Stevens v. Gordon

• Decision Date: 10 May 1895
• Citation: 33 A. 27,87 Me. 564
• Parties: STEVENS v. GORDON.
• Court: Maine Supreme Court

33 A. 27

87 Me. 564

STEVENS

v. GORDON.

Supreme Judicial Court of Maine.

May 10, 1895.

(Official.)

Exceptions from superior court, Kennebec county.

Action by Mary E. Stevens against Jonathan B. Gordon. To the judgment rendered, defendant brings exceptions, and moves for a new trial. Motion and exceptions overruled.

A. M. Goddard, for plaintiff.

Loring Farr, for defendant.

FOSTER, J. This is an action of trover for the value of a small quantity of grass grown on the side of the road running between the farms of plaintiff and defendant and which was cut and hauled away by the defendant. The title to the grass is the question in controversy.

The case comes before us on exceptions, and motion for a new trial.

The motion cannot properly be considered, inasmuch as, from an inspection of the evidence as reported, it is not full and complete, and the certificate of the stenographer shows that it is only a portion of that given at the trial.

The exceptions relate to the admissibility of certain evidence, and to statements of the presiding judge in his charge. As bearing upon these exceptions, the case shows that a range way, eight rods wide, running east and west and laid out on the plan of the original proprietors of the Kennebec Purchase, at one time separated the respective farms now owned by plaintiff and defendant.

The road which now divides these farms was laid out four rods wide, taking the north half of the range way.

The plaintiff introduced in evidence a warranty deed which bounded her land "on the south by the road" in question. By the terms of this deed, the grant extended to the center of the road. Oxton v. Groves, 68 Me. 371; Low v. Tibbetts, 72 Me. 92. Being a warranty deed, the plaintiff's title, in the absence of evidence to the contrary, is presumed to be coextensive with the grant or to the center of the road.

The grass sued for was cut on the northerly side of this road, and upon land to which the plaintiff had prima facie title by deed.

But the defendant contends that the plaintiff's grantor owned only to the north line of the road, and could not give title to the center of it, and, in support of this contention, puts in evidence two deeds in the chain of plaintiff's title, running to previous owners of the plaintiff's lot, wherein the road was excluded.

The mere exclusion of the road in these deeds does not, of itself, rebut the plaintiff's prima facie title, so as to defeat this action, for the plaintiff claims title to the land over which this road was laid by adverse possession acquired by the plaintiff's predecessor in title long prior to the laying out of the road.

The evidence shows that one Swanton, who was a predecessor in title, before the road was laid out or built, had occupied and cultivated the entire width of the present road, and that what is now the road was included in his field, and that the dividing line between him and the defendant's grantor was where the south side of the road now is, and that the wall along the north line of the road was built by Swanton after the road was constructed.

Such being the position of the plaintiff, it was allowable for her to show that Swanton, and all his successors in title, had openly, notoriously, and peaceably possessed, cultivated, and enjoyed the produce of the north side of this road—not, however, interfering with the general rights of the public—until the occurrence in 1892, which is the subject of this suit.

The plaintiff had the right to show possession, which is some evidence of title, and, in the absence of all other, is evidence enough of title. Brookings v. Woodin, 74 Me. 222.

This evidence of uninterrupted and undisputed possession, cultivation, and improvement for so long a period of years had an important bearing, from the fact that the locus is directly in front and in plain view of defendant's house. He admits...