Lincoln v. Edgecomb

The enclosing of land by a fence, though erected beyond the true divisional line, is not a disseizin of the adjoining owner, if it was done through a mistake as to the true line, and if there was no claim to title beyond that line, and if the true owner has not been prevented from occupying his whole land. The tenant erected a fence so as to enclose, with his own land, a piece of the demandant’s land. But he erected it there by mistake, and without claiming title beyond the true divisional line, and had not prevented the demandant from occupying to that lino. Hold; it was not a disseizin of the demandant, though the fence had continued for eight or ten years.

This was a writ of entry. Eight or ten years before the suit, the defendant had erected a fence, which enclosed, (with his own land,) a narrow strip of the demandant’s land. After evidence to the jury, the Judge instructed them that, if the tenant claimed title up to the fence, or prevented the demand-ant from occupying to the true divisional line, that would, in connection with the fence, amount to a disseizin; that, if they were satisfied, that the tenant built his fence there by mistake, and had not claimed to own beyond the true divisional line, and had not prevented the demandant from occupying within his fence to that line, although the placing of the fence there might have been an act of trespass, he would not be guilty of disseizing the demandant. The jury found a verdict for the tenant. If the instructions were erroneous, it is to be set aside and a new trial granted.