Webber v. Barker Lumber Co.

• Decision Date: 08 April 1922
• Citation: 116 A. 586
• Parties: WEBBER et al. v. BARKER LUMBER CO. et al.
• Court: Maine Supreme Court

116 A. 586

WEBBER et al.

v. BARKER LUMBER CO. et al.

Supreme Judicial Court of Maine.

April 8, 1922.

Exceptions and Motion from Supreme Judicial Court, Penobscot County, at Law.

Action by Charles P. Webber and others against the Barker Lumber Company and another. Verdict for defendants, and plaintiff excepts and moves for new trial. Verdict set aside, new trial granted, and exceptions not considered.

Argued before CORNISH, C. J., and SPEAR, HANSON, PHILBROOK, MORRILL, and DEASY, JJ.

Ryder & Simpson, of Bangor, for plaintiffs.

William H. Powell, of Old Town, and George H. Morse, of Bangor, for defendants.

PHILBROOK, J. This is an action in trover to recover the value of trees cut and removed by the defendants on and from land to which plaintiffs claim title. The defendants justified on the ground that their grantors of the stumpage had acquired title to the same land by adverse possession. The verdict was for the defendants, and the case is before us upon plaintiffs' motion for a new trial, based upon the customary grounds, also upon exceptions to admission of certain testimony, and refusal, in the charge to the jury, to give instructions as requested by plaintiffs.

The Motion.—The disputed tract of land is the south half of lot 9, range 10, in the town of Greenfield. According to field notes and plans introduced by the plaintiffs, this south half of lot 9, range 10, the north half of lot 9, range 10, and all of lot 10, range 10, was designated by Strong's survey, made in 1809, as lot 34. According to the same survey, all of lot 9, range 10, was known as the west division of lot 34, and all of lot 10, range 10, was known as the east division of lot 34. These two divisions are of the same length running from north to south, but the east division, running from east to west, is broader than the west division. The two divisions make a rectangle which is bounded on the north by the Hallowell tract, on the east by lot 35, on the south by lots 46 and 45, and on the west by lot 33. Through a long line of conveyances, beginning with a grant from the commonwealth of Massachusetts, the plaintiffs claim record title to this rectangular lot of land, and we are of opinion that they have proved their record claim.

While the plaintiffs were thus substantiating their own record title, they also introduced conveyances from the same original source showing that the south half of lot 33, lying next west of lot 34, in 1853 came by various deeds to George R. White, who occupied said south half of lot 33 from the latter date until his death in 1885. He died intestate and the lot was then occupied by his widow and their son, G. H. White, who was generally known as Hollis White. In 1896, Hollis White, after his mother's death, obtained from the other heirs of his father a quitclaim deed of their interest in the said premises. Hollis White continued to occupy this half lot until his death on April 30, 1916. During this occupancy of the south half of lot 33 by George R. White, by his widow and Hollis, and lastly by Hollis, from 1853 to 1916, the defendants claim that by adverse possession the Whites also acquired title to the disputed tract, viz., the south half of lot 9, range 10, which, as we have seen, is a rectangular piece of land carved out of the southwest corner of the larger rectangle known as lot 34 to which plaintiffs have record title.

About a year before his death. Hollis sold the stumpage on the disputed tract to Henry L. Barker and John Costley, giving a deed therefor, and later these grantees gave a verbal permit to the defendants to cut and remove this stumpage, which cutting and removal was done, resulting in the suit at bar.

The controversy between the parties, therefore, is whether the Whites did such acts upon the disputed tract, or otherwise exercised such occupancy and control thereover, as would give them a title by adverse possession which would outweigh the record title of the plaintiffs.

In the abstract what acts of dominion will result in creating title by adverse possession is a question of law. In this field the powers of the court are primary and plenary. Whether those acts were really done, and the circumstances under which they were done, raise questions of fact. In this field the powers of the jury, in the first instance, are primary and plenary. The results from this exercise of jury power should be reversed by the court only when the jury has plainly misunderstood the law applicable to the case, or when they have exercised their power in a manner which plainly shows that they have been moved upon by bias or prejudice.

The record, which includes a very large number of exhibits, is quite voluminous, and a complete analysis of the testimony would be of small interest to any one except the parties. Only a portion of the charge to the jury is presented for our inspection. We must assume that the instructions of the presiding justice which are not made the subject of exceptions, and hence not printed in the record, were correct statements of the law governing the case.

