Wishart v. Mcknight

• Decision Date: 01 April 1901
• Citation: 59 N.E. 1028,178 Mass. 356
• Parties: WISHART v. McKNIGHT.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

178 Mass. 356

59 N.E. 1028

WISHART v. McKNIGHT.

Supreme Judicial Court of Massachusetts, Worcester.

April 1, 1901

COUNSEL

J. W. Corcoran, W. B. Sullivan, and A. G Buttrick, for plaintiff.

Herbert Parker & Henry H. Fuller, for demandant.

OPINION

LORING J.

It appears from the photograph and plan made a part of the bill of exceptions that the demanded premises consist of a strip of land 10 feet wide between the dwelling houses of the demandant and of the tenant, running from Pond Court, on which those houses front, to the rear line of the lots; that the rear of the locus is covered by a barn, used and occupied by the tenant, which is in part on the locus and in part on the land to which the tenant, without question, has a good title; and, further, that the tenant's only access by wagon to the barn is over the the locus, his dwelling house being within 3 1/2 feet of the other, that is, the westerly side of his lot. From the deeds put in evidence it appeared that the record title to the locus was in the demandant. The tenant introduced in evidence various deeds covering the land on which his dwelling house stands, but not covering the 10-foot strip in question; the first of these deeds being dated January, 1874. He offered to show that for 20 years prior to the date of the writ, July 20, 1897, each of the grantees in said deed had occupied the demanded premises, and had maintained a fence inclosing them as part and parcel of the premises and dwelling house occupied by them. It was admitted that no one of these grantees had occupied the locus for a continuous period of 20 years, and that the locus was not covered by the description of the land covered by any of these deeds. This evidence was excluded against the exception of the tenant, and the court found for the demandant. This evidence would have warranted the jury in finding that each of the grantees transferred to his successor his possession of the strip of land in question, and that thereby the demandant was continuously kept out of possession. The ruling in the court below evidently was made on the authority of Sawyer v. Kendall, 10 Cush. 241, following dicta in the previous cases of Ward v. Bartholomew, 6 Pick. 409, 415; Allen v. Holton, 20 Pick. 458, 465; Melville v. Proprietors of Locks & Canals, 5 Metc. 15, 32; and Wade v. Lindsey, 6 Metc. 407 413,--cited in that case. Where possession has been actually and in each instance transferred by the one in possession to his successor, the owner of the record title is barred from maintaining an action to recover the land. In some cases this conclusion has been reached on the ground that in such a case there is the necessary privity, or, more properly, continuity of possession, between the successive trespassers, within the doctrine on which Sawyer v. Kendall was decided. Weber v. Anderson, 73 Ill. 439; Faloon v. Sinshauser, 130 Ill. 649, 22 N.E. 835; Smith v. Chapin, 31 Conn. 530; Schrack v. Zubler, 34 Pa. 38; Chilton v. Wilson's Heirs, 9 Humph. 399, 405; Vandall v. St. Martin, 42 Minn. 163, 44 N.W. 525; Crispen v. Hannavan, 50 Mo. 536; Adkins v. Tomlinson, 121 Mo. 487, 494, 26 S.W. 573; Coogler v. Rogers, 25 Fla. 853, 882, 7 So. 391; Rowland v. Williams, 23 Or. 515, 32 P. 402; Shuffleton v. Nelson, 2 Sawy. 540, Fed. Cas. No. 12,822; Winn v. Wilhite, 5 J. J. Marsh. 521, 524. Other cases go further still. Carter v. Barnard, 13 Q. B. 945, 952; Dixon v. Gayfere, 17 Beav. 421, 430; Willis v. Howe [1893] 2 Ch. 545, 553; Fanning v. Willcox (1808) 3 Day, 258; McNeely v. Langan (1871) 22 Ohio St. 32; Shannon v. Kinney (1817) 1 A. K. Marsh. 3; Scheetz v. Fitzwater, 5 Pa. 126. And see Chapin v. Freeland, 142 Mass. 383, 387, 8 N.E. 128; Harrison v. Dolan, 172 Mass. 395, 397, 52 N.E. 513. Where possession of land has been held for the statutory period by successive disseisors or trespassers, the defense of the statute is not made out if the possession has not been continuous, because, where a disseisor in fact abandons his possession, and leaves the land vacant, the seisin of the true owner reverts. There is a new departure from that time, and the owner can rely on his new seisin by reverter as the ground of an action within the statutory period. Agency Co. v. Short, 13 App. Cas. 793; Solling v. Broughton [1893] App. Cas. 556, 561; Cunningham v. Patton, 6 Pa. 355, 358, 359; Railroad Co. v. Philyaw, 88 Ala. 264, 268, 6 So. 837; Jarrett v. Stevens, 36 W.Va. 445, 450, 15 S.E. 177. In Sawyer v. Kendall the lot in controversy had been set off to the grantor of the demandant, and the lot next to it to the tenant, in the partition of their father's estate, made by commissioners duly appointed. The premises in controversy and the parcel of land set to the tenant were then inclosed by one fence, and so remained until the lot in controversy was conveyed to the demandant. He put up a fence between the two lots, and brought the writ of entry to recover possession of this in the same month in which it was conveyed to him, namely, in March, 1848. Both lots 'were mostly used as pasture land, and were approached in two ways, both of which led across the latter [the demanded premises]. The tenant proved that during the life of her husband the premises in dispute and the parcel set to her had been used by him, and, since his death, by her, by turning cattle into the parcel set to the tenant; and that they thence went into and depastured the tract in controversy. It also appeared that the tenant had gathered apples from the trees on the latter place, and driven cattle over and across the same. This use, as aforesaid, was exercised by the husband of the...