Look v. Norton , 55 Me. 103 ( 1866 )

Danforth, J.

As early as 1827 the plaintiff took possession of the land upon which the alleged trespass was committed, and moved upon it in October, 1828. From his own testimony, we learn that, when he took possession, he expected to get a title from the owner by purchase; that, after having been sometime iu possession, he did not consider that he then had a title, because he had not been in possession twenty years. What effect this testimony may have upon his title, it is not necessary for us to determine. There can' be no doubt, from the testimony in the case, that, at the expiration of the twenty years, and previous to the trespass complained of, he was in possession of the locus in quo, claiming it as his own. This possession and claim continued up to the commencement of the action. This, though at the time of the trespass had continued less than twenty years, gave him a title against every one who could not show a better claim; and was sufficient .to enable him to maintain his action against a mere wrongdoer. Kilbourne v. Revere, 8 Gray, 415; Moore v. Moore, 21 Maine, 350; Hunt v. Rich, 38 Maine, 195.

The defendant attempts to justify under. Mr. Lippincott,who is claimed to be the true owner. The testimony, however, fails to show any title in him. He has only a quitclaim deed from Asa Tucker, under which he never took possession ; while Tucker’s possession, so far as he had any, was in subordination to that of the plaintiff. But, if Lippincott had the title, the defendant shows no permission to himself; he therefore cannot avail himself of that title. Merrill v. Burbank, 23 Maine, 538.

As to the question of damages, they must be commensurate with the injury. The plaintiff had the same possession and claim of title to the trees and wood carried away, which he had to the soil. He is therefore entitled to recover for their value, as well as for the injury to the land. Cutts v. Spring, 15 Mass., 137.

Judgment for plaintiff, and, according to the agreement of the parties, damages are to be assessed bp Bhadrack L. Wass of Addison.

Appleton, C. J., Cutting, Kent, Dickerson and Barrows, JJ., concurred.