As usual in cases of this kind, the parties differ, not only as to the facts, but also, if the facts are established, as to their effect upon the legal question of gaining title by adverse possession.

1. Maintaining Fences.—The plaintiffs claim that to make out adverse possession by maintaining fences the defendants must show a substantial inclosure; that it is not enough to show a fence made merely by lopping one tree upon another; that the inclosure must be completed on all sides of the disputed territory, must be definitely located, and must be maintained continuously for the full statutory period. The plaintiffs claim that these requirements have not been established. On the other hand, the defendants claim that the disputed tract was fenced on the south by a rail fence, nearly across the lot, while on the north and east there was a brush fence with gate and bars on the east. Thus they claim that they have met the requirements regarding fencing. Upon that issue the burden is upon the one claiming by adverse possession, in this case the defendants. Magoon v. Davis, 84 Me. 178, 24 Atl. 809; Batchelder v. Robbins, 95 Me. 59, 49 Atl. 210; Webber v. McAvoy, 117 Me. 326, 104 Atl. 513. Moreover, there is every presumption that the occupancy is in subordination to the true title and if the possession is claimed to be adverse the acts of the wrongdoer must be strictly construed and the character of the possession clearly shown. Preble v. M. C. R. R. Co., 85 Me. 260, 27 Atl. 149, 21 L. R. A. 829, 35 Am. St. Rep. 366; Roberts v. Richards, 84 Me. 1, 24 Atl. 425; Codman v. Winslow, 10 Mass. 146; Ricard v. Williams, 7 Wheat. 59, 5 L. Ed. 398; Huntington v. Whaley, 29 Conn. 391; Coburn v. Hollis, 3 Metc. (Mass.) 125; Jackson v. Sharp, 9 Johns. (N. Y.) 163, 6 Am. Dec. 267. Examining the testimony in the light of these legal requirements, and giving it the effect most favorable to the defendants, we discover that there was a stone and rail fence on the westerly portion of the south line, but from the easterly end of this stone and rail fence there extended easterly only a brush or hedge fence, commonly known as a lop and top fence, and even that did not extend fully to the southeast corner of the tract; that there was at some time a similar lop and top fence on practically all of the east and north sides. One witness described it in these words, "Brush was piled up there like it would be for a brush fence," and that it was so piled "probably three feet or such a matter." Other witnesses admitted on cross-examination that for quite a period of time even these lop and top fences had ceased to exist. It plainly appears that the hedge fences, whenever built or however long maintained, were simply convenient means of keeping Mr. White's cattle from escaping from territory which he was using as a pasture. There is no evidence of any fence, at any time, on the west line.

"A substantial fence built round a parcel of land sought to be held by adverse possession and for the purpose of showing an adverse claim to the part inclosed, may be an act of such notoriety as to afford notice to all concerned of the builder's assertion of right; * * * but when a brush fence is erected for the simple convenience of the builder, it can have no such significance." Roberts v. Richards, 84 Me. at page 12, 24 Atl. 428, and numerous cases there cited.

Upon this element of the case, namely, gaining adverse possession by maintaining fence, we are of opinion that the defendants have failed to sustain the burden which the law imposes upon them.

2. Pasturing Animals Upon the Disputed Tract.—In considering this element, we must note the location of the disputed tract with reference to the south half of lot 33 which the Whites occupied, and of which they held a deed. The southwesterly portion of the south half of 33 was a field and used as such. A portion of the southeasterly and easterly parts consisted of and were used as a pasture. There does not appear to have been a fence between this pasture in 33 and the disputed tract lying next east of it. It does appear that the Whites turned their cattle into their own pasture, which covered a portion of the easterly side of lot 33, and, since there was no fence to prevent, they roamed over the disputed tract and were sometimes there found by the sound of the cow bell. This unrestricted meandering of cattle upon land of a neighbor is quite a different proposition from that of a deliberate intent of the owner of the cattle to pasture his stock upon his neighbor's land and by so doing to claim the establishment of a right which would ripen into a title to that land by adverse possession. The test of the hostile or adverse character of possession is the intent of the disseizor. Preble v. M. C. R. R. Co., supra; Martin v. M. C. R. R. Co., 83 Me. 100, 21 Atl. 740; Richardson v. Watts, 94 Me. 476, 48 Atl. 180; Ricker v....