Storrs v. Feick
| Decision Date | 27 September 1884 |
| Citation | 24 W.Va. 606 |
| Parties | STORRS v. FEICK. |
| Court | West Virginia Supreme Court |
Submitted Jun. 23, 1884.
1. Title to land gives to the owner constructive possession of it so as to enable him to maintain trespass, unless there is an adverse possession or right in some other person by contract or operation of law to the exclusion of the owner. But the adverse possession that will prevent such action by the owner, must be such as entirely takes away the constructive possession from the owner and not the intrusion of a mere wrong-doer. It must be such a possession as will constitute a disseizin of the owner. (p. 608.)
2. It is error for the court, in giving instructions to the jury to single out certain facts and instruct them that, if they are true, they must find for either party in accordance with such facts, when there are other facts in the case bearing on the subject tending to establish a different conclusion. (p 613.)
The facts of the case appear in the opinion of the Court.
Cole & Miller for plaintiff in error.
C D. Merrick for defendant in error.
Trespass on the case brought in June, 1880, by Cornelia Storrs and Richard Storrs, her husband, in the circuit court of Wood county against Adam Feick and Fritz Nelly to recover damages for cutting and removing timber from the land of the female plaintiff. Issues were joined on the pleas of not guilty and liberum tenementum and a trial by jury had thereon resulting in a verdict of one hundred and eighty dollars for the plaintiffs. The defendants moved the court to set aside the verdict and grant them a new trial for the reason that the court improperly gave to the jury certain instructions and refused to give others prayed for by the defendants. The court overruled said motion, and on April 26, 1882, rendered judgment upon the verdict for the plaintiffs, and the defendants excepted and brought this writ of error.
It appears from the bill of exceptions that Joseph Sims obtained from the commonwealth of Virginia a grant, dated February 20, 1876, for four thousand acres of land lying then in Harrison county, but now in Wood and Ritchie counties; that the legal title to this land after several mesne conveyances was vested in the female plaintiff by deed dated May 6, 1868, duly recorded in Ritchie county; that J. N. Camden being the owner of a tract of two hundred and four acres of land in Wood county adjoining said four thousand acres, conveyed the same to the defendant, Feick, by deed dated January 4, 1878, and duly recorded in Wood county; that the grant for the two hundred and four acres is junior to that for the four thousand acres, and that the line between these two tracts when properly located by the calls is the common line of both tracts; that prior to the year 1878 there had been no actual possession of either of said tracts of land, but in 1878 the defendant entered upon the two hundred and four acres under his deed and soon thereafter cleared and fenced thereon some sixteen or eighteen acres, but only about eight or ten rods of said improvement extended over the line claimed by the plaintiffs, and that said defendant had cut and hauled timber from other portions of the land claimed by the plaintiffs; that the defendant, Nelly, was the proprietor of a saw-fmill which he had employed the defendant, Feick, to conduct on the shares in Nelly's name, and that the timber for which this action was brought was cut by Feick, taken to said mill and sawed and the lumber therefrom sold by Nelly. After the jury had heard the foregoing and other evidence, the defendants moved the court to give the jury three instructions which it is unnecessary to state in full, but the purport and effect of which are as follows:
If the jury believe from the evidence that at the time of committing the alleged trespass in the plaintiffs' declaration mentioned, the plaintiffs were not in the actual possession of the tract of four thousand acres, and that at that time the defendant, Feick, was in the actual possession of the land in controversy, claiming it under color of title, then the plaintiffs are not entitled to recover in this action.
The court sustained the objection of the plaintiffs to said instructions and in lieu thereof gave to the jury the following:
" The plaintiffs in order to maintain their action must prove that at the time the alleged trespass was committed, they were either in the actual or constructive possession of the land on which the same was committed.
The plaintiffs in error claim that the circuit court erred in refusing their said instructions and in giving the instruction it did in lieu thereof. In view of the special facts in this case it seems to me the error here complained of presents but a single legal enquiry: Can the owner of land having only the constructive possession maintain trespass against a person in the actual possession but having no title to the land or right to the possession?
In order to maintain the action of trespass the plaintiff must prove possession actual or constructive of the land or a part of it, under a deed for the whole; or if the land is unoccupied he must prove that he has title to it-- Smith v. Wilson, 1 Dev. & Batt. 40; Gillison v. Charleston, 16 W.Va. 282.
Where a disseizor takes possession and excludes the disseizee entirely therefrom, the former can alone recover for a direct injury to the land; but the disseizee may before his re-entry maintain trespass against the disseizor for disseizin itself--3 Bla. Com. 210; Cooke v. Thornton, 6 Leig 8, 17.
There is, however, a difference between a disseizin and a trespass. A disseizin cannot take place except by the actual and exclusive possession of the disseizor; but if a person enters upon a part of a tract of land without authority from the owner and without color of title to the whole or the part so entered upon, he will be a trespasser and not disseizor and trespass may be maintained against him by the owner-- Crowell v. Beebe, 10 Vt. 33.
Title to land gives to the person who has it constructive possession so as to enable him to maintain trespass, unless there is an adverse possession or right in some one by contract or operation of law to the exclusion of the owner; though formerly, a right of property and a mere right of entry were not enough for this purpose, but the party must have had actual possession-- Stearns v. Palmer, 10 Metc. 32; 6 Wait's Ac. & Def. 65 and cases cited.
In Snider v. Meyer, Judge Berkshire, in delivering the opinion of the Court says: " However it may have been formerly doubted, it has been long and well established, that trespass to real estate may be maintained upon constructive as well as actual possession, and that a party having the title and right of possession, in the absence of any adverse possession, by legal intendment, has such constructive possession in law and may maintain trespass for an injury done to such real estate." 3 W.Va. 198.
The adverse possession here spoken of does not mean the mere invasion of a wrong-doer, but the actual, exclusive and continuous possession of one under a bona fide claim of title. It is certainly not pretended that a trespasser, by the mere act of trespassing upon the lands of the owner, can immediately and against the will of the owner, obtain such a possession as will prevent the owner from maintaining trespass. If such were the law, the trespass itself if continuous would bar the right of the owner to maintain his action--2 Rob. (new) Pr. 636. It is certainly true, that a person who enters upon land without any color of title, will be held to be in possession of no more than he actually occupies-- Kincheloe v. Tracewells, 11 Gratt. 587. And even in such case in order to protect himself in the action of trespass, he must show that he had a prior possession of the exact places in which the alleged trespass was committed. The act...
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