Sheldon v. Mull

Searls, C. Ejectment to recover a strip of land.

The jury rendered the following verdict: —

“ We, the jury in the above-entitled cause, find for the defendant, on the ground that he has not had possession of any of the land sued for.”

Plaintiff and defendant were adjoining owners of land.

In December, 1881, defendant constructed a fence, apparently as and for a line fence between himself and plaintiff, but which was not on the line, being over on plaintiff’s land, and leaving a narrow strip thereof on defendant’s side.

[300]The fence did not make an enclosure, extending only a portion of the way along the vicinity of the line, and at the end of such fence there was an open space by which egress and ingress could be had from and to plaintiff’s land.

At the trial plaintiff asked the court to instruct the jury as follows: —

“ It is not necessary for the plaintiff to show that the defendant surrounded the land in controversy by an enclosure. The defendant is to be deemed to be in possession of such part of the land, if any, as he occupied and used in the same manner that owners of land of like character in that neighborhood commonly occupy and use them.”

The court refused to give the instruction, which refusal was excepted to, and is assigned as error.

The court, at request of defendant, instructed the jury as follows:—

“In order to entitle plaintiff to recover the strip of land claimed in this action, it must appear to the jury from the evidence that defendant so enclosed the same as to deprive plaintiff of the possession of the same, and to appropriate the same to his own exclusive use, and that the land so enclosed belongs to plaintiff.”

The giving of which is also assigned as error.

It will be perceived that by the instruction refused and the one given the court indicated to the jury very clearly that to constitute an ouster it was necessary that defendant should have enclosed the land in dispute so as to deprive plaintiff of the possession thereof, and in defendant’s third instruction the court told the jury they must be satisfied from the evidence that by means of fences defendant so enclosed the strip of land as to deprive plaintiff of the possession of the same.