Parker v. Parker , 83 Mass. 245 ( 1861 )

Hoar, J.

The court left it to the jury to find whether the land in controversy was “ wild, uninclosed land,” upon all the evidence in the case; and instructed them that, if they found it to be such, the evidence of occupation was not sufficient to show a title by possession. We think this instruction was correct, and well supported by the authorities. There is a fallacy in the defendant’s claim that his assumed possession, “ doing all those acts upon the land which good husbandry requires,” would give him a title. Good husbandry required very little to be done, in a period of twenty years, upon land devoted to the growth of wood, and left wild and uninclosed. The acts of possession were few, intermittent and equivocal. To constitute a title by possession, the possession must be adverse, exclusive and continuous during that period. In the intervals óf adverse enjoyment, the possession is regarded by the law as following the title. The case of Slater v. Jepherson, 6 Cush. 129 is decisive, and was a stronger case than the one at bar.

On the second point taken by the defendant, we can see no just ground of exception. He asked the court to instruct the jury “ that the plaintiff Peabody could not maintain the action by any title to the land in controversy, which the plaintiff Parker had acquired at the time the wood was cut.” The action was tort for the conversion of wood cut upon land to which the defendant asserted title, and which the plaintiff Parker claimed that he owned originally, and had conveyed an interest in to Peabody, by a deed which was not produced. But if Parker’s original title were valid, and the defendant proved no title, then the defendant was a wrongdoer. And if Peabody and Parker were jointly in possession of the wood at the time the defendant took it, Peabody claiming to own a part of it, and Parker acknowledging his right, they could maintain an action against a wrongdoer without showing a valid conveyance of the land by deed from Parker to Peabody. Exceptions overruled-