Garwood v. Wood

By the Court, Rhodes, J. The findings show that in 1851, Willard was in the possession and occupation of the premises in controversy; that by various mesne conveyances the plaintiff" became the owner of all the right, title and interest of Willard, and had possession of the premises at the commencement of the action; that the several grantees of Willard’s interest successively entered upon and continuously occupied, possessed and enjoyed the premises, and that such possession was frequently interrupted by intruders, but was successfully main[250]tained. It is also found “ that the said defendant, Wood, in 1853, built a house upon that part of Strawberry Island east of and outside of the land described in the complaint, and lived there about a month, and then leased it, claiming to be the owner and in possession of the whole of said Strawberry Island, and entered upon that part of it then in possession of Willard; that in the same year, 1853, said Wood and his tenants abandoned the possession of Strawberry Island and have not since been in possession of any part thereof; that said Wood so entered on that part of Strawberry Island included in this complaint, without the consent and against the will of said Willard.”

Ho complaint is made of the findings, as we understand from the appellant’s brief in reply; but it is claimed that the Court erred in excluding the record of a “ possessory claim ” made by Wood on the 29th of March, 1853, under the Possessory Act of this State of April 20th, 1852. It was offered “ to show the intention of said Wood to hold and appropriate the land therein described to his own use, at the time of the entry.” The finding above cited clearly shows that the intention of Wood was precisely that which he desired to prove by the introduction of the record. He is not injured by its exclusion, admitting that it was competent evidence of the fact for which it was offered.

As to the point that the proposed evidence has a material bearing on the question of Wood’s abandonment of the premises, it need only be said that if the intention with which he entered is competent evidence in rebuttal of the alleged abandonment, he has the benefit of it- in the strongest possible form, in the finding, that he entered “ claiming to be the owner ” of the premises.

Judgment as to the defendant Wood affirmed.