Soper v. Lawrence Bros. Co.

• Decision Date: 11 December 1903
• Citation: 56 A. 908,98 Me. 268
• Parties: SOPER v. LAWRENCE BROS. CO.
• Court: Maine Supreme Court

56 A. 908

98 Me. 268

SOPER

v. LAWRENCE BROS. CO.

Supreme Judicial Court of Maine.

Dec. 11, 1903.

(Official.)

Exceptions from Supreme Judicial Court Kennebec County.

Trover by Luther H. Soper to recover for the conversion of logs cut by the Lawrence Bros. Company on township No. 3, range 6 (Bingham's Purchase) west of the Kennebec river, in Somerset county. Verdict for defendant. Motion and exceptions by plaintiff overruled.

Argued before WHITEHOUSE, STROUT, SAVAGE, POWERS, and SPEAR, JJ.

Taber D. Bailey, for plaintiff. Orvllle D. Baker and A. K. Butler, for defendant.

WHITEHOUSE, J. This is an action of trover to recover the value of a large quantity of logs alleged to have been cut by the defendant company on township No. 3, range 6 west of the Kennebec river, in Somerset county. The case comes to this court on the plaintiff's motion to set aside a verdict in favor of the defendant, and on exceptions to the ruling of the presiding judge.

The defendant company admitted that it had cut logs on the township in question within six years prior to the date of the writ, and claimed that it had a legal right so to do, by reason of its ownership in fee of the south half of the town, and by virtue of permits from the owners of the north half. It was also contended in behalf of the defense that the plaintiff's action was barred by the statute of limitations enacted in 1895, entitled "An act to make state tax sales more effectual." Pub. Laws 1895, p. 192, c. 162 (Rev. St. 1903, c. 10, §§ 153, 156).

It was admitted that township No. 3, range 6, in question, pertained to the "Bingham Purchase," and that the title to the whole of it was at one time in William Bingham. The plaintiff claimed to own 27/72 of the township in common and undivided, and, deriving title from the commonwealth of Massachusetts, introduced deeds conveying to him several fractional interests; showing, in the aggregate, a record title to about one-third of the town.

The defendant derived title to the south half of the town from A. and P. Coburn through several mesne conveyances, all deeds of warranty duly recorded. October 1, 1872, A. and P. Coburn conveyed the entire township to A. and W. Sprague by deed of warranty recorded October 8, 1872. September 1, 1873, A. and W. Sprague conveyed the whole township to the Coburn Land Company by deed of warranty recorded September 19, 1873, and as a part of the same transaction the Coburn Land Company reconveyed the township to A. and P. Coburn by deed of mortgage, with covenants of warranty, which was recorded October 31, 1873. This mortgage was duly foreclosed the following year, and thus, by this series of recorded deeds of warranty, A. and P. Coburn claimed to have acquired full title to the entire township; and in 1880 Abner Coburn, acting for himself and the heirs of his brother Philander, conveyed the south half of the town to Wildes and Snow, by deed of warranty duly recorded August 16, 1880, in consideration of $33,000. October 27, 1885, the south half was conveyed by Wildes and Snow to Lawrence Bros., and by Lawrence Bros, to the defendant company March 13, 1893; both by deeds of warranty duly recorded. The Coburns and their heirs and devisees still retain the title acquired by them to the north half of the town.

In rebuttal the plaintiff introduced further evidence tending to show that at the time A, and P. Coburn conveyed the whole town to A. and W. Sprague, in 1872, by deed of warranty, they only had a recorded title to about one-fourth of it.

Thus, while this action of trover was brought primarily to recover damages for the conversion of the logs described in the writ, the decision of the cause necessarily involves the question of title to the township from which the logs were taken.

