French v. Pearce

Hosmer, Ch. J.

Whether the line of occupancy was the dividing line between the parties, was the point of controversy between them. The jury were charged, so far as relates to the deed, that if the line described in it was doubtful, they might take into consideration the possession and occupation of the defendant, for the purpose of determining it. This opinion seems not to be questioned; nor is it questionable. An occupation of land, by the defendant, as his own, under the plaintiff’s eye, to what he supposed to be the dividing line between him and the plaintiff, and which, for many years, the plaintiff permitted without a question, from the mutual assent of the parties, is strong presumptive evidence of the true place of the line, 1 Phill. Ev. 420-22.

On the point of title by fifteen years possession, as the only objection made at the trial, was, that the possession of the defendant was not adverse, it must be assumed..that none other existed. Of consequence, the controversy is confined to that single point.

By adverse possession is meant a possession hostile to the title of another; or, in other words, a disseissin of the premises; and by disseisin is understood an unwarrantable entry, putting the true owner out of his seisin. Co. Litt. 153. b. 181.

The enquiry, then, is precisely this; what must be the character of the act, which constitutes an adverse possession?

This question was directly answered, in Bryan v. Atwater, 5 Day 181 ., and by this Court. A clear and unquestionable rule was intended to be given. The court commenced the expression of their opinion by saying: “It will be necessary to ascertain precisely the me an i ng of the terms adverse holding or adverse possession." The f i rst principle asserted in that case, is, that to render a possession adverse, it is not necessary that it it should be accompanied w ith a claim of title end with the denial of the opposing title. The case next affirms, that *443 possession is never adverse, if it be under the legal proprietor and derived from him. After these preliminaries, it is enquired: “But more particularly, what, in point of law, is an adverse possession? It is,” say the court, “a possession, not under the legal proprietor, hut entered into without his consent, either directly or indirectly given. It is a possession, by which he is disseised and ousted of the lands so possessed.” That there should remain no doubt, they next enquire, what constitutes a disseisin? After shewing negatively, that it is not requisite to enter claiming title, or denying the title of the legal owner, they remark affirmatively, that it is only necessary for a person to enter and take possession of land as his own; to take the rents and profits to himself; and to manage with the property as an owner manages with his own property; that is, the person thus possessing must act as if he were the true owner and accountable to no person for the land or its avails. A criterion is then given to determine whether a possession is adverse. “It is only necessary to find out,” say the court, “whether it can be considered as the constructive possession of the legal proprietor.”

I have been thus particular in analyzing this case, in which the reasons were drawn up, by a very able and eminent jurist; as it presents, in the plainest language, a sure and most intelligible land-mark, to ascertain when a possession is adverse. It is peculiarly observable, that by the reasons given, anxiously laboured as they were, it was intended to put the question at rest for the future. The possession alone, and the qualities immediately attached to it, are regarded. No intimation is there as to the motive of the possessor. If he intends a wrongful disseisin, his actual possession for fifteen years, gives him a title; or if he occupies what he believes to be his own, a similar possession gives him a title. Into the recesses of his mind, his motives or purposes, his guilt or innocence, no enquiry is made. It is for this obvious reason; that it is the visible and adverse possession, with an intention to possess, that constitutes its adverse character, and not the remote views or belief of the possessor.

It is not necessary that I should proceed further, as the point of decision, in the case before us, has been settled, by this Court, and with great precision. At the same time, it, may be the more satisfactory to shew, that the determination here is in harmony with the decisions of other courts.

*444 In Westminster-Hall, the character of an adverse possession is well established. The possession of a person denying the title of the owner, or claiming the premises, or taking the whole rents and profits without accounting, is held sufficient evidence of actual ouster. Doe d. Fisher & al. v. Prosser, Cowp. 217. Doe d. Hellings & ux. v. Bird, 11 East 49. Stocker v. Berry, 1 Ld. Raym. 741. S. C. by the name of Stokes v. Berry, 2 Salk. 421. The extent of the doctrine is defined by the following considerations. The possession of a tenant in common is held not to be adverse, without actual disseisin or its equivalent, as he is presumed to possess for his fellow commoner; but the possession of an individual entering not under another, is adverse, by a perception of the profits only to his own use.

In the state of New-York, the entering on land under pretence of title, or under a claim hostile to the title of the true owner, constitutes an adverse possession. Brandt d. Walton v. Ogden, 1 Johns. Rep. 156. Jackson d. Griswold v. Bard, 4 Johns. Rep. 230. Jackson d. Bonnel & al. v. Sharp, 9 Johns. Rep. 162.

To the same effect is the law of Massachusetts. “To constitute an actual ouster,” said Parsons, Ch. J., “of him who was seised, the disseisor must have the actual exclusive occupation of the land, claiming to hold it against him who was seised, or he must actually turn him out of the possession.” Kennebeck Purchase v. Springer, 4 Mass. Rep. 416 . 418. Boston Mill Corporation v. Bulfinch, 6 Mass. Rep. 229 . It is obvious, that a person who takes possession, does not the less claim to hold it against him who before was seised, because he conscientiously believes, that he has right to possess.

