Merrill v. Hilliard

¶1 The plaintiff’s title, so far as it is derived from the legislative grant of 1850, depends on the questions whether at that time he was a resident of the town of Pittsburg, and whether he was also in the occupation of the premises in dispute; and his title under the grant of 1860 depends on the question whether, for six months prior to the passage of that act, he had been in the “ actual possession, bona fide, and making improvements ” upon said premises. These were the only conditions that the legislature saw fit to impose upon those who might desire to avail themselves, of its grants of land in the town of Pittsburg. Whether the plaintiff fulfilled these conditions with reference to the land he now claims to own, under either or both of these grants, is a question of fact, and the referee having answered it in the affirmative, his finding is conclusive.

¶2 The fact that the plaintiff had given Day a license to tap trees on a part of the gore, and had received pay for the same, was competent to show that the plaintiff was in the possession of that part of the land, and claimed to be the owner of it. It could make no difference, on the question of his possession or his ownership of the land, whether he hired some one to tap the trees for him, or sold the right to tap them, or tapped them himself.

¶3 The evidence offered by the defendant, to show that the plaintiff and Homans had agreed upon and marked on the ground the plaintiff’s north line, was rightly rejected. It was not an agreement between adjoining owners in regard to a disputed line. It was an agreement between a trespasser, or a party having no title to the land on either side of the line, as attempted to be established, and the owner of the entire tract. Prescott v. Hawkins, 12 N. H. 26; Carleton v. Redington, 21 N. H. 291, 301; Jackson v. Dysling, 2 Caines 198; Robertson v. M’Niel, 12 Wend. 578; Terry v. Chandler, 16 N. Y. 354.

¶4 Judgment for the plaintiff.