Dikeman v. Taylor

Where the premises, in a deed of land, were described as “ the north half of a certain lot of land, with the store standing on said north half,” and the whole lot was bounded in said deed, and said north half described as “ bounded south on the grantor’s'own land,” and a corner of said store, which was a permanent building, projected a short distance beyond a line drawn from a point in the middle of the front line of said lot, to a point in the middle of the rear line thereof; it was held, that said deed conveyed the north half of said lot as designated by said line, and also so much south of said line as was covered by said store. On the trial of an action of ejectment, it was proved that the plaintiff and defendant, who were adjoining proprietors of land, each claiming to own the premises in controversy, had each occasionally occupied beyond his own line, and that the defendant had given the plaintiff a written notice not to trespass upon his land, claiming, in it, to own all the land north of a certain line mentioned therein, and the plaintiff claimed to have proved an ouster by the defendant, and the court submitted such notice, in connection with evidence of the acts of the parties, to the jury, instructing them that an ouster was not constituted by mere words, but that the notice might serve to give a construction to such acts, as the defendant had committed upon the land beyond his line, and directing them to find whether said notice, in connection with the acts proved, was, or was not, sufficient evidence of such ouster; it was held, that such course was correct.

This was an action of ejectment for a parcel of land, lying in the town of Westport, tried at the term of the superior court for Fairfield county, holden in August, 1855. The plaintiff and defendant each claimed title to the premises in question, by deeds from one Charles Fox. It was admitted on the trial, that on the day of Fox was the owner in fee of a certain piece of land, embracing that in dispute in the present action; that, at that time, the store hereinafter mentioned, stood on the northern part thereof, and had stood there for more than forty years; that subsequently Fox erected a butcher’s shop adjoining said store, and thereafter occupied said store and shop, himself, until when he leased said store to the defendant, who thenceforward occupied it until November 3d, 1849, when Fox, executed and delivered his deed of that date, to the defendant, under which the defendant claims title to the premises in question. The property, conveyed by said deed, was described therein as follows: “the north half of a certain lot of land lying in Westport, the whole lot being about forty-one feet front, and about ninety feet deep, with the store standing on said north half; the whole lot is bounded north by Charles Allen, east by' highway, south by Ebenezer Jessup, and west by Saugatuck river; and the north half is bounded south by my own land.” The defendant thenceforward, and up to the time of the conveyance, hereafter mentioned, to the plaintiff, occupied the whole property, described in his aforesaid deed from Fox, claiming it as his own, and occupied said store up to the time when this action was brought, and all the property lying north of a straight line, drawn from a point in the middle of the front to the middle of the rear line thereof. Afterward, on the 24th day of March, 1854, Fox executed and delivered to the plaintiff, a deed of that date, under which the plaintiff claimed, and in which the premises were described as follows: a “lot of land, situated in said West-port, bounded north by Solomon G. Taylor, east by highway, south by Ebenezer Jessup, and west by Saugatuck river, said lot of land being about twenty feet front, and about ninety feet deep, with the butcher’s shop thereon standing; it being, that part of the lot which I bought of Samuel Avery and wife, which is not conveyed to Solomon G. Taylor, by deed bearing date the 3d day of November, 1849, and recorded in the record of lands of said Westport, intending to convey to said grantee all the privileges reserved in said deed to said Taylor, to which deed reference is had for more particular description.” It was also admitted, that said Saugatuck river is at that place a navigable river, where business is done by shipping, and that the ground in the rear of said store, as well as that in the rear of said butcher’s shop, is chiefly a wharf on said river in its navigable part; that the part thereof belonging to the defendant, by said deed to him was never by fence, or in any other way, separated from that belonging to the plaintiff by his deed, unless in part, as hereinafter mentioned. The plaintiff claimed, upon the facts, that he was entitled to all the land lying south of a line drawn from a point in the middle of the front line, to the middle of the rear line, at the edge of said wharf, including land covered by a part of said store of the defendant, the same standing where it stood when Fox conveyed to the defendant, and where it has ever since stood. This claim of the plaintiff the defendant denied, and insisted that, by said deed to him, he became, and was, entitled to all the property so conveyed by said Fox, which lies north of a line drawn direct from said point, in the middle of the front line, to the south-west corner of said store, and thence running in a continued straight course to the said rear line. It appeared that a line drawn in a direct course from said point in the middle of the front line, touching said south-west corner of said store, to the said rear line, would give the defendant somewhat more, but how much more was not shown, than just one-half of the whole property owned by said Fox. Each party requested the court to instruct the jury, in