Tompkins v. Wyman

• Decision Date: 09 January 1875
• Citation: 116 Mass. 558
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Orlando Tompkins & others v. Isaac C. Wyman

116 Mass. 558

Orlando Tompkins & others v. Isaac C. Wyman

Supreme Court of Massachusetts

January 9, 1875

Argued November 5, 1874

Essex. Petition under the Gen. Sts. c. 134, §§ 49, 50, to compel the respondent to bring an action to try his alleged title to a certain parcel of land upon the Great Neck in Marblehead. The respondent claimed to own a portion of the said land, and disclaimed all title to the residue.

At the hearing in this court, before Colt, J., the petitioners put in evidence a deed of quitclaim from George F. Odiorne to them of the premises described in their petition, dated February 12, 1872, with testimony which, in the judgment of the presiding judge, proved that the petitioners entered upon the premises under the deed and "expended large sums of money in surveying and lotting up the premises and building roads through the same in various directions, and in this manner were in possession of the same from 1872 up to the time of the filing of the petition."

The respondent then introduced evidence tending to show that Marblehead Neck was originally owned by commoners, so called that in October, 1638, grants of small portions of the Neck were made to various persons, and that in January, 1722-3 the bounds of the lots so granted were established, and the remainder of the Neck divided among the commoners by metes and bounds, and was all thereafter held in severalty by the proprietors, but improved in common as a common pasture by them, they acting as a quasi corporation, electing officers and having a hayward who had charge of the pasture generally and of the turning of the cattle there pastured on and off the Neck; that all the cattle were turned on and off through a gateway at the southwest end of the Neck, the cattle having the whole run of the Neck excepting the land which was then fenced off and cultivated on the northwestern side of the Neck.

It appeared also that the proprietors were entitled to pasture in proportion to the land owned by them, and that the premises were so improved up to 1845, at which time the proprietors ceased to hold meetings, most of them having sold their land to Ephraim Brown, through whom the petitioners claim. That, from 1820 to 1845, those under whom the respondent claimed were of the said proprietors, and so improved the land claimed by the respondent; that subsequently to 1845 and up to 1872 the respondent and those under whom he holds improved the land in the same manner as before, to wit, by pasturing cattle thereon. The respondent also introduced evidence tending to show record title in himself to the lands claimed in his answer, all the proofs of title being of earlier date than February 12, 1872.

It also appeared in evidence that on February 12, 1872, a deed of the entire premises described in the petition was made by William Fabens and others, trustees under the will of Ephraim Brown to George F. Odiorne, and a mortgage given back to them by Odiorne to secure a part of the purchase money, in which it was provided, among other things, that in the event of the respondent establishing his title to a part of the granted premises, a proportionate part of the money secured by the mortgage should be deemed to have been paid; also that a warranty deed of the same date was made by the cestuis que trust under the said will to Odiorne, in which they granted all the premises described in the petition, and among other things, covenanted to warrant the same against the lawful claims and demands...