Gillespie v. Jones

By the Court, Niles, J.: 1. It is urged by the appellant that the plaintiff did not aver in his complaint the adverse possession of the demanded premises, by himself or his grantor, for the period of five years prior to the commencement of the suit. But the plaintiff’s ownership in fee and right to the possession of the land at the date of the commencement of the suit is averred, and under this he might prove any facts which would entitle him to possession at that time. The averment that the plaintiff’s grantor had been in possession for more than five years was superfluous, and it cannot be material that such possession was alleged to have been actual, and not distinctly alleged to have been adverse.

2. The claim that the projection of Murray’s front house over the land in controversy was a- disturbance pro tanto of the possession of Washburn, the grantor of plaintiff, cannot [264]be maintained. No part of the walls of the building rested upon the land within Washburn’s inclosure. The projection was several feet above the land, and the fence inclosing the lot in controversy ran in a direct line from front to rear, and under the projection. The maintenance of the house for a sufficient time in the position in which it was constructed might become evidence of an easement, and the right to continue it in the same position might be thereby acquired. But it was subsequent in date of erection to Washburn’s inclosure, and was not inconsistent with the only use Washburn had occasion to make and was actually making of the land. (Thacker v. Guardinier, 7 Met. 484; Carbrey v. Willis, 7 Allen, 365.)

3. There was at least sufficient evidence of adverse possession to make a case for the consideration of the jury, and the motion for a nonsuit was properly denied.

4. There was no error in the charge of the Court that calls for a reversal. Certain detached portions of the charge, considered separately, may be subject to criticism. But it must be read as a whole, as it was given to the jury; and so read, it fairly stated the law applicable to the case.

5. It was competent for the Court, upon discovering, upon a motion for a new trial, that the description contained in the complaint and the description of the judgment, following a general verdict for the plaintiff, included more land than was conveyed to the plaintiff by his own deed from Washburn, to order a new trial, unless the plaintiff should remit the excess and dismiss his action to that extent. There was no. uncertainty in the discrepancy between the land described in the deed and that described in the complaint. The verdict determined, substantially, that the plaintiff’s grantor had adverse possession of the entire tract for a period sufficient to confer title by virtue of the statute of limitations. It was evidently unnecessary to refer this question to another jury. The land conveyed to the plaintiff being less than the whole tract by an amount rendered certain and definite by the terms of the deed, which was the sole foundation of his title, it was in the power of the Court to require a remission of the excess as the condition