The law of Maine, so far as it is expressed in the case of Kennebeck Purchase v. Laboree & al. 2 Greenl. 275., is in perfect harmony with that of the states already mentioned. “The doctrine on this subject,” said Mellen, Ch. J., “seems to be plain and well settled. A possession must be adverse to the true owner, in order to constitute a disseisin. The possessor must claim to hold and improve the land for Ms own use and exclusive of others,” He next states, that in a count on the demandant’s seisin, it was never incumbent on the tenant to prove more than his continued possession and occupancy for thirty years next before the commencement of the action, using and improving the premises after the manner of the own *445 er of the fee; and he then subjoins, that such possession, unless explained, affords satisfactory evidence to the jury, that such tenant claimed to hold the land as his own.

In the case of Brown v. Gay, 3 Greenl, 126. the question was, whether the tenant was in possession of certain land by disseisin. He owned a lot denominated No. 3., and was in possession of lot No. 4., claiming that it was part of the former lot. He was, therefore, in possession through mistake. This principle was advanced, by the court, to wit: “If the owner of a parcel of land, through inadverency or ignorance of the dividing line, includes a part of an adjoining tract within his enclosure, this does not operate a disseisin, so as to prevent the true owner from conveying or passing the same by deed.”

If the learned court meant to lay down the position, that although the possession was adverse and a disseisin, yet that it was of such a character as not to prevent the owner from transferring the land by deed, the case has no bearing on the one before us. But if it was intended to declare, that there was no disseisin at all, by reason of the before mentioned mistake, I cannot accede to the proposition. There was a possession; it was not under the true owner, but it was under a claim of right; and the rents and profits (if any) were received and appropriated to the possessor’s use, without any supposed or assumed accountability. This is a disseisin, by all the cases on the subject, with every mark or indicium of one upon its face. If the possession were incidental to the taking of something off the property, it would be a trespass only. But when the possession is a permanent object, under a claim of right, however mistaken, what can be a disseisin, if this is not? That the possessor meant no wrong, might be very important, if he were prosecuted for a crime; for nemo fit reus, nisi mens sit rea, But the motive, which induced the taking possession, is remotely distant from the possession in fact under a claim of right, and in no respect tends to qualify or give character to the act. It was adverse possession and disseisin (innocently happening) with the full intention of the mind to possess exclusively; and by necessary consequence, a seclusion of the owner from the seisin of his property.

I agree with the learned court, that the intention of the possessor to claim adversely, is an essential ingredient. But the person who enters on land believing and claiming it to be his own, does thus enter and possess. The very nature of *446 the act is an assertion of his own title, and the denial of the title of all others. It matters not, that the possessor was mistaken, and had he been better informed, would not have entered on the land. This bears on another subject—the moral nature of the action; but it does not point to the enquiry of adverse possession. Of what consequence is it to the person disseised, that the disseisor is an honest man? His property is held, by another, under a claim of right; and he is subjected to the same privation, as if the entry were made with full knowledge of its being unjustifiable.

In the case of Ross v. Gould, 5 Greenl. 204. it is said, “a disseisin cannot be committed by mistake, because the intention of the possessor to claim adversely, is an essential ingredient in disseisin.” I do not admit the principle. It is as certain that a disseisin may be committed by mistake, as that a man may by mistake take possession of land, claiming title and believing it to be his own. The possession is not the less adverse, because the person possessed intentionally, though innocently. But in the moral nature of the act, there is undoubtedly a difference, when the possessor knowingly enters by wrong.

I have been the more particular in my observations, for two reasons. The first is, that the evidence of adverse possession, which is of very frequent occurrence, might be placed on grounds clear and stable: The next, from a serious apprehension that in the law of disseisin, an important change is inadvertently attempted. Adopt the rule, that an entry and possession under a claim of right, if through mistake, does not constitute an adverse possession, and a new principle is substituted. The enquiry no longer is, whether visible possession, with the intent to possess, under a claim of right, and to use and enjoy as one’s own, is a desseisin; but from this plain and easy standard of proof we are to depart, and the invisible motives of the mind are to be explored; and the enquiry is to be had, whether the possessor of land acted an conformity with his best knowledge and belief.

In the case before us, the plaintiff adduced evidence to show, that he entered on the land in question, and possessed it more than fifteen years, uninterruptedly and exclusively, under a claim and belief of right, and appropriating to his own use, without account, all the rents and profits. This was adverse *447 possession and disseisin, and gave him title under the law of the state.

Upon this principle, the charge was incorrect, and a new trial is advised.

The other Judges were of the same opinion, except Peters, J., who was absent.

New trial to be granted.