Citation Numbers: 8 R.I. 353
Judges: BRADLEY, C.J.
Filed Date: 3/6/1866
Status: Precedential
Modified Date: 1/13/2023
We are satisfied that the Mechanics Savings Bank, who hold under the Pike brothers, took their rights in the land originally, subject to the provisions and agreements on the *Page 357 Fox Point plat. Lot A, on the north side of what is called Pike street, was taken in express terms by the Pikes, subject to that plat. Whether the deed of lands which they received, on the south side, is subject to the plat, in consequence of some question as to the time when the agreement upon it was made, it is unnecessary to decide. At all events, as owners of lot A, they hold this street as originally subject to the rights marked out and specified to exist on the plat.
We also hold that the filling out and projection of Pike street, into the water, was done originally under, and pursuant to, the plat; and therefore it was filled out for the purpose of a street or highway, and did not become private property. There are two decisions upon that point, — Morris v. Jersey CityCanal Co. 1 Beasley (N.J.), 547, 558, and the case in 4 Denio, 9, cited therein, — expressly deciding that an individual who fills out a highway or a private way does not acquire, by force of that act of filling, an ownership inconsistent with the rights of way over the extended street.
There is another ground in argument, upon which the bank rely, as claiming to be the owners of this tract of land called Pike street, — the statute possession for twenty years. The record, in the first case under which that point was argued, does not raise any such claim. The bill is brought by Peck Salsbury to enjoin the Providence Steam Engine Company from tearing down certain sheds, which the plaintiffs occupied, upon the street, and have held there for a number of years. The Steam Engine Co. answer to that bill to enjoin, that, in the first place, they own certain portions of the land themselves, not the entire premises, and that they also have the right of way over the premises covered by these buildings. The replication is the general one allowed under our rule.
It is obvious, from this state of the record, that the question of statute title, by possession for twenty years, is not made in this case. This difference between the rules of common law pleading and equity pleading sometimes escapes the attention of counsel. Upon the first case we could not decide the question *Page 358 of statute title by possession. As it is not made on the record, our decision would not determine the rights of parties.
In the second case, however, this question is made. And though that case was not formally discussed before us, yet we have a right, under the agreement upon the record, to consider all the evidence applicable to that case. The Steam Engine Co. are there the complainants, and they seek to establish affirmatively their right to this way, at least their right to use it as such. The answer sets up the adverse possession as one of the grounds of the defence, so that, in that case, such a title might be open for adjudication upon the record; but it is not entirely clear whether the claim is for a fee simple in the premises, or a lesser claim subject to certain rights in other parties. But it is unnecessary to adjudicate the proper construction of the terms of the answer, as to which, upon first impression, we do not entirely agree, because we are all clear that this question of the existence of a statute title by possession, and of the extent of such title, should be determined by a jury. It depends upon conflicting testimony, which arises out of the acts and sayings of parties, which the jury are peculiarly competent to decide correctly. It is the policy of this State and of this Court, having confidence in trials by jury, to leave questions of fact, as much as possible, to the jury. As the cases have been thoroughly and elaborately argued it may not be improper for the Court to remark further, that there seems to be, upon the record, a difficulty, perhaps technical, in the way of the defence as to adverse possession; because, for a portion of the twenty years, the adverse possession is the concurrent possession of Asa and Jonathan Pike. In 1850, one conveys to the other all his property in these lots. He does not purport to convey any right, inchoate or complete, in this street. The deeds that are on file, in this case, are, in the view of the Court, consistent with either supposition, perhaps rather favoring the supposition of an existing street or right of way, spoken of as Pike street, extending to the channel. On the other hand, there is a great mass of testimony taken by deposition, less satisfactory than if given before the tribunal deciding the question, yet a great body of testimony, *Page 359 showing that the taking possession of this street was under a claim of right, a belief that it was private property. We shall not therefore say, upon the present trial, that the bank and its assigns have not a right to this property by adverse possession. The claim is not made, as was supposed perhaps, by counsel, upon the record in the first case, but was made, perhaps, sufficiently in the second case, and we therefore shall dispose of these bills without prejudice to the right of the Mechanics Savings Bank to bring a suit at law, and try their title by adverse possession.
In view of the argument of the question of injunction, it may not be improper further to say, that inasmuch as the occupation of this street, by these coal sheds, has existed for quite a number of years, as soon as any suit is commenced at law to establish the title by adverse possession, we shall feel it our duty, as at present advised, to enjoin the other party from proceeding to remove these sheds, upon these streets, pending the litigation. The property is to remain in the condition in which it is found, for, though the plaintiff must establish his title, he has been in possession for many years, and that is a sufficient ground for an injunction against any disturbance of that possession pending the determination of the title.
The first bill, therefore, in which the party seeks to enjoin, must be dismissed, but without costs. The second suit may remain for further order.
[NOTE. — In conformity with the suggestion of the Court, the bill of the bank was amended, and the question of title, by twenty years' possession, was submitted to a jury. By consent of the parties, without a trial, the jury returned a verdict for the bank, whereupon decrees — in favor of the bank, in one case, and of Peck Salsbury, in the other — were entered. — Rep.] *Page 360