Opinion
Decided April 1, 1902.
In an action of trespass quare clausum, the question whether title has been acquired by adverse possession is properly submitted to the jury where the evidence tends to show that the defendant and his ancestor in title have been in adverse, continuous, and uninterrupted possession of the lands in controversy for more than twenty years, under a claim of right, and that the plaintiff has made no claim to and exercised no dominion over the premises during the same period.
TRESPASS, quare clausum, for breaking and entering lot 108 in Northumberland, and cutting and carrying away wood and timber. Trial by jury and verdict for the defendant. Transferred from the November term, 1901, of the superior court by Wallace, C. J.
The defendant claimed title to the premises in controversy by adverse possession, and that was the only question tried, except the amount of damages if the jury should render a verdict for the plaintiff. At the close of the case the plaintiff requested the court to take the question of adverse possession from the jury, and to instruct them that the acts which the defendant claimed were performed by him, or those acting under him, on lot 108, were as a matter of law insufficient to support his claim of title to the lot by adverse possession, and that the only question for the jury was the amount of damages to which the plaintiff was entitled. This request was denied, subject to exception, and the case was submitted to the jury under instructions to which no exception was taken.
Sullivan Cleaveland, for the plaintiff.
John E. Benton, for the defendant.
It appears that formal possession of the lot in controversy was delivered to William Heywood under a void levy of execution in 1863; that he afterward claimed to own it until 1880; that he lumbered more or less on the lot in the meantime; that he sold stumpage therefrom to Barton G. Towne, who logged on the lot with several men for about one month between 1867 and 1870; that one Stalbird worked with another man and horses for Heywood logging on the lot, for about ten days in the year 1879; that during the time Heywood claimed to own it, it was known as the "Heywood lot" in the neighborhood where it was situated; that the plaintiff ceased paying taxes on the lot and exercising ownership over it in 1878, because he understood some one had acquired a tax title; that he so believed until a short time before this suit, April 2, 1900; that Heywood sold the lot to the defendant by warranty deed, October 1, 1880; that from that time until the date of the suit the defendant was in continuous adverse occupation of the lot; that from 1878 until April 2, 1900, the plaintiff made no claim to and exercised no act of ownership over the lot, although he lived for many years about five miles from it.
Upon the foregoing facts we think the plaintiff's request was correctly denied, and that the question of adverse possession was properly submitted to the jury. Riley v. Jameson, 3 N.H. 23, 27; Towle v. Ayer, 8 N.H. 57, 59;Breck v. Young, 11 N.H. 485; Bailey v. Carleton, 12 N.H. 9, 15; Wendell v. Moulton, 26 N.H. 41; Gage v. Gage, 30 N.H. 420; Grant v. Fowler, 39 N.H. 101; Farrar v. Fessenden, 39 N.H. 268, 281; Forest v. Jackson, 56 N.H. 357, 362; Boynton v. Hodgdon, 59 N.H. 247, 248; Clark v. Clough, 65 N.H. 43, 78; Webb v. Richardson, 42 Vt. 465, 473; Aldrich v. Griffith, 66 Vt. 390; Bowen v. Guild, 130 Mass. 121; Warren v. Bowdran, 156 Mass. 280, 282; Houghton v. Wilhelmy, 157 Mass. 521; Bond v. O'Gara, 177 Mass. 139; Jordan v. Riley, 178 Mass. 524; Williams v. Buchanan, 1 Ired. 535; Finn v. Land Co., 72 Wis. 546; Leeper v. Baker, 68 Mo. 400; Ewing v. Burner, 11 Pet. 41.
Exception overruled.
All concurred.