Fifield v. Bailey

The action of Sulloway in building the bank wall thirteen feet west of the bank of the brook, and filling up the space behind the wall and occupying, certainly turned the plaintiff out of his possession. It also obliterated the bank of the brook, and established a new bank thirteen feet west of the former. In 1866, three years after, Sulloway conveyed to the defendant, describing the land as bounded on the east bank of the brook, — and the defendant took possession, and occupied up to the bank wall. It would seem not to admit of a doubt that Sulloway's deed did purport to convey the land up to the west side of the bank wall, and the defendant under this deed occupied all the land it described. These acts of Sulloway clearly amounted to a disseizin of the plaintiff, and the defendant, having taken a deed from Sulloway, was clearly in possession claiming a fee.

Now, it is true that under these circumstances the plaintiff might have maintained trespass for the original act of turning him out of possession, and for any acts done afterwards by Sulloway or by the defendant, and that the law would, according to the doctrine of Hatch v. Partridge,35 N.H. 157, presume an entry for the purpose of supporting a writ of entry or all action of trespass; still, it is only at his election that this takes place.^*

The plaintiff may well say to the defendant, — "You have disseized me; you have taken possession of my land, claiming a title, and on the land which you so possess you maintain all embankment which floods my other land; you are welcome to the land of which you or your grantor have forcibly dispossessed me, but you are not to make use of it for the purpose of maintaining a nuisance and doing all injury which you could not lawfully do if you had a better title to the land."

We think that the plaintiff being disseized, and the defendant being in possession as disseizor, neither he nor his grantor having done any act showing a relinquishment of their claim until it was found convenient for the purpose of evading this suit to do it, the plaintiff is not obliged to take back his land with the nuisance upon it; he is not obliged to bring all action for the support of which the law would presume a reentry; but he may have his remedy in case against the defendant for maintaining a nuisance upon land which he has held hitherto, claiming to be the owner in fee. Towle v. Ayer, 8 N.H. 57-62; Walker v. Wilson, 4 N.H. 217.

^* As to "an election of actions," see Woodbury v. Woodbury,47 N.H. 22, 23, and Carleton v. Cate (Grafton county), August term, 1875. REPORTER.