Kinsell & al. vs. Daggett & al., 11 Me. 309

Parris J., at a subsequent term, delivered the opinion of the Court. We are not called upon to weigh the evidence in this case, as the motion to set aside the verdict, because it was not warranted by the evidence, has been withdrawn. Our only inquiry is as to the correctness of the instructions given to the jury; and whether those requested by the defendants, and not given, were properly withheld.

The plaintiffs’ dam was built in 1804, extending quite across the river; but inasmuch as the title was then in the Common* wealth, the erection and continuance of the dam did not operate as a disseizin, and so the jury were instructed, The grant from the Commonwealth to the trustees of Lincoln Academy, in 1806, passed the legal title, notwithstanding the possession of the occupants. Barnabas Freeman was, and had been for many years in possession of the north side of the river, and the conveyance to him in 1811 confirmed his title.

Kinsell’s dam, however, covered a portion of the tract included in Freeman’s deed, and although the erecting or maintaining the dam would not operate a disseizin of the Commonwealth, while the fee remained there, yet it might so operate after the conveyance to an individual.

Whether the Lincoln Academy held the land on the north side of the river in trust for Freeman, or otherwise, subsequent to the conveyance from the Commonwealth, there can be no question but an open and exclusive possession of any portion of it by Kin-sell, claiming it as his own, and holding it adversely to the rights and claims of all others would be a disseizin of the owner, whether that owner be Freeman or the trustees of Lincoln Academy.

If Kinsell continued the dam across the channel and to the north bank of the river. subsequent to .the conveyance from the Commonwealth ; if he occupied it openly, exclusively and adversely to the rights and claims of all others, claiming the right in himself, in our judgment, it comes fully up to a disseizin; and we cannot perceive how this is to be avoided by the fact that he had thus occupied it while the fee was in the State.

The defendants contended at the trial, and requested to have the jury instructed, that there could be no disseizin without a manifestation of change of purpose, or of conduct in the person holding possession. What change could there be that would more effectually deprive the true owner of the enjoyment of his estate, or be more indicative of the intentions of the intruder upon his rights ?

Holding exclusively and adversely, and openly, are the highest acts in the power of the disseisor to indicate his intentions ; — and if he thus hold prior to the conveyance from the State, what more could he do subsequently, to constitute a disseizin. Suppose he had been in the exclusive possession of the whole lot at the time of the grant to Lincoln Academy, and he had continued to occupy and improve it thereafterwards for upwards of six years, greatly enhancing its value by his labor and expenditures, would he not have been entitled to the value of his improvements under our statute ?

Or if he had thus continued in possession for upwards of twenty years, would not the right of entry have boon tolled ? Whether Kinsell did bold openly, exclusively and adversely, was a question of fact for the decision of the jury. We think the instructions given by the Court, in answer to the defendants’ second request, were correct. The jury wore also instructed that a disseizin of those who are capable of being disseised, must be hostile in its commencement to the rights of the true owner, and that a mixed possession will not constitute a disseizin.

As the jury found for the plaintiffs, they must have found that Kinsell’s possession was not in submission to tbe rights of the defendants’ grantor, or under an acknowledgment of his claim; that it was hostile and exclusive, that is, bolding him out, not permitting him to enjoy even a mixed possession. This was clearly a disseizin, and, during its continuance, the disseisee could make no valid conveyance of that portion of the premises thus adversely held by Kinsell. The law, as contended for in tbe defendants’ fourth request, would have been applicable if the facts assumed had been proved.

But the jury have negatived the facts. They have found that the dam was not used in common by the plaintiffs and Freeman, but used by the plaintiffs exclusively and adversely to Freeman ; and it w7as not within the province of the Court to instruct the jury as to the facts. The request was, that the jury might be instructed that the dam had not been so exclusively used by tbe plaintiffs as to constitute a title by disseizin. How the dam had been used was the important fact to be decided.

Tbe Court left that to the jury, at the same time instructing them that in order to constitute a disseizin, the plaintiff)’ possession must have been hostile in its commencement, exclusive and adverse, and that a mixed possession would not constitute dis-seizin. If the Court had gone further and responded affirmatively to the defendant’s fourth request, it would have been encroaching upon the rights of the jury, and afforded a just ground of complaint to the adverse party.

The deed to Kinsell, in 1816, bounding him by the river, carried him to the channel and no further, and even if he had claimed farther, the trustees of Lincoln Academy or their assigns could grant him nothing beyond, as they had previously granted the residue to -Barnabas Freeman, in 1811. But Kinsell’s taking this deed bounding him by the channel of the river, did not estop or disqualify him forever thereafter from disseizing Freeman.

He might the next day, as well as the day previous, have forcibly entered as a disseisor upon the whole of Freeman’s lot, ousted him of his possession, and held him out, and Freeman, in order to have regained possession by writ of entry must have considered it a disseizin. If, as the defendants contended under their fifth and sixth requests, Kinsell, by taldng his deed in 1816, is estopped to claim beyond the bounds of his deed, how far is that estoppel to operate ? Certainly not to defeat rights subsequently acquired.

Kinsell might extend his bounds by purchase, or he might acquire rights by occupancy, which-could in no way be affected by his former conveyance ; and if subsequent to that conveyance, he disseised Freeman, and that disseizin was continued up to the time when the latter conveyed to the defendant, it is clear that such conveyance was inoperative, so far as it related to that portion of the premises of which the grantor was disseised.

Upon a critical examination of the instructions given to the jury, we are unable to perceive any thing erroneous or which is not clearly in accordance with well established and settled principles. Neither do we perceive that any of the instructions requested by the defendants were improperly withheld. Upon most, if not all the questions of law raised in the defence, the charge of the Court was in accordance with the views of the defendants ; and if more full or explicit instructions were desired, it was incumbent on the party wishing them to request that they should be given.

Unless that was done, the omission to instruct upon any particular point, or in any particular manner, is not a cause for setting aside the verdict. From the whole case, it is manifest, that the jury found, that Freeman was disseised of that portion of the dam extending from' the channel to the rock, when he conveyed to Bulfinch, in 1834, and if that fact was properly found, there is no sufficient reason, appearing in the report, why judgment should not be rendered on the verdict.

The counsel for the plaintiffs now contends that they, and those under whom they claim, having been in possession of the place where the dam is situated for upwards of sixty years, a grant from the Commonwealth is to be presumed. That question was not raised at the trial. The plaintiffs then reposed upon the fact of a disseizin, and as the Commonwealth could not be disseised, the Court confined both parties to proof subsequent to 1S06, when the grant was made to Lincoln Academy.

The Judge was not called upon to rule whether a grant from the State could be presumed, and the parties, particularly the defendants, had no opportunity to offer evidence, if they could, to rebut the presumption. There are many authorities tending to support this position; such as The Mayor of Hull v. Horner, Cowp. 102 ; Eldridge v. Knott, ibid. 214; Roe v. Ireland, 11 East, 280 ; Goodtitle v. Baldwin, ibid. 488 ; Ward v. Bartholomew, 6 Pick. 415; 3 Stark. Ev. 1221 ; Roscoe on Ev. 17.

But as the question is not raised in the report, and its decision would not affect the result, we forbear to enter upon its discussion.