Farrar v. Merrill , 1 Me. 17 ( 1820 )

Mellen C. J.

Upon the facts reported by the Judge who .sat in the trial of this cause, there seems no question that Samuel Dwelley the elder was one of the original proprietors in common of the tract of land of which the demanded premises are a part; and unless the facts disclosed in the defence can be considered as furnishing a sufficient ansvrer to the action, the title of said Dwelley seems to be regularly deduced, and the demand-ant entitled to recover. Indeed no question has been raised on this head by the counsel in the argument of the cause.

The counsel for the demandant has relied upon two objections;—one, to the admission of a certain paper bearing the name of David Little placed against the right of Samuel Dwelley; and also the right of one Roach. This paper, though objected to on the trial, was admitted by the Judge to go in evidence to the jury. The other objection is made to the instruction given by him to the jury, as to their authority to presume a grant to Little, if they believed the facts which had been proved by the tenant.

There seems, in the exceptions, to be no particular objection to the opinion of the Judge admitting the paper just méntioned ; but only to his instructions to the jury. However, we have examined both points.

The paper was found among the other papers in the office of the proprietors’ clerk ; but was not signed, nor authenticated or referred to in any particular vote or proceedings of the proprietors ; and being viewed alone would seem to be inadmissible as proof; though the facts appearing on the records of the proprietors go far to strengthen the presumption that David Little was, at the time the paper eras made and left in the office, the owner of Dudley’s right. But we consider the question as to the admissibility of the paper as wholly unimportant in the view we liave taken of the cause ; for we are all of opinion that the facts appearing on the undisputed records of the proprietors, taken in connection with some other facts which have been proved, fully justify the instructions and opinions delivered by the Judge to the jury, and the verdict which the jury have returned. It is our duty, in deciding on the exceptions, to look to the whole evidence, and not disturb the verdict when the facts proved, independent of the paper objected to, furnish the tenant with a substantial defence.

By the records it appears that David Little, as early as the year 1740, was noted as a delinquent in taxes;—that in 1768 and 1770 he was elected into offices, arid in various capacities served the proprietors ;—that he was found at their meetings, acting with them;—that in 1769 he paid taxes on the right of Samuel Dwelley, and that the lot demanded was drawn to his rieht in November 1781;—that in 1777 David Little conveyed to Nathaniel Waterman (under whom the tenant claims) one sixty-fourth part of the general tract, being the original right of Samuel Dwell ey;—that the lands have always remained unoccupied and in a state of nature;—that since the year 1738, down to May 1815, no claim to this land was ever made by Samuel 'Jhedley or any of his descendants, or any persons claiming under hirn or them by purchase, except David Little and his representatives;—and that in May 1815 the demandant made a formal entry on the lands, before the commencement of this action.

p.n this proof, and in these circumstances, it is contended that the jury could not legally be permitted to presume a grant to David Little by Samuel Dwelley of his right in common ; because the presumption is against the record of the proprietors, no part of which is pretended to be lost, in answer to this it may be. said, that so far as the records state, so far they support the presumption. But the objection is founded on the supposition that the conveyance of the right of Dwelley to Liltle must appear on the records of the proprietors. There seems, however, no ground for this; because such transfers of common rights are usually by deeds; and surely an unrecorded deed may be presumed, after a lapse of nearly eighty years, when legal principles do not forbid it, and when facts strongly support the presumption. But the counsel for the demandant has produced several authorities to shew that unless those claiming under the presumed grant have been in possession, no legal presumption can arise ; and that, like a prescription, it must depend on such possession. We are not disposed to deny the principle of the cases cited. The reason of the law in these cases is, that where the possession of the lands claimed has been openly held by others adversely to the claim of him who would presume a grant, such possession repels the presumption. But this principle cannot apply to wild lands where no visible possession can exist. There is nothing, then, in this case, of a nature to repel the presumption ; but, on the contrary, an age of silence oh the part of all those under whom the demandant claims; and the admission of the proprietors, in their meetings for nearly forty years before the dissolution of the proprietary, that Little was a proprietor; so far as they could admit such a fact by allowing him to attend and vote at their meetings, and join in the duties and services devolving on their officers. This is a circumstance, equal, perhaps, to open possession, in favour of the presumption ; and there is not a solitary fact since the year 1738 to oppose it, except the entry of the demandant in 1815.

We think the Judge was correct in submitting all these facts to the consideration of the jury ; that his instructions to them were proper; and that the conclusions drawn by them were fully authorised.

Judgment on the verdict.