Small v. Clifford , 38 Me. 213 ( 1854 )

Tenney, J.

— In addition to the points involved in the case of Brown v. Clifford, ante, p. 210, the question was raised under the pleadings whether the tenant had ousted the demandant of the undivided portion of the farm set off to him. Evidence was introduced tending to prove, that the tenant claimed title to the whole of the farm, while in possession thereof, at the time when he was not in person upon the land. The Court was requested to instruct the jury, that words uttered off the premises, and unaccompanied by any acts preventing the entry of the demandant, could not constitute a disseizin.

No question was made that the tenant was in possession of the farm. From this fact alone an ouster is not to be presumed; but it may be proved by a notorious claim of exclusive right accompanying exclusive possession. If a tenant in common enter into the actual and exclusive possession of lands, taking the rents and profits to his own use, and openly asserting his own exclusive property in the lands, denying the title of any other person, it is an adverse possession by him, and an ouster of the other tenants. Stearns on Real Actions, 41.

Judgment on the verdict.

Rice, Appleton and Cutting, J. J., concurred.