Rufus Blake vs. George R. Freeman, 13 Me. 130

Weston C. J. It is a principle of law well settled, that every action for the recovery of the seisin or possession of land, shall be brought in the county where the land lies. This action then was rightfully brought in the county of Lincoln. Where an action, local in its nature, is brought in the wrong county, the defendant may either plead the fact, or demur, if it appears on the record, or take advantage of the objection at the trial. Hathorne v. Haines, 1 Greenl. 238.

Subsequent to the action, but prior to the trial, the town of Litchfield, where the land is, was by law detached from the county of Lincoln, and made a part of the county of Kennebec. The court in the county of Lincoln, being once lawfully possessed of jurisdiction of the action, had a right to proceed to judgment. It could-not be transferred to Kennebec. A change of the venue is not known in our practice. The mere civil relations assumed by Litchfield, in pursuance of law, could never bo intended to abate or defeat actions actually pending, for the recovery of lands in that town.

If the action must by law be brought in the county of Lincoln, it must of necessity be there tried. Where an injury has been committed in one county to land situate in another, or wherever an action is founded upon two or more material facts, which took place in different counties, the venue may be laid in either. Bulwer’s case, 7 Coke, 27; Gregson v. Heather, 2 Strange, 727. Scott v. Best, 2 T. R. 238. If in these cases, the locality of actions is affected by special circumstances, there is in this case a stronger necessity, that the action should be tried in the only county, in which it could have been brought.

And we are of opinion, that the plea in abatement of the action, and the motion to the same effect, were properly overruled and rejected. With regard to the instructions, the presiding Judge left it to the jury to determine, whether the acts and occupation relied upon, as constituting a disseisin, were under a claim of right, or adverse in their character. To this there could be no objection.

The greater part of the time, during which the tenant relied upon a disseisin by himself, or those under whom he claimed, was anterior to the statute of 1825, c. 307, upon which his counsel relics, as introducing a new rule of law, on the subject of disseisin ; and what the judge stated in regard to fences, was in conformity to the rule of law applicable to that period.

And what was a dis-seisin before, would be subsequently The statute of 1825, however, declares surrounding fences, or other equivalent obstructions, not essential to a disseisin, but that it may be proved by a possession, occupancy and improvement, open, notorious and exclusive in its character, and comporting with the ordinary management of similar estates, in the occupancy of those, who have title thereto.

The Judge, in submitting the case to the jury, gave it as his opinion, that the passing over the uninclosed ground of another as a dooryard, or the building of a cowyard upon the land of another, using it as such in the summer, and then taking away the fence, would not constitute a disseisin. These intimations had reference to, and are qualified by, the facts and circumstances of the case, which had been submitted to the jury. It appears that the triangular piece of land in controversy, was not considered worth fencing by the owner, and was left open.

The use occasionally made of it by the tenant, has the appearence rather of a matter of favor and indulgence, than as an adverse claim, calculated to put the owner upon his guard. No witness has been brought to state, that the tenant ever claimed the land as his own. Upon the whole, it appears to us, that there was no sufficient evidence of a disseisin, either prior to the statute of 1825, or under any new rule, which that statute may have established. Judgment on the verdict.