conformity with his claim. The court charged the jury, that, if they should find that the store of the defendant, at the time of said deed to him, was not a temporary building, but a building permanent in its character, the removal of which was not contemplated by the parties, the defendant was entitled, on the facts aforesaid, to all of said land lying north of the line drawn from the middle of the front to the middle of the rear of the whole lot, and also to all south of said line, which was covered by said store; but that the plaintiff was, on the facts aforesaid, entitled to all that so lying in the rear of said store, south of said line, except that covered by said store. The defendant also denied that he had ever ousted the .plaintiff from any part of said land, so in the rear of said store, and south of said line drawn as last mentioned. The plaintiff admitted, that, before the present action was brought, he erected arid had ever since occupied an addition to his said butcher’s shop, extending some distance along the rear of defendant’s said store and adjoining thereto; that at that time he, the plaintiff, placed a line of dirt and stones, extending beyond the store westwardly towards the river, in a line which was a part of a straight line, drawn from a point in the middle of the front to the middle of the rear, for a short distance westward of the defendant’s store, but for the residue of the distance to the wharf, there was nothing to separate the plaintiff’s and defendant’s lands. To prove an ouster by the defendant, the plaintiff testified that the defendant had, in the use of his said store from time to time, thrown out barrels and boxes on the said wharf promiscuously, in one place and another, as it happened, and ■ sometimes a little south of said line last mentioned, and on cross-examination, he testified that he himself had, during the same time, in the use of said butcher’s shop, from time to time, thrown out barrels on said wharf in like manner, and sometimes a little over and north of said line, and had, during the same time, in the use of his said store, from time to time, and almost, or quite, weekly, driven his horse and wagon over the said wharf, as well that part lying north of said line, as that lying south thereof; but he did not testify that the defendant ever, at any time, after he so placed said line of stones and dirt, threw any barrels or boxes on, or exercised any act of ownership on or over, the part of said wharf so lying south of said line last mentioned,, but testified that he did not know that the defendant had ever done either, since said line of stones and dirt was so placed as aforesaid. He also gave in evidence the following notice from the defendant to him: Westport, Sept. 6, 1853. To John B. Dikeman, Esq. Dear Sir: I hereby forbid you to trespass, either by yourself, or any other person, in any way, on any part of my property adjoining you, on penalty of the law. And I hereby give you notice, that I claim to own all the land, north of a line running from a middle point between us in the front line, in a straight and direct line to the south-west corner of my store, and thence in a direct continuous line to Saugatuck river. Solomon G. Taylor. The plaintiff testified that, before the defendant gave him said notice, he had made arrangements and preparations for building said addition, of which the defendant had knowledge. The defendant testified, that said barrels and boxes were thrown out by him for mere occasional convenience, and without reference to any line between his property and that of the plaintiff, and that after said line of stones and dirt was so placed, he never placed any barrels or boxes or other things on said property, south of said line, nor had any possession over, nor exercised any act of ownership on, or over the said property so lying south of said line; and that before he gave said notice to the defendant, the latter had made preparations within the defendant’s knowledge, for erecting said addition, and had laid the stone underpinning thereof. There was no other evidence offered by the plaintiff, or before the jury, of any occupancy or possession, by the defendant, of the said property in the rear of said store, or other buildings, or of any act of ownership thereon by the defendant, or of any ouster by the defendant. The defendant insisted and prayed the court to instruct the jury, that said evidence was no evidence of such ouster, and. that by the testimony, no ouster was shown, and that such evidence was not sufficient to prove, and that it did not tend to prove, such ouster. The court did not so instruct the jury, but instructed them that said notice was admissible in evidence, as tending to prove an ouster, by the defendant, of the plaintiff from the premises, claimed by the defendant to belong to him in said notice; that an ouster was an act, and that mere words did not constitute an ouster, but the notice was claimed to contain an implied admission that the defendant was in possession, forbidding the. plaintiff’s entry, and that, in connection with acts of ownership upon the land in the rear of the store, the notice might furnish evidence to show the line to which the defendant claimed title, and give a construction to the defendant’s acts, but that whether said notice and the acts of the defendant proved were ' sufficient evidence of ouster, was a question of fact for the jury. The jury returned a verdict in favor of the plaintiff, and found for him to recover of- the defendant, the seizin, and peaceable possession of the demanded premises, except the land covered by the defendant’s store. Both plaintiff and defendant thereupon moved for a new trial, claiming that the rulings of the court, adverse to their respective claims, were erroneous.