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Northeastern Reporter.


(142 Mass. 569)


(Supreme Judicial Court of Massachusetts. Berkshire. October 23, 1886.) STATUTE OF LIMITATIONS-TITLE BY PRESCRIPTION-WILD LAND -PASTURING CATTLEREPAIRING ROADS. The defendant, in an action for trespass upon wild land, cannot maintain his defense, of title by prescription in the premises, by proving that for 20 years his cattle, placed on his own land, adjoining the disputed premises, went upon the latter, and used it, as well as his own land, as a pasture; that he repaired a road running through the disputed premises, which he used in going to and from his own land; and, from time to time during the 20 years, had cut one or two cords of wood upon the disputed premises, and had allowed it to remain on the land.1

Action of trespass to real estate, brought to recover damages of defendant for cutting and converting to his own use certain wood and timber. At the trial in the superior court, before BACON, J., it appeared that the plaintiff derived title to the premises by a deed from one Hackley, who conveyed to him, February 6, 1849, by deed duly recorded February 8, 1849; that said Hackley conveyed the premises, which contained 13 acres and 98 rods, as trustee under the will of one Stephen Scott, who owned 8 acres and 28 rods, and as guardian of James Scott, who owned the remaining 5 acres and 70 rods, the latter portion of premises being conveyed under authority of the legislature. The plaintiff introduced evidence fully identifying the land described in said deed as the land described in the plaintiff's declaration, and that the défendant had, within six years next before date of plaintiff's writ, entered upon said land, and cut and carried away a quantity of wood and timber. The plaintiff also offered evidence showing title to the said 8 acres and 28 rods in Stephen Scott; and also evidence that, in 1869 or 1870, the plaintiff's surveyor was upon the lot, and that he was again upon the lot, preparing to make a survey for the plaintiff of it, in 1874 to 1877, and actually made the survey in 1879; that between the date of Hackley's deed to plaintiff and 1852 the plaintiff cut off all the wood and timber on said lot, but had not done anything on the lot since finishing carrying away the wood and timber, in 1852 to 1879, excepting as above stated.

The defendant introduced evidence of his having, from and since 1856 or 1857, used the lot, by repairing the road through the same, and in using said road in going to and from defendant's other land, which entirely surrounded said lot; and had cut wood thereon, from time to time, from 1856 or 1857,

1See note at end of case.

and allowed the same to lie for some time before taking it away, so it could be seen by any one. The defendant had also, all said time, used the lot as a pasture and place for his cattle to run, feed, and drink upon, without any hinderance or objection made by any one, for more than 20 years, and till within a few months before the date of plaintiff's writ. Defendant himself says that he had intended, since 1856 or 1857, the time he repaired the road, to claim said lot as his own, and had ever since claimed it as his lot, and had fenced in the same with his other land, by placing a fence around his other land, and taking in this lot, including, in all, about 200 acres of land; and that ever since he had had full and exclusive possession and control of the same, unmolested by any one. All the land of the defendant adjoining the lot in question is composed of his farm of about 500 acres, on which he lived all the time, from and after 1852, and other lands bought by him since, which consists of sprout land. The land in question was woodland when cut by plaintiff, and, at the commencement of this action, consisted of sprouts, about one acre of pasture, and some wet land, and all of it had been occupied by the defendant's cattle, more or less, since 1852. The defendant claimed he had a title by prescription, certainly, of so much as was owned by James Scott; but the court ruled that the defendant had shown no defense, instructed the jury to return a verdict for the plaintiff, which they did, and the court reported the case to the supreme judicial court for its consideration of the questions of law involved.

A. J. Waterman, for defendant.

The 8 acres and 28 rods belonged to Stephen Scott at his death, and Aaron Hackley had a right to sell the same to the plaintiff. The 5 acres and 70 rods neither Stephen Scott nor Aaron Hackley ever had any title to, nor does the legislative resolve cover it, and Hackley's sale of it was void, and the plaintiff took nothing by the conveyance, so far as the 5 acres and 70 rods are concerned.

The testimony of the defendant, and the evidence introduced in his behalf, if believed, was sufficient for a jury to find a verdict upon for the defendant, and it ought to have been submitted to the jury. Reed v. Deerfield, 8 Allen, 522; Warren v. Chapman, 115 Mass. 584; Samuels v. Borrowscale, 104 Mass. 207; Poignard v. Smith, 6 Pick. 172; Melvin v. Locks & Canals, 5 Metc. 15; Kennebeck Purchase v. Call, 1 Mass. 483; Perry v. Weeks, 137 Mass. 584, 588.

Dewey & Wright, for plaintiff.

The plaintiff was entitled to the verdict, and the ruling of the court was correct. Farwell v. Rogers, 99 Mass. 33; Ward v. Fuller, 15 Pick. 185; Second Precinct in Rehoboth v. Carpenter, 23 Pick. 131; Burridge v. Fogg, 8 Cush. 183; Ashley v. Landers, 9 Allen, 250; Sparhawk v. Bullard, 1 Metc. 100; Towne v. Butterfield, 97 Mass. 105; Perry v. Weeks, 137 Mass. 584; Kennebec Purchase v. Laboree, 2 Greenl. 275. Even if plaintiff, as against defendant, had no legal possessory title to so much of said land as was owned by James Scott, still, under the general denial in defendant's answer, plaintiff can recover, and was entitled to damages proportionate to his title as proved. Bullock v. Hayward, 10 Allen, 460. The acts and doings of defendant in and upon the land were not in their nature acts of exclusive, notorious, and adverse possession, and do not amount to disseizin of the plaintiff. Proprietors of Kennebec Purchase v. Springer, 4 Mass. 416; Slater v. Jepherson, 6 Cush 129; Cook v. Babcock, 11 Cush. 209. Parker v. Parker, 1 Allen, 245; Stevens v. Taft, 11 Gray, 33; Morrison v. Chapin, 97 Mass. 72; Coburn v. Hollis, 3 Metc. 125; Morris v. Callanan, 105 Mass. 132; 2 Greenl. Ev. § 557; Hale v. Glidden, 10 N. H. 397; Washabaugh v. Entriken, 36 Pa. St. 513; Hole v. Rittenhouse, 37 Pa. St. 116; Wood, Lim. Act. § 258, and cases cited.

Plaintiff can rely on its warranty deed of the whole premises, and defendant, a stranger, cannot inquire into any alleged irregularity about the sale

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