Bradshaw v. Treat
Before: Murray
Synopsis
Tn an action for the recovery of a portion of a tract of land, both parties relying on possession, and the defendant proving a prior possession by. actual enclosure of the entire tract, it was error to instruct the jury that the defendant’s possession was not valid, unless in conformity with the pre-emption laws of the United Slates, or the possessory law of this State.
The opinion of the Court was delivered by Mr. Chief Justice Murray. Mr. Justice Terry concurred.
The second, third and fourth instructions of the Court, are erroneous, as applied to the case made on the trial below. The plaintiff'declares in ejectment, and the defendant relies upon his prior possession, which must prevail, except where paramount title is shown in the plaintiff; hence the instructions of the Court upon the subject of possessory claims under the laws of this State, as well as pre-emptions under the Act of Congress, had nothing to do with the case.
The evidence shows that the defendants were in possession in 1849 or 1850, having the whole of the premises enclosed by a wall; that they used the land so enclosed for pasture. This was as legitimate a purpose as any other that it could have been devoted to, and certainly, [173]taken in connection with the enclosure, was sufficient as against any subsequent intruder or trespasser.
Judgment reversed, and new trial ordered.
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