Nathan Beecher v. Josiah Parmele and two others, 9 Vt. 352

The opinion of the court was delivered by Redvield, J. If an entire lot be owned by different proprietors, who are in possession of separate parcels of the lot, and a divisional line is acquiesced in for fifteen years, it is thereby established. If no line of division be in fact drawn, but the parties acquiese in an imaginary line of division, this is the same as if the line had been marked by visible monuments.

If a person'own the whole of a lot, and convey a given number of acres oft one end, or one side, this is to be understood by a line parallel to the lot line, If two own a lot in equal portions, in severalty, but in fact not divided, and enter on extreme parts of the lot, each upon his own portion, it will be considered, that they intend a division by a line drawn through the centre, leaving the two parts as nearly similar, as they can be and be equal. These propositions in relation to conveyances have been considered, as settled, for many years.

In Orleans county, on the last circuit, it was decided, that the levy of an execution upon a specified number of acres, “ oB c.f the east end” of a lot, the lot being in a rectangular- form, was a sufficient description by metes and bounds. And in the present case, the parties owning equal parts of the lot, and having evinced an acquiescence in a similar divisional line, drawn from one apex of the triangle, it must of course be drawn to such point in the opposite side, as will divide the land equally.

The question whether the defendants had such a previous possession of the land in dispute, as will prevent their being sued as trespassers, does not seem very different from the main question in the case. If the defendants had possession of the land first, and had equal right to the land, they should, and under the charge of the court, would have recovered.

If they went into possession without right, and as mere trespassers upon the plaintiff’s rights, he having a superior right tq the land, he might well put the defendants out of such wrongful possession, and if he did it by force even, he would acquire a rightful possession, and would, at most, only be liable fqr a breach of the peace, or a trespass upon the person of defendants. It was formerly considered that the proprietor of land, who found an intruder in quiet possession of the same, must resort to his legal remedy, and could not forcibly expel such wrong doer.

But it is now well settled, that such intruder may be forcibly expelled, so far as the land is concerned. If the owner of the land is guilty of a breach of the peace, and trespass upon the person of the in-trader, in so doing, he is liable for that, hut his possession of the land is lawful, and he may maintain it, or sustain any proper ac-for an infringement of it. The declarations of Boothe, while in possession of the land, whether as tenant or proprietor, were correctly admitted. It was material for the jury to determine whether any divisional line had been acquiesced in.

Boothe had been in possession of the portion claimed by Buckminster, and in the chain of occupants, under whom Buckminster claimed, and, while so in possession, had disclaimed all pretension to hold or occupy the land in dispute, by pointing out a different line. It does not appear that he had been in possession for fifteen years, but he and others had been in continued possession of the portion of the lot, claimed by Buckminster, for more than fifteen years, and the line claimed by them was important to be ascertained.

This could only be done by knowing what claims or declarations, in regard to the line, they had made while in possession. These claims or declarations were the facts for the jury to find. Their force did not depend upon the veracity of the person, who made them ; for whether Boothe had been false or fair spoken, was all the same. The question was, did he make the declarations, or, in other words, was a line acquiesced in by both the claimants, giving the land in dispute, to plaintiff — and this for more than fifteen years ? If so, that line became conclusively established.

That can only be determined by knowing what claims the several occupants made, while in possession of the land. This is much like the case of an agent, who goes to another for the purpose of making a demand or giving notice. The declarations of the agent, at the time and place, and to the opposite party, are the facts to be found. The agent may be called or not, at the option of the party. If called, the party is not bound by his testimony. If he denies making the demand or giving the notice, other witnesses may be called, or they may be called in the first instance.

So, had Boothe been called, and denied making these declarations, the plaintiff might still have shown by other witnesses, that he did, in fact, make them. Judgment affirmed.