Saco Water Power Co. v. Goldthwaite , 35 Me. 456 ( 1853 )

Wells, J.

— The parties have agreed, that “if the Court shall be of opinion, that the petitioners by such a possession and occupancy of the premises as were testified to by the witness, could acquire such a title as would enable them to maintain their petition, but that the respondent by her disseizin, which commenced less than twenty years before the filing of their petition, but has now continued more than twenty years, has acquired ‘a perfect title, then Edward E. Bourne, Esq. is to hear the parties, and decide as to how much she has acquired a title to, by an exclusive and adverse possession for more than twenty years, and as to that judgment is to be rendered for the respondent, and as to the residue described in the petition, for the petitioners.”

If the petitioners do not show any title to the premises of which partition is sought, by documents or records, except to their proportions of the mill and privilege as described in their petition, it appears by the evidence, that the mill owners had used the premises for more than twenty years before the entry by the grantor of the respondent, by piling logs, timber and boards upon them. The possession and occupancy consisted in the use of the- premises as a mill-yard. And such use of the premises, excepting that part of them taken by the grantor of the respondent, was continued by the mill owners. It does not appear to be necessary to decide what effect should be given to such acts against one having a lawful and valid title. For the grantor of the respondent, when he erected his house in 1830, had no title to the land, and it is admitted that he was a disseizor of the lawful owner. He entered upon those, who were then -using the premises as a mill and lumber yard. They might have had title, it does not appear, that they had not. The presumption is that they were acting lawfully until their acts are shown to be unlawful. The manner in which they occupied the land, without any exhibition of title on the part of others, would be prima facie evidence of title in themselves against a mere stranger to it. Stearns on Real Actions, 239.

It does not appear whether the petitioners or their grantors were, in the occupation of the premises, at the time when the grantor of the respondent commenced his possession. In the absence of all proof of an outstanding title in third persons, the occupation of either would be presumptive evidence of a title in them. Whoever the occupants were at that time, they were dispossessed of that part of the premises of which the respondent or her grantor took possession. The remainder of the premises after such possession taken, would be subject to the same presumption as previously existed, and the petitioners while in the occupation, would be entitled to the benefit of it.

The respondent could have no legal ground to den}" to the petitioners the dominion over such part of the premises as was not in her possession, nor to interpose any obstacle to a partition of the same.

When the petition was filed, the disseizin made by the grantor of the respondent had not continued twenty years, but at the time of the trial more than twenty years had elapsed since it first commenced. The pendency of the petition is not considered as having the effect of a writ of entry, and as putting an end to the disseizin. The object of the petition is a division of the land between those, who have lawful title. When the petition was filed and notice given, the respondent had no title, her appearance before her title accrued could not deprive her of rights subsequently acquired. Tilton v. Palmer, 31 Maine, 486. By statute, c. 121, § 9, the respondent might, on motion to the Court, at any time before judgment be allowed to appear and defend. At the time of the trial, her adverse seizin had ripened into a perfect title. There could have been no objection to her appearance then, if she had not appeared before. Her right did not depend upon tbe time when she entered her appearance upon the docket, but upon the title, which she presented at the trial.

Judgment is to be rendered in favor of the respondent for that part of the premises to which the commissioner shall find she has acquired a title by disseizin, and partition is to be made of the residue according to the prayer of the petition.

Shepley, C. J., and Tenney, Howard and Appleton, J. J., concurred.