimed that he was not liable for it, because it was done by an independent contractor, and so the principal question was as to the location of the west line of the pitch lot. The parties agreed that the northwest corner of the pitch lot and the northeast corner of lot 37, which the defendant claimed to own, were the same, but they disagreed as to the location, the defendant claiming that it was where the Soper survey of the pitch lot located it about 1829, while the plaintiff claimed that it was at least three rods further west, where the Hazelton survey of the lot located it 20 years ago. The defendant also claimed to own lot 36, which adjoins 37 on the south, and lot 38, which adjoins it on the north. The jury returned a general verdict for the defendant, which means, as the case was submitted, that none of the cutting complained of was on the pitch lot. The jury also found specially that said corners of the pitch lot and lot 37 are located where the defendant claimed, and not where the plaintiff claimed. It appeared that the defendant had cut considerable timber between the Soper line and the Hazelton line, but that cutting, according to the verdict, was on his own land, or at least was not on the plaintiff's land. The plaintiff's evidence tended to show that he had done considerable cutting from time to time between those lines, and as far west as the Hazelton line, and he requested the court to charge on the subject of adverse possession that, if he went into possession of the pitch lot at the time and in the manner his evidence tended to show, and maintained such possession for the time and in the manner his evidence tended to show, such color of title, accompanied by such possession, gave him absolute title to such undivided portion of the pitch lot as had been so occupied by him under such color of title for 15 years prior to the alleged trespass. But the court refused to charge as requested, for that the plaintiff's testimony was, as the court recalled it, that he did not claim to recover anything west of the actual line of the pitch lot, which, the court said, would control this matter if he should have made a different claim. To the refusal of the court to charge as requested, and to the charge as given on that point, the plaintiff excepted. Though we think it questionable, we treat the request as applicable to land as far west as the Hazelton line, and consider it accordingly.
The bill of exceptions states that the plaintiff claimed to own under certain deeds that he introduced in evidence, and claimed that the deeds bounded the extent of his claim; that in whatever possession and occupancy he took of the land he intended, and claimed, to claim only to the extent of his true title wherever it might be. The pitch lot was held in common and undivided. Now, in order for possession and occupancy to set the statute of limitations in operation, they must be such in fact that in law they work a disseisin of the owner; and to do that they must have all the elements of adverse possession (Davenport v. Newton, 71 Vt. 11, 16, 42 Atl. 1087), and one of those elements, and an essential one, is an intention to claim title. If it is clear, and it is here, that there is no such intention, there can be no pretense of an adverse possession. Angell, Limit. (4th Ed.) §§ 384, 390. It is said in Ewing v. Burnet, 11 Pet. 41, 52, 9 L. Ed. 624, that an entry by one man on the land of another is an ouster of the legal possession arising from the title or not according to the intention with which it is made. If under claim and color of right, it is an ouster, otherwise it is a mere trespass. In legal language the intention guides the entry, and fixes its character.
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City of Rock Springs v. Sturm
...2 C. J. 128, 129; 1 R. C. L. 704. Further, the term "claim of right" has been treated as the equivalent of a hostile claim. Lathrop v. Levarn, 83 Vt. 1, 74 A. 331; Tiffany, supra, Sec. 504; 2 C. J. 127. The character possession may give rise to a presumption, and it is generally held that t......
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Frank W. Smith v. Vermont Marble Co.
... ... 393] them and his privies. So the question of ... intent (which is always involved in the question of adverse ... possession, Lathrop v. Levarn, 83 Vt. 1, 74 A ... 331)is frequently so decisively shown by acts or declarations ... as to preclude inquiry on the subject. Mayo v ... ...
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Smith v. Vermont Marble Co.
...party making them and his privies. So the question of intent (which is always involved in the question of adverse possession, Lathrop v. Levarn, 83 Vt. 1, 74 A. 331) is frequently so decisively shown by acts or declarations as to preclude inquiry on the subject. Mayo v. Claflin, 93 Vt. 76, ......
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E. W. Blondin v. E. D. Brooks
... ... essential to the acquisition of title by adverse possession ... Soule v. Barlow , 48 Vt. 132; s. c. 49 Vt ... 329; Lathrop v. Levarn , 83 Vt. 1, 74 A ... But it ... is claimed that though the master's findings do not show ... title in Haynes and so ... ...