Moor v. Campbell

Mere prior possession of land is sufficient to enable a person to maintain trespass-against one who subsequently enters upon the land without title. Where a person enters upon land without title or color of title, he is considered in possession of no more land than he actually occupies. In an action of trespass qu. cl. fr., it appeared that the defendant’s grantor, haying no color of title, in the year 1835 entered upon the locus in quo, cut trees from it, and planted two thirds of it, but his possession was not marked by any definite boundaries. In the year 1840 the plaintiff entered upon the land described in the writ, and surveyed it. — Held, that the entry upon the locus in quo meant only an entry upon the land described in the writ, and that as it did not appear that the defendant or his grantor had a prior possession of the place where the alleged trespass was committed, such possession as he had was not an answer to the action, as he could be considered in possession of no more land than he actually occupied.

Trespass quare d. fr., alleged to bave been committed on the 1st day of January, 1841, and on divers other days between that day and the 8th of the following September, in the plaintiff’s dose, situated in Manchester. At the trial upon tho general issue, the plaintiff- produced in evidence a deed of warranty from one Joseph Emerson to tho plaintiff, dated on tho 15th day of January, 1829, the execution of which was admitted. The description in this deed includes the locus in quo, with a much larger tract of land adjoining it on the south. There was no controversy in relation to Emerson’s title to the land described in his deed, with the exception of the land in dispute. The plaintiff proved that in tho month of December, 1840, he caused the whole tract described in Emerson’s deed to bo surveyed, and then proved the trespass committed by the defendant in tho winter of 1841. The defendant then introduced an office copy of a deed from one Ezra Kimball to Jonas B. Bowman and Frederick G. Stark, dated on tho fourth day of August, 1828, and copies of sundry mesne conveyances, the last of which was a deed from Jonathan Kimball to Archibald G. Stark and John Campbell, dated on the eighteenth day of April, 1843. He then offered in evidence a memorandum in writing, under seal, given by Jonathan Kimball to said Stark and Campbell, of which the following is a copy: “ Whereas Archibald Stark and J ohn Campbell have heretofore entered upon and cut trees and wood on land this day quitclaimed by mo to them, now Í hereby consent to and approve all and whatever has been so done by said Stark and Campbell, as being done by my authority, and tho right and title I have or might rightfully claim in said premises. Witness my hand and seal this 18th day of April, 1843. (Signed,) Jona. Kimball.” (Seal.) Tho tract convoyed by Kimball lies east'of Samuel Hoad’s land, which is between it and the locus in quo. The defendant contended that the loer,s in quo was de,scribed in, and passed by the deeds aforesaid. For the purpose of explaining the description in the deeds introduced by the defendant, and of proving that the place of the trespass was not described in, and did not pass by them, the plaintiff introduced an office copy of a deed from Jesse Kimball to Ruth and Phoebe Kimball, dated on the 14th day of August, 1806. The land described in this deed is the land of Samuel Head, above mentioned. He also offered a copy of a deed from Dearborn Whittier and his wife, (who was formerly Phoebe Kim-ball,) and Ruth Kimball, to Samuel Head, dated on the 10th day of June, 1817, and sundry other mesne conveyances, the last of which was a deed from the administrator of Samuel Stark, jr. to the defendant, dated on the 22d day of .May, 1841, and under which the defendant claimed. The defendant proved that more than forty years ago the said Ezra Kimball had cut wood and timber on the land in dispute, and also that Samuel Stark, jr., soon after the date of his deed, which was from Samuel Head, and was dated in the year 1835, went upon the bous in quo and cut wood from it, and that about four or five years ago he planted two thirds of it. The bous in quo is not included in terms in the deed from the administrator of Samuel Stark to the defendant. The jury returned a verdict for the plaintiff, which the defendant moved to set aside.