1. Section 1, c. 162, p. 192, Pub. Laws 1895, to which reference has been made, reads as follows: "When the state has taxed wild land, and the State Treasurer has deeded it, or part of it, for nonpayment of tax, by deed purporting to convey the interest of the state by forfeiture for such nonpayment and his records show that the grantee, his heirs or assigns, has paid the state and county taxes thereon, or on his acres or interest therain as stated in the deed, continuously for the twenty years subsequent to such deed; and when a person claims under a recorded deed describing wild land taxed by the state, and the State Treasurer's record shows that he has, by himself or by his predecessors under such deed, paid the state and county taxes thereon, or on his acres or interest therein as stated in the deed, continuously for twenty years subsequent to recording such deed; and whenever, in either case, it appears that the person claiming under such a deed, and those under whom he claims, have, during such period, held such exclusive, peaceable, continuous and adverse possession thereof as comports with the ordinary management of wild lands in Maine, and it further appears that during such period, no former owner, or person claiming under him, has paid any such tax, or any assessment by the county commissioners, or done any other act indicative of ownership, no action shall be maintained by a former owner, or those claiming under him, to recover such land, or to avoid such deed, unless commenced within said twenty years, or before January one, nineteen hundred. Such payment shall give such grantee or person claiming as aforesaid, his heirs or assigns, a right of entry and seizin in the whole, or such part, in common and undivided, of the whole tract as the deed states, or as the number of acres in the deed is to the number of acres assessed."

But section four (page 193) of the act declares that "this act shall not apply to actions between co-tenants, nor to actions now pending in court, nor to those commenced before January one, nineteen hundred."

It satisfactorily appears from the testimony that all of the conditions specified in section 1, applicable to the facts of this case, were fulfilled by the defendant and its predecessors in title respecting the south half, and by the defendant's licensors and their predecessors as to the north half, of the township in question. They claimed under recorded deeds describing wild lands. The record of the state treasurer shows that they paid the taxes. They held for more than 20 years such exclusive, peaceable, continuous, and adverse possession of the township as comports with the ordinary management of the wild lands in Maine; and during that time no former owner, or person claiming under him, paid any tax or assessment, or did any other act indicative of ownership. The verdict of the jury establishing these facts was clearly warranted by the evidence.

But the plaintiff contended that as there was no adverse possession of the township at common law during this period, and as he only claimed to own a fractional part of it, the Coburn heirs and the defendant company must be tenants in common with him, and hence, by the express terms of section 4, the act of 1895 did not apply to this case.

The presiding justice overruled this contention "because the Coburn Land Company in 1873 had a deed, which was put upon record on the 19th of September, 1873, not of a fractional interest, but of the whole town; and they have claimed, not as co-tenants with somebody else, but they have claimed to be the exclusive owners of the whole town up to the time that, in 1880, they divided it, and sold the whole of the south half of the town. And the Lawrence Bros, and their predecessors, the Wildes, did not claim, did not have a deed of, a fractional interest—undivided interest. They were not in possession, certainly, claiming to be tenants in common with anybody else, because their deed was of the whole of the south half; and they claim, it is said, to be the owners of the whole of the south half. Now, if they had a deed of a fractional interest—undivided interest—of the south half, or if the deed to the Coburns, in the first instance, or the Coburn Land Company, had been of an undivided interest in it, then the contention of the learned counsel for the plaintiff would he applicable, and this statute would not affect his client's right to maintain an action."

It is the opinion of the court that this ruling was correct it gives to the statute a construction manifestly in harmony with the intention of the Legislature. It had been repeatedly held by this court that title to wild lands could not be acquired by adverse possession by merely taking a deed of a township or tract of timber land, running lines around it, keeping off trespassers, and making occasional lumbering operations upon it for a period of 20 years. The exercise of such acts of ownership had not been deemed sufficient or effectual to establish title by disseisin of the true owner. Chandler v. Wilson, 77 Me. 76; Hudson v. Coe, 79 Me. 83, 8 Atl. 249, 1 Am. St. Rep. 288. Thus, while title to farming land might be acquired by 20 years of such "adverse" possession as comports with the ordinary management of that kind of land by the owner, title to wild lands could not be acquired by 20 years of the qualified possession above described, although it was ordinarily the only kind of occupancy of which wild lands are capable. It was the obvious purpose of that portion of the statute of 1895 applicable to this case to extend the same relative protection to possessory titles to wild lands that all other lands enjoyed under the law. It declares that "when a person claims under a recorded deed describing wild lands," etc., and has "held such exclusive, peaceable, continuous and adverse possession thereof as comports with the ordinary management of wild lands in Maine," no action shall be maintained to recover the land if all the other requirements of the act ar e fulfilled.

The provision of section 4 that the "act shall not apply to actions between co-tenants" must be considered in connection with the language of section 1, and...