Kidder v. Kennedy , 43 Vt. 717 ( 1871 )

The opinion of the court was delivered by

Peck, J.

The action is trespass upon lot No. 125 in Bolton. The plaintiff claims to recover by virtue of a possessory title or right in himself and those through whom he claims. In his chain of deeds showing color of title, is one from Moses L. Colton to E. D. Colton, dated November, 1849; a deed from E. D. Colton to Thomas Owens, dated May, 1857, and a deed from Thomas Owens to the plaintiff, dated November, 1864. In the deposition of P. D. Colton, introduced by the plaintiff to show, among other things, possession of the deponent under his deed, there is a passage, to the admission of which by the county court the defendants except. The deponent says, “Prom the'time I took my deed of said lot till I sold the same, my occupation was uninterrupted otherwise than by the trespass of said Clough.” The objection urged by the defendants’ counsel against this portion of the deposition is, that what constitutes occupation, or occupation uninterrupted, is a conclusion of law and fact, to which it is uot competent for a witness to testify ; that the witness should state the facts, and leave it to the court and jury to draw the conclusion. In some cases occupation of real estate is made up of a series of successive acts of possession ; and in other cases it is railer in the nature of a continuation of the same act; but in either view we are not prepared to say that occupancy is so far a question of law as' to render it incompetent for a witness to testify to it in general terms ; although, without some explanation as to the mode or character of the occupancy, such general statement would often be open to criticism as to the weight of the evidence. But the whole objection to this testimony rests on the assumption of the defendants’ counsel that it is to be treated as independent evidence of an occupancy by the witness. But we put a different construction upon this paragraph ; a construction which we think appears quite obvious when taken in conuection with the rest of the deposition. The witness had already stated what he did upon the lot under his deed, and had testified not only to particular acts indicating a claim of title on his part, but also to particular acts by him upon the lot, during that time, which were unequivocal acts of possession. He then stated that while men in his employ were engaged in putting up a log-house on the lot, having left their tools in the house, and being temporarily absent, one Clough entered and commenced finishing the house, for which the witness brought an action of trespass against Clough. When in this connection the witness proceeds and says, “ From the time I took my deed of said lot till I sold the same, my occupation was uninterrupted otherwise than by the trespass of said Clough,” he is not to be understood as testifying to any other or additional occupancy by him than that which he had already particularly described ; and it was 'admissible for the witness to allude to it as an occupancy, in his denial of any interruption except in that instance by Clough. This was the construction given to it at the trial, as indicated in the remark made by the presiding judge in overruling the objection. It is urged that the jury may not have so understood it, as the court gave no instructions on the subject in the charge. If the counsel feared the jury would give too broad a construction to it, they should have asked the court to notice it in the instructions to the jury- The exception is only to the admission of the evidence ; and it being admissible, there is no error.

It is insisted that the court erred in not charging the jury, as requested by the defendants’ counsel, “ that no entry or possession of Moses Colton which the evidence tended to prove prior to the defendants’ entry and survey of October, 1849, was sufficient to give him any prior possession.” But the court told the jury that previous to the deed of Moses L. Colton to E. D. Colton of November 29,'1849, no possession was claimed on the part of the plaintiff that would be effectual. This was a sufficient compliance with the request, as that deed is of later date than the defendants’ survey of October, 1849.

The county court gave all the effect to the survey of the lot in October 1849, by Samuel Kennedy, under whom the defendants claim, the re-marking of the lines and recording the survey, that they were entitled to. The cutting of some small trees and bushes along the line, as convenience required in making the survey, did not change its character or add to its legal effect. It was an evidence of claim, but not an act of possession. As an evidence of claim of title, it would tend to characterize an act subsequently done upon the premises, as an act of possession, which might otherwise be regarded as but an act of trespass; but it was not itself an act of possession. As the court told the jury, it did not have the effect to put the plaintiff into possession. Doolittle v. Linsley, 2 Aik., 155, is cited to show that the survey and recording the survey bill is sufficient to constitute possession. In that case the plaintiff recovered by virtue of prior possession. He had taken wood and timber from the lot from time to time for a number of years, under claim of title. But the language of Skinner, Ch. J., is relied on as showing that the survey and recording amount to possession. Skinner, Ch. J., says : “ This actual survey of the lot, and the recording of the survey, as also of the deeds, &c., are not equivocal acts, but furnish clear and decided evidence of a claim of title; the levying of the execution of the plaintiff, and thereby satisfying a debt to a large amount, and causing the record thereof to be made, is to be regarded in the same light.” This language is not used in reference to the question whether the survey bill recorded, or the levying the execution, were acts of possession; but solely in reference to the question whether there was sufficient evidence that the taking of the wood and timber by the plaintiff was under a claim of right, so as to give such acts the character of acts of possession; or whether they should be regarded as mere acts of trespass; the judge saying. that if the acts and doings of the party are not such as to evince a claim of title, he must, of course, be regarded by all as a trespasser. The survey and record in that case were treated only as evidence of claim of title ; and the county court gave the same effect to them in this case, and they are entitled to-no more.

It is insisted that the court erred in submitting the question to the jury, whether the defendants had abandoned their possession prior to the entry of Papineau in March, 1867, and cutting the logs by direction of the defendants, for which entry and cutting the action was brought. It is insisted there was no evidence tending to show such abandonment; and that if there was sufficient evidence to submit to the jury, the charge on the point of abandonment was less favorable to the defendants than that to which they were entitled. The exceptions detail the whole evidence on the subject, and in the view we take of it, there was no evidence tending to show that either of the defendants, or those under whom they claimed, ever had any possession of any portion of the lot prior to the trespass by Papineau complained of in March, 1867. There is evidence of claim of title, but no proof of any act of possession. The defendants, therefore, cannot complain of error in the charge of the court on the question of their abandonment of possession, when it appears they had no possession to abandon. The case then stood entirely on the question of the plaintiff’s possession ; and a possession by the plaintiff at the time of the trespass complained of was sufficient. This the jury have found. There was no claim at the trial, and it is conceded by the defendants’ counsel in argument that there is no ground to claim, that there was any abandonment of possession on the part of the plaintiff.

The defendants’ seventh request was to instruct the jury that upon the evidence the plaintiff was not so in possession of the lot at the time the trespasses complained of were committed, nor at the time the suit was brought, as to enable him to maintain this action. Possession at the time the writ was brought was not necessary. The question of possession at the time of the trespass complained of being one of fact upon competent evidence, it would have been error to have charged the jury according to this request.

The question made by defendants’ counsel as to the rule of damages is not within any exception taken by the defendants at the trial; but if it were, there is no error on this point of which the defendants have a right to complain.

Judgment affirmed.