Warren v. Bowdran

• Citation: 156 Mass. 280,31 N.E. 300
• Parties: WARREN v. BOWDRAN.
• Decision Date: 09 May 1892
• Court: United States State Supreme Judicial Court of Massachusetts

156 Mass. 280

31 N.E. 300

WARREN v. BOWDRAN.

Supreme Judicial Court of Massachusetts, Middlesex.

May 9, 1892

COUNSEL

C.H. Hudson, for plaintiff.

Charles J. McIntire, for defendant.

OPINION

LATHROP, J.

This is a writ of entry, dated April 9, 1890, to recover a strip of land on Maple street, in Somerville. The demanded premises and the adjoining lands were in 1866 owned by one Hadley. In May of that year, Hadley conveyed to the tenant a lot of land on Maple street, which did not include the demanded premises. In May, 1868, Hadley conveyed to one Lane, the defendant's predecessor in title, a lot of land on Maple street, by a deed which described the land as bounded on one side by the land of the tenant, and on the opposite side by the land of one Connors. It was admitted that in 1868, and soon after the conveyance to Lane, the tenant built a fence extending from Maple street along the southeasterly line of the demanded premises to the boundary line in the rear, and thence along the rear line and the rear line of the land conveyed to him by Hadley. This fence was maintained by the tenant from that time until the bringing of the writ in this case,--a period of more than 20 years. There was evidence that, before Hadley conveyed to Lane, he pointed out to the tenant the line on which the fence was afterwards built. But this evidence was contradicted, and we must assume, for the purposes of this decision that by building the fence the tenant inclosed land which had been conveyed to Lane. At the time the fence was built, Lane was the owner and occupant of the land conveyed to him by Hadley, and he testified that he objected to the line upon which the tenant put the fence that "there was a wordy dispute over the matter, but the tenant insisted, and put the fence on the line where it has ever since been maintained." This testimony was uncontradicted. The jury returned a general verdict for the tenant, but found specially that, at the time the tenant built the fence, he did not honestly believe that, by the deed of Hadley, he acquired a title to the land up to the line of the fence.

The principal question which has been argued is that involved in the special finding of the jury, namely, whether the taking possession of another man's land, with intent to make it the taker's land by 20 years' possession will constitute a claim of title. Under the instructions of the court the jury must have found by their general verdict that the tenant's possession of the demanded premises was adverse, and not permissive; that it was actual; that it was visible, notorious, and exclusive; that it was continuous and was under a claim of title. These terms were also fully explained to the jury. It is difficult to see how the fact that the tenant did not honestly believe that he had title to the land inclosed has any material bearing on the case. Pub.St. c. 196, § 1, provides that "no person shall commence an action for the recovery of lands, nor make an entry thereon, unless within twenty years after the right to bring such action or to make such entry first accrued, or within twenty years after he, or those from, by, or under whom he claims have been seised or possessed of the premises, except as is hereinafter provided." The subsequent sections contain various exceptions to this general rule, but none of them applies to the case at bar. Neither the demandant nor his predecessor in title was seised or possessed of the premises within 20 years from the date of the writ. The principal case...